Lecture 3 The Changing British Political System: The British Constitution

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Lecture 3The Changing British Political
SystemThe British Constitution

• Dr Tom Quinn
• GV204 The New British Politics
• 27 October 2009

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Constitutions

• Constitution set out relationship between
• State and individuals
• Different institutions of the state
• Constitutions define distribution of power within
  state and between state citizens
• Arend Lijphart, Patterns of Democracy (1999) 3
  dimensions of constitutions
• Written vs unwritten
• Flexible vs rigid
• Judicial review vs no judicial review

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British Constitution Features

• Uncodified (unwritten)
• Not written down in one place scattered across
  statute book, conventions, etc.
• Flexible
• No special provisions for changing constitution
• Can change with times but also susceptible to
  abuse?
• No judicial review
• Courts could not over-ride parliament (but EU
  law)
• Human Rights Act 1998 judicial activism?

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Diceys Twin Pillars of the Constitution

• Rule of Law and Parliamentary Sovereignty
• Equality before the law
• Instead of a constitution, Britain has the
  doctrine of parliamentary sovereignty
• The principle of parliamentary sovereignty means
  nothing more nor less than this, namely, that
  Parliament has, under the English constitution,
  the right to make or unmake any law whatever
  and, further, that no person or body is
  recognised by the law as having a right to
  override or set aside the legislation of
  Parliament. A.V. Dicey, Introduction to the
  Study of the Law of the Constitution (1885)

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Parliamentary Sovereignty

• Parliament has a monopoly of legitimate
  law-making power
• Historically no US-style judicial review by
  courts
• If we in Britain have a constitution at all,
  it is a one-sentence constitution stating that
  Parliament can make or repeal any law
  whatsoever. (F. F. Ridley, 1988)
• Gladstone The British Constitution presumes
  more boldly than any other the good sense and the
  good faith of those who work it

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Sources of the Constitution (1)

• Statute law
• Parliament Act 1911, European Communities Act
  1972, Scotland Act 1998
• Common law (judge-made law)
• Judicial decisions and Royal Prerogatives
• Freedom of speech
• Power to make treaties
• Doctrine of Parliamentary Sovereignty
• Works of authority
• Recognised guidance on constitution
• A.V. Dicey, An Introduction to the Study of the
  Law of the Constitution (1885)
• Hansard, Erskine May

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Sources of the Constitution (2)

• Conventions
• Unwritten but accepted rules of behaviour
• Monarch assents to legislation
• Monarch appoints dominant partys leader as PM
• All ministers drawn from Commons or Lords
• Collective cabinet responsibility
• Salisbury convention ended with Lords reform
• Conventions common to all political systems, e.g.
  no mention of electoral college in US
  Constitution
• How are conventions enforced?

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Sources of the Constitution (3)

• EU law
• Major modification of parliamentary sovereignty
• EU law can over-ride UK law in order to make
  single market work
• Factortame court case (1990)
• ECJ ruled that national courts could dis-apply UK
  laws that violated European law
• Nuclear option UK can leave EU, thus
  reasserting primacy of UK law ? parliamentary
  sovereignty intact?

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Constitutional Doctrine (1)

• The Unitary State
• Power enjoyed by sub-national govt can be revoked
  by Westminster
• Devolution has politically (but not legally)
  changed situation
• The Crown and Parliament
• Executive exercises powers once held by Monarch
• Prerogative powers
• Appointing ministers
• Dissolving parliament
• Appointing civil servants
• Declaring war
• Appointing officers in the armed forces
• Making treaties

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Constitutional Doctrine (2)

• Doctrine of Responsible Government
• Govt responsible to parliament resign if it
  loses vote of confidence
• Individual ministers responsible to parliament
• Govt responsible to electorate seeks mandate in
  a general election
• Collective Responsibility
• Ministers must defend Govt decisions or resign
• Related to if Govt defeated in parliament in
  no-confidence vote, it must collectively resign
• Collective responsibility occasionally waived,
  e.g. EEC referendum in 1975

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Constitutional Doctrine (3)

• Individual Ministerial Responsibility
• Ministers responsible for actions of their Depts
• Expected to resign if serious problems
• Expected to resign if they lie to parliament
• Weakening of the Doctrine
• Rapid turnover of ministers
• Ministries too big for one person to be held
  responsible
• Blurred lines of accountability esp. autonomous
  agencies
• Distinction between policy responsibilities
  (minister) and operational responsibilities
  (agency)

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Constitutional Doctrine (4)

• Mandate Theory of Government
• Govt claims right to implement policies supported
  in manifesto by voters in general election
• Assumption voters choose Govts in general
  elections (2-party system)
• To what extent can Lords or courts legitimately
  frustrate decisions of elected Govt?
• Conclusion
• UK constitution/political system ideal-type
  Westminster model
• Parliamentary sovereignty
• No judicial review
• Flexible constitution
• Unitary state
• But numerous changes to constitution and
  political system since 1997 explored throughout
  this course