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The Changing British Political System: The British Constitution.

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1 The Changing British Political System: The British Constitution

2 Constitutions Constitution: set out relationship between Constitution: set out relationship between 1. State and individuals 2. Different institutions of the state Constitutions define distribution of power within state and between state & citizens Constitutions define distribution of power within state and between state & citizens Arend Lijphart, Patterns of Democracy (1999) – 3 dimensions of constitutions: Arend Lijphart, Patterns of Democracy (1999) – 3 dimensions of constitutions: Written vs unwritten Written vs unwritten Flexible vs rigid Flexible vs rigid Judicial review vs no judicial review Judicial review vs no judicial review

3 1. Uncodified (‘unwritten’) Not written down in one place – scattered across statute book, conventions, etc. Not written down in one place – scattered across statute book, conventions, etc. 2. Flexible No special provisions for changing constitution No special provisions for changing constitution Can change with times – but also susceptible to abuse? Can change with times – but also susceptible to abuse? 3. No judicial review Courts could not over-ride parliament (but EU law) Courts could not over-ride parliament (but EU law) Human Rights Act 1998 – judicial activism? Human Rights Act 1998 – judicial activism? British Constitution – Features

4 Dicey’s ‘Twin Pillars’ of the Constitution Rule of Law and Parliamentary Sovereignty Rule of Law and Parliamentary Sovereignty Equality before the law Equality before the law Instead of a ‘constitution’, Britain has the doctrine of parliamentary sovereignty 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) ‘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 Parliament has a monopoly of legitimate law- making power Historically no US-style judicial review by courts 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) ‘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’ 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) 1. Statute law Parliament Act 1911, European Communities Act 1972, Scotland Act 1998 Parliament Act 1911, European Communities Act 1972, Scotland Act Common law (judge-made law) Judicial decisions and Royal Prerogatives Judicial decisions and Royal Prerogatives Freedom of speech Freedom of speech Power to make treaties Power to make treaties Doctrine of Parliamentary Sovereignty Doctrine of Parliamentary Sovereignty 3. Works of authority Recognised guidance on constitution Recognised guidance on constitution A.V. Dicey, An Introduction to the Study of the Law of the Constitution (1885) A.V. Dicey, An Introduction to the Study of the Law of the Constitution (1885) Hansard, Erskine May Hansard, Erskine May

7 Sources of the Constitution (2) 4. Conventions Unwritten but accepted rules of behaviour Unwritten but accepted rules of behaviour Monarch assents to legislation Monarch assents to legislation Monarch appoints dominant party’s leader as PM Monarch appoints dominant party’s leader as PM All ministers drawn from Commons or Lords All ministers drawn from Commons or Lords Collective cabinet responsibility Collective cabinet responsibility Salisbury convention – ended with Lords reform Salisbury convention – ended with Lords reform Conventions common to all political systems, e.g. no mention of electoral college in US Constitution Conventions common to all political systems, e.g. no mention of electoral college in US Constitution How are conventions enforced? How are conventions enforced?

8 Sources of the Constitution (3) 5. EU law Major modification of parliamentary sovereignty Major modification of parliamentary sovereignty EU law can over-ride UK law in order to make single market work EU law can over-ride UK law in order to make single market work Factortame court case (1990) Factortame court case (1990) ECJ ruled that national courts could dis-apply UK laws that violated European law 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? ’Nuclear option’: UK can leave EU, thus reasserting primacy of UK law  parliamentary sovereignty intact?

9 The Unitary State The Unitary State Power enjoyed by sub-national govt can be revoked by Westminster Power enjoyed by sub-national govt can be revoked by Westminster Devolution has politically (but not legally) changed situation Devolution has politically (but not legally) changed situation The Crown and Parliament The Crown and Parliament Executive exercises powers once held by Monarch Executive exercises powers once held by Monarch Prerogative powers Prerogative powers Appointing ministers Appointing ministers Dissolving parliament Dissolving parliament Appointing civil servants Appointing civil servants Declaring war Declaring war Appointing officers in the armed forces Appointing officers in the armed forces Making treaties Making treaties Constitutional Doctrine (1)

10 Constitutional Doctrine (2) Doctrine of Responsible Government Doctrine of Responsible Government Govt responsible to parliament – resign if it loses vote of confidence Govt responsible to parliament – resign if it loses vote of confidence Individual ministers responsible to parliament Individual ministers responsible to parliament Govt responsible to electorate – seeks mandate in a general election Govt responsible to electorate – seeks mandate in a general election Collective Responsibility Collective Responsibility Ministers must defend Govt decisions or resign Ministers must defend Govt decisions or resign Related to: if Govt defeated in parliament in no- confidence vote, it must collectively 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 Collective responsibility occasionally waived, e.g. EEC referendum in 1975

11 Individual Ministerial Responsibility Individual Ministerial Responsibility Ministers responsible for actions of their Depts Ministers responsible for actions of their Depts Expected to resign if serious problems Expected to resign if serious problems Expected to resign if they lie to parliament Expected to resign if they lie to parliament Weakening of the Doctrine Weakening of the Doctrine Rapid turnover of ministers Rapid turnover of ministers Ministries too big for one person to be held responsible Ministries too big for one person to be held responsible Blurred lines of accountability – esp. autonomous agencies Blurred lines of accountability – esp. autonomous agencies Distinction between policy responsibilities (minister) and operational responsibilities (agency) Distinction between policy responsibilities (minister) and operational responsibilities (agency) Constitutional Doctrine (3)

12 Mandate Theory of Government Mandate Theory of Government Govt claims right to implement policies supported in manifesto by voters in general election Govt claims right to implement policies supported in manifesto by voters in general election Assumption: voters choose Govts in general elections (2-party system) Assumption: voters choose Govts in general elections (2-party system) To what extent can Lords or courts legitimately frustrate decisions of elected Govt? To what extent can Lords or courts legitimately frustrate decisions of elected Govt? Conclusion Conclusion UK constitution/political system – ideal-type ‘Westminster model’ UK constitution/political system – ideal-type ‘Westminster model’ Parliamentary sovereignty Parliamentary sovereignty No judicial review No judicial review Flexible constitution Flexible constitution Unitary state Unitary state But numerous changes to constitution and political system since 1997 – explored throughout this course But numerous changes to constitution and political system since 1997 – explored throughout this course Constitutional Doctrine (4)


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