The Nature and Sources of the British Constitution (AQA A-Level Politics): Revision Notes

The Nature and Sources of the British Constitution

Introduction

Understanding a constitution is like understanding the rules of a sport. Just as footballers must follow the offside rule and play with a set number of players, politicians must operate within constitutional rules. The constitution provides the framework for how politics is conducted. As the nineteenth-century political journalist Walter Bagehot observed: "On all great subjects ... much remains to be said and of none is this more true than of the English Constitution."

Evaluating a constitution

Not all constitutions reflect the reality of politics in their countries. In authoritarian states, constitutional promises may be meaningless.

A well-functioning constitution in a Western liberal democracy should demonstrate the following characteristics:

• Free and fair elections that are genuinely democratic
• Protection of human rights and individual freedoms, with respect for personal conscience and tolerance
• Balance between individual and collective rights ensuring both are protected
• Clear distribution of power showing where decision-making authority lies and establishing the location of sovereignty (final power and authority)
• Mechanisms for resolving conflicts when normal decision-making breaks down, such as during the Brexit crises of 2016 and 2019
• Accessibility and clarity that encourages citizen participation in the political process
• Flexibility and adaptability to changing circumstances whilst maintaining core values and national identity
• Rule of law upheld through an independent judiciary that treats everyone equally regardless of position, privilege or wealth

A strong constitution promotes political stability and shared prosperity across society.

The nature of the British Constitution

Unlike the US Constitution, which visitors can view in the National Archives in Washington DC, the British Constitution cannot be seen in one place. When journalist Woodrow Wyatt asked Prime Minister Margaret Thatcher for a copy of the British Constitution, the question was ironic. The British Constitution exists in multiple places and various forms.

Key characteristics

Uncodified

The British Constitution is uncodified, meaning it is not contained in one single document or place. This makes it fundamentally different from most modern constitutions, such as the American Constitution, which are written down in a single authoritative document.

Unitary

The British Constitution is unitary, meaning most power lies with the centre at Westminster Parliament. This contrasts with federal systems like the USA and Germany, where considerable power lies with individual regions or states. The Tenth Amendment of the US Constitution explicitly reserves powers not delegated to the federal government to individual states.

Parliamentary sovereignty

Parliament has the final say on what the Constitution contains. This principle is sometimes expressed as "No parliament can bind its successor", meaning any law passed by one elected parliament can be changed or repealed by a later parliament.

Rule of law

The British Constitution operates under the rule of law, meaning the law applies equally to everyone, including those who make the law. Prime ministers and ministers must not exceed their lawful powers. If they do, their actions can be challenged in the courts and they can be found guilty of acting ultra vires (beyond the law).

Comparison with the US Constitution

Parliamentary sovereignty makes the British Constitution flexible and adaptable. It can be changed simply by an Act of Parliament. By contrast, the US Constitution is sovereign, meaning all laws passed by Congress must comply with it. Formal amendment of the US Constitution requires complex procedures, making changes rare and difficult.

The main sources of the British Constitution

The British Constitution is derived from six main sources, each contributing different elements to the overall constitutional framework.

Statute law

Statute law comprises Acts of Parliament that have been passed by both houses of parliament and received royal assent. This forms the most important source of the British Constitution.

Constitutional statute law includes laws that define fundamental aspects of governance and rights:

• Who can vote: The Representation of the People Act 1969 lowered the voting age from 21 to 18
• Human rights: The Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law
• Institutional reform: The Constitutional Reform Act 2005 established the UK Supreme Court
• Devolution: The Wales Act 2017 devolved further powers to the Welsh Parliament/Senedd Cymru

Before Brexit in January 2020, European law indirectly formed part of the British Constitution. European laws and treaties (such as the Lisbon Treaty 2007) automatically took precedence over Westminster laws and were binding on the UK government. This represented a clear, if ultimately temporary, limit on parliamentary sovereignty.

Common law

Common law comprises laws or rights passed down over the years through legal judgements in the courts, a process known as judicial precedence. It is sometimes called case law or judge-made law. Senior judges create legal precedents through their rulings, which then guide future decisions.

Examples of common law include:

• Freedom of expression
• The criminality of murder (though no single statute makes murder illegal, it has always been recognised as a crime by the courts)

Royal prerogative

The royal prerogative consists of residual powers exercised in the name of the Crown. In modern practice, these powers are exercised by the prime minister and government, not the monarch. The modern monarchy must remain above party politics and plays only a ceremonial role.

Royal prerogative powers range from high-profile to obscure:

High-profile powers:

• Seeking dissolution or prorogation (suspension) of parliament
• Appointing ministers
• Making international treaties
• Calling general elections

Less well-known powers:

• Issuing UK passports

The government guide on passport issuance states: "There is no statute law governing the grant, refusal of British passports, which are issued in the United Kingdom...passports are issued in the UK at the discretion of the Home Secretary. They are issued in exercise of the Royal Prerogative, which is an executive power that doesn't require legislation."

The royal prerogative significantly boosts the powers of the prime minister and the executive branch.

Conventions

Conventions are the "oil and grease" of the British Constitution whilst laws are the "nuts and bolts". Conventions are unwritten, generally agreed rules and procedures that enable politics and parliament to function efficiently and smoothly. They are not legally binding but are widely respected.

Forming a government after elections

After a general election, the monarch formally invites the leader of the largest single party to form a government. This is straightforward when one party wins an overall majority, as in 2019.

Royal assent

Perhaps the most important legislative convention is that the monarch gives royal assent to all bills passed by both houses of parliament. The last time royal assent was withheld was in 1707, when Queen Anne refused to sign the Scottish Militia Bill. Denial of royal assent today would create a constitutional crisis.

When conventions are broken

Breaking conventions can lead to serious problems and deadlock. In March 2019, Speaker John Bercow cited a 1604 convention to prevent Prime Minister Theresa May from bringing her Brexit withdrawal deal before the Commons for a third time in that parliamentary session, causing significant parliamentary disruption.

Works of authority

Works of authority are arguably the least visible sources of the British Constitution. They comprise influential books and documents dealing with parliamentary procedures, governmental responsibilities and ministerial duties. These texts provide guidance and interpretation but have no formal legal status.

Walter Bagehot's The English Constitution (1867)

Bagehot distinguished between "dignified" and "efficient" aspects of the Constitution. The monarch represented the dignified part, having no real political power by the 1860s. The cabinet held most real power, emerging from the House of Commons, which Bagehot called "the ultimate authority in the English Constitution".

A.V. Dicey's Introduction to the Study of the Law of the Constitution (1885)

Dicey, an Oxford law professor, identified the main characteristics of the British Constitution, including his "twin pillars" of parliamentary sovereignty and the rule of law. He established conventions such as "The King must assent to, or (as it is inaccurately expressed) cannot 'veto' any bill passed by the two Houses of Parliament."

Dicey strongly asserted parliamentary sovereignty, stating that parliament was "an absolutely sovereign legislature" with "the right to make or unmake any law whatever". He reinforced this by quoting eighteenth-century Swiss political theorist Jean-Louis de Lolme: "parliament (in England) can do everything but make a woman a man and a man a woman."

Erskine May's Parliamentary Practice (first published 1844)

Often called "the Bible of parliamentary procedure", Erskine May (most recently updated in 2019) is regularly referenced by the Speaker of the Commons when making rulings about parliamentary business and debates. It includes standing orders of each chamber, historical precedents and key Speaker rulings.

The Cabinet Manual (2010)

Produced by the Cabinet Office at the start of the 2010 coalition government (the first in over 60 years), this 110-page guide explains how British government and parliament work. It covers ministerial conduct, cabinet composition and parliamentary scrutiny of government.

Prime Minister Gordon Brown initiated the project. David Cameron explained its purpose: "The Cabinet Manual sets out the internal rules and procedures under which the government operates. For the first time the conventions determining how the government operates are transparently set out in one place. Codifying and publishing these sheds welcome light on how the government interacts with the other parts of our democratic system."

Authoritative opinions and international agreements

Authoritative opinions are views and definitions regarded as the final word on an issue. However, they remain opinions without the same power as laws and can be easily overruled by parliamentary statute. They function similarly to conventions in this respect.

International agreements include treaties and protocols the UK has signed, such as the European Convention on Human Rights and climate change agreements. Whilst these remain in place, the government is obliged to abide by their terms or face legal challenges in the courts.

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