Sovereignty, Power and Accountability in the British Constitution

Constitution and Codification

A set of principles, which may be written or unwritten, that establishes the distribution of power within a political system, relationships between governmental jurisdiction, the rights of citizens and the method of amending the constitution itself.

The process of setting out a constitution in an organised way in a single document. This form of a constitution therefore has a single source and is accessible to every citizen; codification of a constitution normally occurs at a pivotal moment in history such as a revolution.

Entrenchment of the Constitution

Entrenchment is the device which protects a constitution from short term amendment, this is because the constitution is too important of a document to be amended through radical change and a temporary government. Any change to a constitution must meet two tests: that there is widespread popular support for the change and that it is in the long-term interests of the country. Special arrangements are made to ensure that these two tests are met. An example of this could be a referendum to gather whether there is popular support for the amendment. Parliamentary procedures can ensure that it would be in the long-term interest of the state.

Nature of the UK Constitution: Uncodified and Flexible

Uncodified Nature

Uncodified means that the Constitution is not written down in one single document, parts aren't written at all and has more than one source. It is instead derived from several sources. We are therefore described as a single tier system as we do not have the power to entrench or safeguard our constitution.

Flexibility of the UK Constitution

The flexibility of the UK constitution makes sure that it can adapt to a changing environment without major upheavals. It is therefore said to be 'organic'. When society needs and values change the constitution can do so automatically through Parliament without undue delay.

Example: Authority of the British Monarch has declined since the 18th century and has been replaced by elected bodies and representatives. Power has simply moved away from the Monarch because of the flexibility within the constitution

Unitary Nature of the British Constitution

The British constitution falls unitarily rather than federally, meaning that sovereignty resides in one location rather than multiple. This is the centre although it is possible that some power may be distributed to regions and local governments, but this is not the same as sovereignty. Central sovereign power can overrule all other bodies and has the right to restore all political power to itself.Principle One - Parliamentary Sovereignty

Principles of the UK Constitution

Parliamentary Sovereignty

Parliamentary sovereignty is the doctrine that Parliament has absolute legal authority and can legislate on any subject of its choosing. Legislation cannot be overturned by any higher authority and no parliament may bind its successors.

Rule of Law

The rule of law defines the relationship between the state and its citizens, it comes under three main strands: No one can be punished without a trial. No one is above the law, and all are subject to the same justice. The general principles of the constitution, such as personal freedoms, result from judge-made common law, rather than parliamentary statute. It ensures that we are all treated equally under the law meaning that the courts can hold government ministers, police officers and public officials accountable if they have been negligent in their actions.

A Unitary State

In this context there is an important distinction to be made between unitary and federal constitutions. The traditional British constitution is unitary although the UK consists of four component nations it has been a highly centralised state, with legal sovereignty retained by Westminster. Subnational institutions do not have autonomous powers that are continually safeguarded, regional governments may be weak or non-existent and local governments have little power.

Parliamentary Government under a Constitutional Monarchy

Government takes place through Parliament under a Constitutional Monarchy. Government Ministers are politically accountable to Parliament and legally accountable to the Crown, and must face the verdict of the electorate every five years. Over the course of its term in the Commons a Government remains reliant on its majority to survive and enact its programme.

The Glorious Revolution of 1688 established the supremacy of Parliament over the Monarchy, the Constitutional Monarchy gradually came into place, the Monarch retained formal powers such as 'assent to legislation', but their usage was restrained. Since the progression of a separate head of government prerogative powers of the Monarch have been taken over by the Prime Minister, many actions are taken in the name of the Monarch for example 'HMRC' 'His Majesty's Revenue and Customs' and during the State opening of Parliament the Monarch will say 'my government will'. Though the government is politically dominant, this does not make it legally sovereign. Legal sovereignty - ultimate power to make laws - only lies with Parliament. Meaning that the government has to take the final decision from Parliament.

Most bills proposed by the government ultimately make it through the commons because of their majority however Parliament reserves the power to veto such proposals. In extreme circumstances Parliament can even dismiss a government through a vote of no confidence. The principle of parliamentary sovereignty must not distract from the fact that most political power normally lies with the government, this can be called 'political sovereignty'.

Sources of the UK Constitution

Statute Law

Some Acts of Parliament have greater constitutional significance than others and have changed the way in which we are governed, some historical examples of this, both historically and presently are the Great Reform Act 1832, which extended the franchise Parliament Act 1991 & 1949 which established the House of Commons as the dominant chamber of Parliament. These Acts of Parliament among other duties have the responsibility of establishing constitutional principle. Notably the Human Rights Act 1998 and the acts of devolution, Scotland Act 1998 & Government of Wales Act 1998 later succeeded by the Government of Wales Act 2006.

Statute Law remains one of the most important sources of the constitution as under the doctrine of Parliamentary Sovereignty, Parliament is the supreme law-making body of the United Kingdom meaning that they can appeal or amend any act of their choosing. There have been efforts to therefore decentralise power in the UK to protect these Acts from short term and reckless amendment.

Common Law

The term common law refers to laws created through historical usage and tradition. Judges who occasionally will have to declare and enforce common law treat it like any other rule of conduct that is well established and acknowledged by a majority of the population. Common law is arguably an important part of the UK constitution on the basis that it can sometimes protect basic rights and freedoms from government encroachment.

For the most part common law has been replaced by parliamentary statutes and under the European Convention of Human Rights which became enshrined in UK law in 2000. However occasionally, common law will be invoked by courts by citizens with a grievance against the government as there is no relevant Parliamentary Statute.

Whilst it is unwritten and not formally codified, the prerogative powers of the Prime Minister are considered to be common law as they are exercised by the PM on behalf of the Monarch.

Constitutional Conventions

A convention is an unwritten rule considered binding on all members of the political community. They cannot be challenged in law as such but have a moral force so great that they are rarely disputed anyway. They include the PM's ability to appoint their Cabinet and decide on a date for a general election. An important convention, known as the 'Salisbury Convention' states that the House of Lords should never block any legislation which appeared in the governing party's most recent election manifesto as they have a mandate to fulfil it. Another convention is how the Monarch must assent to Acts of Parliament, if the King were to refuse assent a constitutional crisis would occur.

Historical Principles and Authoritative Works

Similar to constitutional conventions, historical principles have become binding due to their age and period of usage. The most important historical principle being Parliamentary Sovereignty, additionally, we could add the concept of a Parliamentary government, that the authority of the government is drawn from Parliament and not directly from the people. The Rule of Law is a more recent development and presents the principles for equal rights.

Tradition

Similar to common law, constitutional tradition governs many of the rituals of the parliamentary government. Procedures in both Houses of Parliament, the Lords and the Commons are traditional in nature. The practice of allowing the Monarch to announce the programme for the coming Parliamentary year is a tradition.

European Union Law

The United Kingdom became a member of the European Economic Community on the 1st of January 1973, since the European Union. Treaties and legislation establishing the EU and judgements of the European Court of Justice have all become part of the UK constitution.

Treaty of Rome 1957

The Treaty of Rome established the EEC, which became the EU. It aimed to create a common market in Europe. The UK joined in 1973. EU law did take precedence over UK law in certain areas.

Treaty of Accession 1972

The Treaty of Accession 1972 allowed the United Kingdom, Ireland, and Denmark to join the European Economic Community, which later became the European Union. It marked a significant expansion of the EEC and brought new countries with different economic and political systems into the fold. The treaty included provisions for the gradual integration of these new members into the EEC's common market and other policies.

Maastricht Treaty 1992

The Maastricht Treaty, signed in 1992, marked a significant step forward in European integration. It established the EU as a political entity with three pillars: the European Community, the Common Foreign and Security Policy, and the cooperation in justice and home affairs. The treaty also introduced the euro as the common currency for participating EU member states.

Treaty of Lisbon 2009

The Treaty of Lisbon, signed in 2007, amended the Treaty on European Union and the Treaty establishing the European Community. It aimed to streamline the EU's decision-making processes, increase the transparency and accountability of its institutions, and enhance the role of the European Parliament. Some key changes included the creation of the High Representative of the Union for Foreign Affairs and Security Policy, the introduction of a permanent President of the European Council, and the establishment of a Charter of Fundamental Rights.

European Union (Withdrawal Agreement) Act 2020

The European Union (Withdrawal Agreement) Act 2020 was a piece of UK legislation that implemented the Withdrawal Agreement between the United Kingdom and the European Union. This agreement, negotiated as part of the Brexit process, set out the terms of the UK's withdrawal from the EU and its future relationship with the bloc. The Act, passed by the UK Parliament, gave legal force to the terms of the Withdrawal Agreement, including provisions related to the transition period, citizens' rights, and financial settlement.