The Changing British Political System: The British Constitution

1. The Changing British Political System:The British Constitution

2. 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

3. 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?

4. Dicey’s ‘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)

5. 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’

6. 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

7. Sources of the Constitution (2) • Conventions • Unwritten but accepted rules of behaviour • Monarch assents to legislation • Monarch appoints dominant party’s 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?

8. 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?

9. 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

10. 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

11. 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)

12. 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