The British Constitutional System

Introduction

Early history

Qualifying the power of the monarchy

Path to democracy

Characteristics of the present system

Feudal Monarchy

• Legacy of Roman Britain e.g. towns and roads• Invasion by Angles, Saxons and Vikings most

buildings destroyed and few stone buildings• Scotland, Wales and Ireland separate nations e.g.

Hadrian’s wall. • Norman Conquest in 1066. Doomsday Book [1085]

transformed the administrative state on feudal basis. Inventory of settlements, formed the basis for taxation. Beginning of the great Romanesque and Gothic building. Feudal service established.

• Feudal system still the basis of property law

Origins of modern legal system

Henry II established many features of common law, jury trial, legal uniformity by judicial circuits.

New remedies available in his own courts and abolition of trial by ordeal.

This common law is enforced throughout the land by itinerant justices, professional administrators of the law, all trained in one school.

1215: Signing of Magna Carta

Magna Carta sealed by King John. This set the founding principles for parliament and constitution. It defined some rights, legal practices (fair trial) and 'good lordship' - Set out what subjects could expect from their monarch and superiors.

It was forced on the monarch by the barons/lords

It placed real limitations on Royal Authority.

A committee of barons could overrule the King.

Due process of law is recognised from King downwards

Granted rights to London and other towns.

Origins of Parliament

• 1295 Model Parliament. Summoned by Edward I, and generally regarded as the first representative assembly - 2 Knights from each county, 2 Burgesses from each borough, 2 citizens from each city.Edward established control over Wales defeated the Scots (William Wallace, Braveheart).

Scotland remained separate nation with its own Parliament, legal system and educational system but monarchy combined in 1603 and Parliaments combined in 1707.

Henry VIII and the English Reformation

• Failure to lawfully divorce Catherine of Aragon• Following excommunication by the Pope the Act of

Supremacy 1534 made him supreme head of the Church of England;

• Nationalisation of the church was followed by the dissolution of the monasteries, with ecclesiastical income redirected for the benefit of the Crown.

• Religion became a central question for next two hundred years. Act of Uniformity 1559 established common prayer book and compulsory church attendance.

Elizabeth I

• She had powerful ministers e.g. Burghley and Walsingham but still ruled in the sense of being final decision maker. She personally appointed military commanders e.g. Lord Howard and Drake to defeat Spanish Armada 1588.

• Parliament already important for legislation and taxation but only sat for a total of 3 of the 45 years of her reign. Legislation could be vetoed and bills often failed to become laws because of lack of agreement between: commons, lords and Queen.

The English Revolution and the Path to Democracy

• Parliament had increased importance, especially for taxation• Charles I tried to raise taxation without Parliament e.g. Ship

Money. This attempt to rule without summoning parliament failed and led to national bankruptcy

• Imposition of new prayer book in Scotland sparked rebellion and he eventually had to summon Parliament for the funds to raise an army. When Parliament refused he attempted to arrest 5 members during a sitting of the House of Commons.

• Divine right of Kings called into question but he confronted Parliament rather than being prepared to negotiate.

• Charles I executed in 1649.• Oliver Cromwell becomes Lord Protector.

• The result of this clash is that Parliament has the right to regulate its own proceedings. The Speaker symbolically claims these privileges from the monarch at each opening of Parliament.

• 1660 restoration of monarchy under Charles II• James II once again attempted to undermine the

authority of Parliament with disastrous consequences.

English Bill of Rights

• William III and Mary II offered the throne in 1689 but with strict conditions attached:

• No army could be raised without parliamentary approval;• Taxation required parliamentary approval;• no special courts for political ends;• freedom of petition guaranteed;• free elections and annual parliaments;• freedom of speech inside Parliament;• protestant monarchy guaranteed, reinforced by Act of

Settlement 1701

Origins of Prime Ministerial Government

British Prime Minister emerged after the introduction of the Hanoverian monarchy. George I spoke no English and his son, George II had only limited command of the language. The result was that the affairs of government were increasingly conducted by the king’s ministers. These ministers had to be members of parliament, answerable to Parliament. Most prominent among these was the First Lord of the Treasury, referred to as Prime Minister. Sir Robert Walpole recognised as first modern PM.

A Democratic Parliament?

• House of Lords represented the peers of the realm. Mainly landowners with hereditary titles (barons, viscounts, earls, dukes etc), plus the church (archbishops and bishops).

• House of Commons elected but until 1832 the distribution of seats was based on medieval centres of population recognised by Royal Charter. Many large cities and towns had no representation in Parliament.

• No control over the conduct of elections. Bribery and corruption common place and no secret ballot.

Electoral Reform

• 1832 Reform Act changed the voting qualification to the £10 level which virtually doubled the franchise

• 56 rotten and pocket boroughs were abolished and these seats went to large cities and towns in midlands and north.

• 1867 Reform Act further reduced the voting qualification and redistributed more seats

• 1872 Secret Ballot introduced• 1883 Corrupt Practices Act and 1884 Reform Act regulated

elections further extended the franchise.• 1918 all adult males and women over 30 given right to vote.

Commons versus Lords

• Beginning of modern politics led to representative political parties Liberal Party and Labour Party with demands for popular policies e.g. education, pensions, later universal housing. All paid for from taxation on income and on property with the rich and landowners paying relatively higher rates. Liberal government elected in 1906 with large majority and popular mandate for change.

• 1909 People’s Budget blocked by conservative elements in the House of Lords in breach of convention leading to political crisis. No budget/finance bill meant no money to pay officials, army, police etc.

• House of Commons resolved to clip the wings once and for all of the House of Lords, but this was not possible without political support.

• After a second general election in 1910 demonstrated support for the Parliament Act, the King promised, if necessary, to create sufficient new lords to ensure a majority in both houses. At this point the Lords caved in and passed the Parliament Act.

Parliament Acts 1911 and 1949

• House of Lords could no longer veto legislation but could delay it for 2 years, 1949 Act reduced this to one year.

• House of Lords no power to veto or delay money bills, the previous convention put in statutory form.

• Maximum time between elections reduced from 7 to 5 years.

• House of Lords still able to amend legislation• Hereditary peers retained constitutional right to be

represented in Parliament until 1999. Now only 92 remain. Otherwise life peers.

Characteristics of the Constitution

• The historical constitution which developed incrementally through each of the events (and many more) mentioned here. Many of these aspects were enacted in statutory form.

• Heavy reliance on constitutional conventions, these are established rules of constitutional practice that determine conduct of the Queen, PM, ministers, civil servants and Parliament.

• Constitutional monarchy - the powers of the King or Queen have been qualified since Magna Carta. Now the role of the Queen is governed mainly by conventions e.g. Royal Assent to legislation guaranteed.

• Common law is a constitutional source. Where there is no other authority judge made law sets precedents that taken together form major parts of our law. Judges especially of the highest courts play a crucial role interpreting and applying the law, but there is no constitutional court.

The Diceyan Model

Professor Dicey in 1885 recognised: The fundamental principle of the constitution is Parliamentary Sovereignty, the concept is traced back to 1689. Parliament, comprising House of Commons, House of Lords with Royal Assent, has absolute power to pass or repeal any law. In theory no direct challenge is possible and Parliament cannot bind its successors.

The rule of law is Dicey’s second principle, it means government according to law and equality before the law, in essence that all public bodies must act lawfully within their powers.

Implicit in this concept is a separation of power between the executive branch and the courts who enforce the law.

What is ‘elective dictatorship’?

In light of the convention that the government must maintain its Commons majority to survive, the party managers (whips) can put enormous pressure on MPs of the ruling party to support the government line or risk defeat in a vote of confidence (and, in consequence, an election). In practice, this means that the government can be sure to get its legislative programme enacted. The fact that MPs of the governing party nearly always follow instructions from the whips allows the PM, cabinet (party machine) to steamroller policy through parliament. The concern is that its scrutinizing capacity may be compromised as a result.

The parliamentary system in Italy (Article 94) also depends on the government enjoying the confidence of parliament, but until recently with less stability, because the government has tended to be formed from a coalition of large parties and smaller parties or factions, any one of which might break lose triggering a vote of confidence: e.g. fall of Prodi government.

Queen and PM: Constitutional Monarchy

• Constitutional monarchy with Queen as head of state and in this capacity she performs some of the same ceremonial functions as the Italian President but has much less power, mainly represents the nation.

• Many conventions have developed which illustrate the emergence of democratic government;

• Royal assent to legislation guaranteed;• Leader of winning party will be invited by the Queen to become

Prime Minister and form the government;• On the opening of Parliament the Queen reads the Queen’s

speech declaring the policy objectives of her government but this is always written by the Prime Minister.

• PM chooses cabinet and other ministers, Queen only rubber stamps the appointments. Unlike in Italy ministers can be dismissed at any time without qualification.

• PM chairs cabinet, heads security service, co-ordinates role of government from a department based at No10 Downing Street.

• As head of the Civil Service PM can decide on the organisation of government departments without the need for parliamentary approval e.g. Ministry of Justice created in 2007 acquiring functions of Home Office (prisons) and Department of Constitutional Affairs (courts, judicial appointments and devolution).

• PM decides when to call an election within statutory max of 5 years.

Characteristics of the Contemporary Constitution

• EU law an important new source of law and increasingly influential;

• Human Rights Act 1998 effectively incorporates European Convention on Human Rights into domestic law as a surrogate British Bill of Rights;

• Devolution of power to Scotland, Wales and Northern Ireland with their own parliament or assembly;

• Higher judicial profile and greater separation of powers with the introduction of a Supreme Court to replace the House of Lords but no constitutional court;

• Freedom of Information Act and general trend towards codification.