3 - Constitution of the UK

Question 1

What is the ‘United Kingdom’?

Answer 1

Since 1992, the United Kingdom has consisted of England, Wales, Scotland, and Northern Ireland.

Question 2

What is a constitution?

Answer 2

A constitution is defined as ‘a code of rules which aspire to regulate the allocation of functions, powers, and duties among the various agencies and officers of government, and defines the relationship between these and the public.’

In other words ‘That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state.’

Modern constitutions in democratic states depend on the consent of the public to be governed according to the principles of the constitution
.
A fundamental principle of constitutional democracy is the ‘separation of powers,’ which prevents any single state organisation from becoming too powerful, ensured through a system of checks and balances.

This principle is underpinned by a system of laws that apply equally to everyone, including the most powerful.

Question 3

What is the Monarch’s current role in the UK?

Answer 3

The Monarch’s power is largely symbolic, with actual political power held by the Executive (government).

The King cannot raise taxes or govern directly, though government activities are still carried out in the monarch’s name.

Key symbolic powers include:
- Appointing the Prime Minister
- Dissolving Parliament in certain circumstances
- Giving Royal Assent to Acts of Parliament
- Law-making power is vested in the ‘King-in-Parliament.’

Question 4

What is the Royal Prerogative?

Answer 4

The royal prerogative refers to powers theoretically vested in the monarch that do not require parliamentary consent.

In practice, these powers are exercised on the advice of the Prime Minister or senior government ministers.

Examples of prerogative powers include:
- Summoning and proroguing Parliament
- Giving pardons
- Issuing passports
- Mobilising the armed forces and declaring war
- Negotiating treaties

Question 5

Organisations of Government

Answer 5

The UK government structure consists of three main bodies:

1. The Monarch (Head of State): His approval is required for Acts of Parliament, giving him a place in the legislature.
2. The Executive: Partially overlaps with Parliament, but responsible for government functions.
3. The Judiciary: Independent from both Parliament and the Executive.

There are overlaps between the Executive and Parliament, covered under ‘Separation of Powers’ principles.

Question 6

Provide a summary to the historical development of the UK.

Answer 6

• The United Kingdom is a constitutional monarchy.
• The United Kingdom consists of England, Scotland, Wales and Northern Ireland.
• A constitution is a code of rules regulating the relationship between citizens and the agencies of the state.
• The Magna Carta (1215) is often referred to as the first and fundamental constitutional document of the country, which tried to establish that the monarch was not above the law.
• The Bill of Rights (1689) is seen as establishing the concept of parliamentary sovereignty and is still referred to today as a key source of constitutional law.
• The activities of government are carried out in the name of the monarch.
• The monarch has special powers called ‘prerogative powers’ but these are effectively exercised now by the Prime Minister.
• The monarch cannot create or change the law.

Question 7

What is ‘Sovereign Power’?

Answer 7

In constitutional law, ‘sovereign’ can mean the monarch or the overall power of the government.

Sovereign power is the authority exercised by the government through its various agencies.

Dicey’s definition refers to the distribution and exercise of this power, which is divided among three main state functions:
- Legislature
- Executive
- Judiciary

Question 8

What is the ‘distribution and exercise of power’ in the UK?

Answer 8

Power in the state is divided among three main bodies:

1. Legislature: Enacts new laws and amends or repeals existing ones. In the UK, this is done by the ‘King in Parliament,’ meaning the House of Commons, the House of Lords, and the King’s role in granting Royal Assent.
2. Executive: Formulates and implements policy, consisting of the Prime Minister, Cabinet, government departments, and local councils.
3. Judiciary: Enforces laws and adjudicates disputes between individuals and between individuals and the state.

Question 9

Is the UK’s constitution codified?

Answer 9

Dicey’s definition refers to the body of written and unwritten rules that regulate the functions and powers of the state.

Unlike countries like the USA, the UK does not have a single codified constitution.

However, it is inaccurate to say the UK has no written constitution. The UK’s constitution is uncodified, meaning that the rules exist in various documents but not in a single consolidated source.

Question 10

Where do constitutional rules come from?

Answer 10

Constitutional rules in the UK come from three main sources:

Legislation: Acts of Parliament, which can either be ordinary statutes or constitutional statutes, depending on their subject matter.
Case law: Principles established by court rulings, especially in relation to state power and citizens’ rights.
Constitutional conventions: Unwritten rules about the conduct of government, such as the monarch not refusing royal assent.

Question 11

What are the written sources of constitutional rules?

Answer 11

The primary written source of constitutional rules is Acts of Parliament, though not all statutes are constitutional in nature.

According to Laws LJ in Thoburn v Sunderland City Council (2002), constitutional statutes are those that condition the legal relationship between the citizen and the state or affect fundamental constitutional rights.

Examples of constitutional statutes include:
- Magna Carta (1215)
- Bill of Rights (1689)
- Human Rights Act (1998)

Question 12

What is judicial precedent in constitutional law?

Answer 12

Judicial precedent is the body of law that develops from court decisions and common law principles, particularly around the rights of citizens against the state.

A key example is Entick v Carrington (1765), where the court held that government agents could not search a person’s property without legal authority. This established the rule that the state cannot exercise power unless it is expressly authorised by law.

Question 13

What are constitutional conventions?

Answer 13

• Constitutional conventions are informal, unwritten rules about how government operates.
• Though not legally enforceable, conventions are respected and adhered to in practice.
• They evolve over time and reflect political norms.

An example of a constitutional convention is that the monarch does not refuse royal assent to Bills once passed by both Houses of Parliament.

Question 14

What is the purpose of constitutional rules?

Answer 14

Constitutional rules regulate the exercise of power by the state to ensure predictability, accountability, and fairness in governance.

The core principles of constitutionalism include:
- Government power must be exercised within legal limits.
- Power should be dispersed among different state bodies to prevent concentration in one body.
- The government must be accountable to the people.
- The constitution protects citizens’ fundamental rights and freedoms.

Question 15

What makes the UK’s constitution flexible?

Answer 15

The UK constitution is uncodified and has evolved over time, meaning it can adapt without needing a formal amendment process.

In contrast, constitutions like the USA’s are entrenched, meaning amendments require special legislative procedures, such as a two-thirds majority in both houses of Congress and ratification by three-quarters of the states.

The advantage of an entrenched constitution is greater certainty and stability, but the UK system’s flexibility allows for continuous evolution.

Question 16

Provide a summary of the defining features of the UK constitution?

Answer 16

• The UK constitution is uncodified.
• The UK constitution has evolved over centuries of political change.
• The UK constitution has the capacity to evolve without special procedure.
• Constitutional rules in the UK are made up from a combination of legislation, case law and accepted practice.
• The UK constitution is quite significantly reliant on conventions.
• There is a lack of certainty and formal security for constitutional rights.
• However, the UK constitution is also ‘flexible’, meaning that it can change and adapt to social and political developments.

Question 17

What is the role of Parliament in the UK?

Answer 17

Parliament is the supreme legislative body of the United Kingdom, sitting at Westminster in London.

It is responsible for making and unmaking laws and consists of two Houses within the symbolic power of the King:
- The House of Commons: An elected body of 650 members from various political parties.
- The House of Lords: An unelected body of life peers, hereditary peers, and bishops.

The Sovereign (King-in-Parliament) acts with the advice and consent of Parliament but does not routinely sit in Parliament.

Question 18

What are the key functions of Parliament?

Answer 18

• Debate and scrutinise proposed legislation.
• Propose amendments to legislation.
• Hold the executive to account by extracting information about its policies and actions.
• Scrutinise public expenditure and taxation.

While most legislation originates from the executive, Parliament’s role is to ensure these proposals are thoroughly examined.

Question 19

What is the relationship between the House of Commons and the House of Lords?

Answer 19

The House of Commons is the more important chamber as it is democratically elected and responsible for key decisions like public finances (e.g., tax law).

The House of Lords acts as a check on the Commons by scrutinising and amending legislation but cannot block or amend financial legislation.

The Lords’ approval is generally required for legislation to receive royal assent and become law, though government defeats in the Lords usually result in amendments rather than rejection of the Bill.

Question 20

What was the impact of the Constitutional Reform Act 2005 on the UK Parliament?

Answer 20

The Constitutional Reform Act 2005 (CRA) addressed concerns about the separation of powers between the judiciary and the other two branches of state.

Before the CRA, the law lords (members of the House of Lords) served as the highest court in the UK.

The CRA created the UK Supreme Court and reformed the role of the Lord Chancellor, removing mixed constitutional roles that blurred the boundaries between the branches of government.

Question 21

Provide a summary for the role of Parliament.

Answer 21

• Parliament is the supreme legislative body of the UK.
• Parliament can ‘make or unmake’ any law it wishes.
• The House of Commons is made up of elected Members of Parliament.
• The House of Lords is not elected.
• It may scrutinise and amend legislation approved by the House of Commons.
• The Constitutional Reform Act 2005 led to reorganisation of the House of Lords’ relationship with the judiciary.

Question 22

What is the role of the Executive in the UK?

Answer 22

The Executive is responsible for formulating and implementing government policy.

It is structured as follows:
- At the apex: The Monarch (with nominal and symbolic power).
- Prime Minister and the Cabinet: Senior government ministers called Secretaries of State.
- Government departments: Run by politically independent civil servants, responsible for administering the state.

Question 23

Where do government departments derive their powers?

Answer 23

Government departments derive their powers from two sources:

• Statute: Legislation approved by Parliament for specific purposes.
• Common law: Powers recognised by the courts.

They also exercise powers under the royal prerogative, which are historic powers not formally approved by Parliament but considered legitimate and exercised by ministers in the monarch’s name.

Question 24

What is the principle of delegation of power within the Executive?

Answer 24

Powers granted to ministers are, in principle, exercised by those ministers, but delegation is allowed for administrative efficiency.

Ministers remain politically responsible, but powers can be lawfully delegated to civil servants in the same department.

Delegation may be challenged if it is to an official of insufficient seniority.

Question 25

What are the limits on the power of the Executive?

Answer 25

The government can only act when expressly authorised by statute or common law.

If the government exceeds its powers, the Administrative Court may intervene if a claim is brought against it.

The legal process to challenge the government’s actions is called judicial review, allowing individuals or groups to contest unlawful actions by the Executive.

Question 26

What is the role of local government in the UK?

Answer 26

Local government, including city, county, and district councils, is part of the broader Executive, responsible for implementing central government policy locally (e.g., collecting council tax, maintaining highways, building housing).

Like central government, local authorities are regulated by Parliament and subject to judicial review.

Question 27

Provide a summary of the role of the executive.

Answer 27

• The central Executive means the government, i.e., the departments run by the Secretaries of State, which create and implement government policy. The head of the government is the Prime Minister.
• Central government in the UK is divided into departments of state or ‘ministries’, each responsible for particular areas of government policy and implementation.
• The powers of government departments include the power to create and implement secondary legislation.
• Delegation of power within the Executive fulfils an important function: ministers cannot personally carry out all the functions of his or her ministry.
• The role of local government is, in part, to oversee the implementation of central government policy in local areas.
• The actions of both central and local government are challengeable legally through the process of judicial review.

Question 28

What is the role of the judiciary in the UK?

Answer 28

The judiciary is responsible for:
- Resolving disputes between individuals.
- Deciding criminal cases.
- Reviewing the legality of government actions through judicial review in the Administrative Court.

Judicial review focuses on whether the government lawfully exercised its powers.

Question 29

How has judicial independence been strengthened by the Constitutional Reform Act 2005?

Answer 29

The CRA reformed the office of the Lord Chancellor, transferring most judicial functions to the Lord Chief Justice.

It established the Supreme Court as the highest court in the UK, replacing the House of Lords’ judicial function.

It created the Judicial Appointments Commission, ensuring the independence of judicial appointments from the political sphere.

Question 30

How does the judiciary act as a guardian of the constitution?

Answer 30

The judiciary, especially the Supreme Court, protects the constitution by:
- Reviewing the validity of laws passed by devolved legislatures.
- Ensuring the government exercises powers within the limits set by Parliament.
- Protecting individuals’ rights from state encroachment, as recognised by Lady Hale, former President of the Supreme Court.

Question 31

Provide a summary for the role of the judiciary.

Answer 31

• The role of the judiciary is to interpret the will of Parliament expressed in legislation, interpret and apply case law, and restrain unlawful acts – including those of the Executive.
• The process by which parties can challenge the legality of governmental decisions and actions is known as ‘judicial review’.
• The CRA 2005 brought in a number of key reforms which have arguably further strengthened the independence of the judiciary
• The UK Supreme Court sees itself as a ‘guardian of the constitution’.

Question 32

What are constitutional conventions?

Answer 32

“Rules of constitutional practice that are regarded as binding in operation but not in law.”

Question 33

What is the function of conventions in the context of an uncodified constitution?

Answer 33

In an uncodified constitution, conventions serve to:
- Fill in gaps and develop constitutional rules informally without resorting to law.
- Arise naturally over time, creating an understanding of appropriate behaviour in political life.
- Impose a moral obligation on political actors to adhere to these conventions.
- Adapt with changing standards over time.
- Underpin the Cabinet system, define ministerial responsibilities, and regulate relations between the House of Lords and House of Commons, the Executive and Monarch, and the judiciary and other state organisations.

Question 34

What are the key conventions relating to the legislature?

Answer 34

Key conventions relating to the legislature include:
- The House of Lords should defer to the House of Commons.
- The House of Lords should not reject any government legislation at second reading that has been passed by the House of Commons and carries out a manifesto commitment (Salisbury-Addison convention).
- Financial bills should only be introduced by a Cabinet minister in the House of Commons.
- The Westminster Parliament will not usually legislate on devolved matters in Scotland, Wales, or Northern Ireland without the consent of the devolved administration (Sewel Convention).
- A new convention has emerged post-2013, suggesting the House of Commons should be consulted before the government embarks on significant foreign policy initiatives involving armed forces.

Question 35

What conventions govern the executive branch of government?

Answer 35

• The monarch acts on the advice of Ministers, such as in proroguing Parliament.
• The monarch will not refuse royal assent to bills passed through Parliament, maintaining the democratic foundation of government.
• The monarch appoints the Prime Minister as the leader of the political party that commands confidence in the House of Commons.
• The Prime Minister selects Cabinet Ministers, and both the Prime Minister and Chancellor of the Exchequer should be MPs.
• Following a ‘vote of no confidence’ by the House of Commons, the government should resign and advise the monarch to dissolve Parliament, although the Fixed-term Parliaments Act 2011 affects this.
• Consent from the monarch is required for legislation affecting the monarchy’s interests.

Question 36

What does ministerial responsibility under CMR entail?

Answer 36

Ministerial responsibility comprises two conventions: Collective Ministerial Responsibility (CMR) and Individual Ministerial Responsibility (IMR). Key points include:

CMR:
- Confidential discussions among ministers.
- Ministers must publicly support agreed policies or resign (e.g., Robin Cook, Boris Johnson, and David Davies).
- The united front is essential for Parliament’s confidence in the government, leading to potential resignation after a vote of no confidence.

Question 37

What does ministerial responsibility under IMR entail?

Answer 37

Ministerial responsibility comprises two conventions: Collective Ministerial Responsibility (CMR) and Individual Ministerial Responsibility (IMR). Key points include:
IMR:
- Regulates ministerial responses to significant departmental failings.
- Traditionally, ministers would resign for significant problems, but this is less common due to government expansion.
- A distinction is made between operational failures (civil service fault) and policy failures (ministerial responsibility).

Question 38

What is the Ministerial Code, and how does it relate to ministerial responsibility?

Answer 38

The Ministerial Code is:
- A recent addition to rules governing ministerial responsibility, codifying conduct standards for ministers.
- Not a convention or enforceable law but described as a form of ‘soft law’.
- Accessible online and based on the seven principles of public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.
- The Prime Minister is the ultimate arbiter of the Code’s enforcement, determining resignation cases, sometimes with independent advice.

Question 39

What conventions govern the judiciary?

Answer 39

Conventions related to the judiciary stipulate that:
- Judges must not engage in political activity, as this risks judicial bias and undermines fair trial rights.
- Parliament must refrain from criticising judges’ professional conduct.
- Executive criticism of the judiciary may offend the separation of powers and rule of law, as exemplified by Boris Johnson’s comments on the Supreme Court’s ruling regarding the prorogation of Parliament.

Question 40

How do conventions relate to the law in the UK?

Answer 40

In conflicts between law and convention, the law prevails.

While the Courts cannot enforce conventions, breaches may have political consequences.

In R (Miller) v Secretary of State for Exiting the EU [2017], the Supreme Court ruled that the government was not legally required to seek the Scottish Parliament’s consent before triggering Article 50, acknowledging the Sewel Convention as a non-enforceable guideline.

Question 41

Provide a summary of constitutional conventions in the UK.

Answer 41

• The purpose of conventions is to establish constitutional principles which may not be written down or codified
• Law may be enforced, but conventions may not.
• Conventions relating to the legislature include that the House of Lords must defer to the House of Commons.
• Conventions relating to the executive include that the monarch follows the advice of his Ministers.
• Conventions relating to the judiciary include that Judges must not be politically active.
• The Courts will recognise and protect conventions but cannot legally enforce them.