It is necessary that we outline exactly where the foundation of our constitution originates. Statutes and judicial decisions provide the legal basis of our constitution, and although amendment of constitutional law has been shown to be conducted via normal legislation, one advantageous aspect of forming statute of constitutional nature is that the bills can be put to the whole House of Commons, rather than just a committee. Statutes such as the Magna Carta 1215, the Bill of Rights 1689, the Act of Settlement 1701 and more recently the Human Rights Act 1998, have outlined many of the fundamental rights and laws of the state which are otherwise relatively unclear. However, constitutional law from statutes can also be ambiguous, in that implied repeal of previous statutes is not necessarily accepted. The nature of case law is such that it is split into common law and statute interpretation. It is the latter which is important regarding our constitution, as an ongoing debate exists as to whether statute should be interpreted with the intention of parliament when they drew up the statute in mind, or whether statute should be interpreted in a way more relevant to modern society. This freedom of interpretation can make our constitution more adjustable to circumstances.
Our electoral system is such that it does tend to protect the rights of individuals. Our voting system of the ‘single transferable vote’ allows for representation based upon true strength, both locally and nationally. This system also gives minority parties a better chance, theoretically reducing majority party dominance in parliament. Our current system also helps to avoid coalition governments, which can be weak and ineffective. However, having established the parliamentary legislative supremacy over the constitution, we find that parliament can award and remove powers from ministers as and when it wishes. It is the Commons which is the dominant house at parliament, thus it can be said that our constitution is largely democratic as well, as the House of Lords only has the power of temporary veto on a bill in the Commons.
Earlier on, I referred to ‘convention’ being like the glue of our constitution. Clearly with an unwritten constitution, although much detail is contained in alternative documents, but the remaining rules are encompasses in this idea of convention. Convention can be seen as accepted political practice which is seen as binding, but it cannot be enforced by the courts. As with most aspects of the constitution of the constitution on the United Kingdom, convention has both positive and negative features. As convention isn’t legally binding, it can come from different sources, ranging from the Prime Minister to simple public support, showing the existent constitutional values already present in modern society. Convention is also adjustable depending upon the political society system in power, and can provide rapid and specific action as and when required, unlike with a written constitution. The evolutionary nature of an unwritten constitution like ours has caused a great deal of ambiguity as to whether custom has turned into a binding rule, and similarly, when a binding rule or convention should be converted into law. However, convention can be converted into law as and when necessary, when detailed clarification of an aspect of constitutional law is required. The main problem with convention is the same problem that underlies the constitution as a whole – it is too flexible. The whole idea of convention is very unofficial and lacks the legal backing which society requires to feel wholly protected by the state. A citizen cannot turn to the courts when needing help with a matter of convention; letters to MPs, public demonstrations etc. are their only way of being heard. Even for constitutional matters outlined in statute of judicial decisions, the U.K. does not have a specific constitutional court. The lack of legal backing to convention also means that our constitution is balanced upon a weak fear of the consequences of unconstitutional conduct, and that politicians play a huge role in our constitution, as we shall now discover.
The constitution of the U.K. is often referred to as a ‘political constitution,’ particularly because the nature of constitutional conventions is such that they only possesses as much power as politicians are actually willing to give them. Party politics has also become increasingly influential in the drawing up of statute law via the legislative process, perhaps more so than the wisdom of judges, a trend that has become more evident since parliament began to defeat the royal prerogative on important legislature, such as the Bill of Rights 1689 and the Act of Settlement 1701. This links strongly to our judgement from earlier on regarding parliamentary legislative supremacy, whereby it can be ascertained that legislature is largely controlled by the majority political party in the House of Commons, even more so if this majority exists in the House of Lords as well (although this is not the case currently – conservative majority in Lords, but not overall majority). Theoretically, royal assent has ultimate authority over whether a law is passed or not, though the fact that the royal veto has not been used since the reign of Queen Anne shows how little influence the Queen (or her commissioners) have over whether law is passed.
The last part of the constitution that needs to be outlined is the additional constitutions given to Scotland, Wales and Northern Ireland via the government’s policy of ‘devolution.’ Aspects of the U.K. constitution were handed down in statute form to The Scottish Parliament, and the Welsh and Northern Ireland Assemblies, delegating central government powers without relinquishing sovereignty over the countries. Although varying amounts of legislative power were given to each country (Scotland has broad legislative powers, whereas Wales has very little legislative power), Westminster largely maintains legislative power. The fact that each of these countries has its own constitution has been beneficial (except with Northern Ireland, where power has had to be reclaimed by Westminster), but central Parliament still largely has the power to act as it pleased over all of these constitutions, which are all subsidiary to the U.K. constitution. We can also note at this stage that the U.K. constitution is itself partially subsidiary to the European Convention 1972, and our laws cannot contravene those outlined in the convention.
Constitutional law is largely concerned with the structures and powers of government, and the protection of individuals by the state, and we have found that there are clear weaknesses in the constitution of the United Kingdom regarding these. Having established that the U.K. does actually have a constitution, are we right to go as far as Hailsham in describing the constitution as ‘one of the most successful political structures ever devised?’ Although I do believe that our constitution is good and successful in certain respects, I do still believe there is room for improvement. The constitution has stood the test of time until now, but I do believe that some form of written constitution would eventually be necessary to place some form of control over parliamentary legislative supremacy. Israel is one of the few countries to have part of its constitution written in an official document, with the rest left open like ours, so perhaps it would be worth seeing if this form of constitution could also be successful, as it is certainly safer than ours, and protects the rights of citizens better than ours. Bantham also describes our constitution as a ‘matchless constitution,’ which I find easier to agree with to an extent. The nature of our constitution is such that it has been able to evolve through many different political environments maintaining an air of traditionalism, and has avoided major revolutionary reforms, which have largely been the reason for the drawing up of many of the constitutions around the world. Nevertheless, despite the success up till now of our constitution, I think that the protection of citizen’s fundamental rights and scrutiny of governmental institutions are not prioritised sufficiently, and are to an extent sacrificed for the administrative ease that convention and not having a written constitution provide.
