The Concept of the British Constitution

A constitution is a set of laws on how a country is governed. The British Constitution is unwritten in one single document, unlike the constitution in America or the proposed European Constitution, and as such, is referred to as an uncodified constitution in the sense that there is no single document that can be classed as Britain's constitution. The British Constitution can be found in a variety of documents. Supporters of our constitution believe that the current way allows for flexibility and change to occur without too many problems. Those who want a written constitution believe that it should be codified so that the public as a whole has access to it– as opposed to just constitutional experts who know where to look and how to interpret it. Amendments to Britain’s unwritten constitution are made the same way – by a simple majority support in both Houses of Parliament to be followed by the Royal Assent.

The British Constitution comes from a variety of sources. The main ones are:

Statutes such as the Magna Carta of 1215 and the Act of Settlement of 1701; Laws and Customs of Parliament; political conventions
Case law; constitutional matters decided in a court of law
Constitutional experts who have written on the subject such as Walter Bagehot and A.V Dicey.

There are two basic principles to the British Constitution:

The Rule of Law and the Supremacy of Parliament

The Rule of Law is an aspect of the British Constitution that has been emphasized by A V Dicey and it, therefore, can be considered an important part of British Politics. It involves:

The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities.
There can be no punishment unless a court decides there has been a breach of law.
Everyone, regardless of your position in society, is subject to the law.

The critical feature to the Rule of Law is that individual liberties depend on it. Its success depends on the role of trial by jury and the impartiality of judges. It also depends on Prerogative Orders.

How relevant to 21st British politics and society is the Rule of Law?

Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey’s code with an increase in things such as:

the Official Secrets Act the attempt to remove an individual’s right to trial by jury the activities of the Secret Service (especially after September 11th) removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997). The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War.

However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britain’s secret services (though they may not know if they are being investigated or not!) It is agreed with some justification that a modern society needs bodies like MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations.

Also there are bodies that theoretically oversee the activities of government agencies and their work – such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.

The development of the supremacy of Parliament stemmed from the English Civil War and has expanded ever since and is a dominant theme in British Politics. Those MP's who represent the public via representative democracy, have been handed the power to assess, pass or reject legislation. In every sense, the supremacy of Parliament is the backbone of British Politics and is only possibly threatened by aspects of the work of the European Commission and other European Union institutions.

Parliament can pass, repeal and alter any of Britain’s laws. This is one of the major powers that a government has. The Conservatives lead by Margaret Thatcher banned trade unions at GCHQ believing that they had no place in an organisation that is of great importance to Britain’s national security. This decision was reversed in 1997 by the newly elected Labour government of Tony Blair. Parliament also has the power – after going through its own parliamentary processes – of altering its own laws.

In theory there is no body that can declare a law passed by Parliament as unconstitutional - though the full impact of the European Court is not yet known in 2002. Courts have taken on government decisions over technicalities such as when Michael Howard as Home Secretary sent the Jamie Bulgar killers to prison for an unspecified term. The Courts deemed this illegal as they decided that only a person working within the judiciary had the right to come to this decision and that a specified term had to be given as opposed to a sentence "at Her Majesty's Pleasure".

If a government has a healthy majority, such as the current Labour government does, then there is little that can be done to stop it passing laws. The impact of the European Court will be interesting. To date, the European Council has passed laws which Britain has to implement (such as recent environmental legislation) but it is unlikely that the European Court will decide that a law that has gone through the due political process in Britain will be illegal. Once this happens, then arguably the need for an independent British legal system will be redundant. One of the fears raised by anti-European campaigners is just that – our laws, taxes, way of life etc. will be determined by a European directive and that Britain will lose all forms of independence in all spheres of government.

Are any limitations to the Supremacy of Parliament? If the government has a healthy majority and there is no backbench revolt, then apparently there is little that can be done while that government is in power.

However, every five years, the government is very accountable to the British people. This is one of the very corner stones of representative democracy. After the April 2002 Budget, Tony Blair stated categorically that it will be the British electorate that will decide if there has been an improvement in the National Health Service and whether the increase in National Insurance rates was justified.

Second, a government even with a healthy majority, has to be sensitive to public opinion simply because there is a general election at the end of its five year life. One of the reasons put forward for the heavy defeat of the Tories in 1997 was that they had lost touch with what the people wanted; lost touch with public opinion.

Third, pressure groups do exert power on governments. It is impossible to measure this power as no government will admit to introducing legislation or reforming established law, simply because a pressure group has asserted itself.

Fourth, the government itself as represented by the executive, the Cabinet, may lose touch with rank and file backbench opinion. The 2001 Labour government has a very healthy parliamentary majority of 167 and can afford to upset a large chunk of backbenchers. In Easter 2002, over 100 Labour MP’s signed a petition stating that the government should not get involved in any military campaign against Iraq. At the time, the government was very bellicose about a military campaign. Within a week, this had dampened down and the public talk by the Cabinet was far more muted and the language used was far more diplomatic. Was this to do with the petition? Again, few if any governments will admit that they would have changed their policies as a result of pressure. But a government facing a vocal backbench rebellion looks weak and disunited. The public’s perception of such a government may not be good.

In the same month, April, 119 Labour MP's signed up to LATE (LabourAgainst the Euro). Even if all 119 ganged up against the government over certain bills, the government still has a majority of 48. However, it is possible that the government will have to handle this group with skill as a revolt by 119 MP's simply looks bad.

Therefore, the theory of the Supremacy of Parliament whereby a government can do as it wishes, does, in fact, have limitations. The current Labour government has faced internal party questions over the health service, education, defence policy and sleaze – so its huge parliamentary majority does not guarantee the supremacy of the executive within Parliament.