Constitution of the United Kingdom
Uncodified constitution of the UK From Wikipedia, the free encyclopedia
Uncodified constitution of the UK From Wikipedia, the free encyclopedia
The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.[2]
The Supreme Court of the United Kingdom and its predecessor, the Appellate Committee of the House of Lords, have recognised and affirmed constitutional principles such as parliamentary sovereignty, the rule of law, democracy, and upholding international law.[3] It also recognises that some Acts of Parliament have special constitutional status.[4] These include Magna Carta, which in 1215 required the King to call a "common counsel" (now called Parliament) to represent the people, to hold courts in a fixed place, to guarantee fair trials, to guarantee free movement of people, to free the church from the state, and to guarantee rights of "common" people to use the land.[5] After the Glorious Revolution, the Bill of Rights 1689 and the Claim of Right Act 1689 cemented Parliament's position as the supreme law-making body, and said that the "election of members of Parliament ought to be free". The Treaty of Union in 1706 and the Acts of Union 1707 Kingdoms of England, Wales and Scotland, the Acts of Union 1800 joined Ireland, but the Irish Free State separated after the Anglo-Irish Treaty in 1922, leaving Northern Ireland within the UK. After struggles for universal suffrage, the UK guaranteed every adult citizen over 21 years the equal right to vote in the Representation of the People (Equal Franchise) Act 1928. After World War II, the UK became a founding member of the Council of Europe to uphold human rights, and the United Nations to guarantee international peace and security. The UK was a member of the European Union, joining its predecessor in 1973, but left in 2020.[6] The UK is also a founding member of the International Labour Organization and the World Trade Organization to participate in regulating the global economy.[7]
The leading institutions in the United Kingdom's constitution are Parliament, the judiciary, the executive, and regional and local governments, including the devolved legislatures and executives of Scotland, Wales, and Northern Ireland. Parliament is the supreme law-making body, and represents the people of the United Kingdom. The House of Commons is elected by a democratic vote in the country's 650 constituencies. The House of Lords is mostly appointed by cross-political party groups from the House of Commons, and can delay but not block legislation from the Commons.[1] To make a new Act of Parliament, the highest form of law, both Houses must read, amend, or approve proposed legislation three times and the monarch must give consent. The judiciary interprets the law found in Acts of Parliament and develops the law established by previous cases. The highest court is the twelve-person Supreme Court, as it decides appeals from the Courts of Appeal in England, Wales, and Northern Ireland, or the Court of Session in Scotland. UK courts cannot decide that Acts of Parliament are unconstitutional or invalidate them, but can declare that they are incompatible with the European Convention on Human Rights.[8] They can determine whether the acts of the executive are lawful. The executive is led by the prime minister, who must maintain the confidence of a majority of the members of Parliament. The prime minister appoints the cabinet of other ministers, who lead the executive departments, staffed by civil servants, such as the Department of Health and Social Care which runs the National Health Service, or the Department for Education which funds schools and universities.
The monarch in their public capacity, known as the Crown, embodies the state. Laws can only be made by or with the authority of the Crown in Parliament, all judges sit in place of the Crown and all ministers act in the name of the Crown. The monarch is for the most part a ceremonial figurehead and has not refused assent to any new law since the Scottish Militia Bill in 1708. The monarch is bound by constitutional convention.
Most constitutional questions arise in judicial review applications, to decide whether the decisions or acts of public bodies are lawful. Every public body can only act in accordance with the law, laid down in Acts of Parliament and the decisions of the courts. Under the Human Rights Act 1998, courts may review government action to decide whether the government has followed the statutory obligation on all public authorities to comply with the European Convention on Human Rights. Convention rights include everyone's rights to life, liberty against arbitrary arrest or detention, torture, and forced labour or slavery, to a fair trial, to privacy against unlawful surveillance, to freedom of expression, conscience and religion, to respect for private life, to freedom of association including joining trade unions, and to freedom of assembly and protest.[9]
Although the British constitution is not codified, the Supreme Court recognises constitutional principles,[10] and constitutional statutes,[11] which shape the use of political power. There are at least four main constitutional principles recognised by the courts. First, parliamentary sovereignty means that Acts of Parliament are the supreme source of law. Through the English Reformation, the Civil War, the Glorious Revolution of 1688 and the Acts of Union 1707, Parliament became the dominant branch of the state, above the judiciary, executive, monarchy, and church. Parliament can make or unmake any law, a fact that is usually justified by Parliament being democratically elected, and upholding the rule of law, including human rights and international law.[12]
Second, the rule of law has run through the constitution as a fundamental principle from the earliest times as "The king must [be] ... under the law, because the law makes the king" (Henry de Bracton in the 13th century). This principle was recognised in Magna Carta and the Petition of Right 1628. This means the government may only conduct itself according to legal authority, including respect for human rights.[13] Third, at least since 1928, elections in which all capable adults participate have become a fundamental constitutional principle. Originally only wealthy, property-owning men held rights to vote for the House of Commons, while the monarch, occasionally together with a hereditary House of Lords, dominated politics. From 1832 onwards, adult citizens slowly obtained the right to universal suffrage.[14]
Fourth, the British constitution is bound to international law, as Parliament has chosen to increase its practical power in cooperation with other countries in international organisations, such as the International Labour Organization,[15] the United Nations, the European Convention on Human Rights, the World Trade Organization, and the International Criminal Court. However, the UK left membership of the European Union in 2020 after a referendum in 2016.[16]
Parliamentary sovereignty is often seen as a central element in the British constitution, although its extent is contested.[17] It means that an Act of Parliament is the highest form of law, but also that "Parliament cannot bind itself".[18] Historically, Parliament became sovereign through a series of power struggles between the monarch, the church, the courts, and the people. Magna Carta in 1215, which came from the conflict leading to the First Barons' War, granted the right of Parliament to exist for "common counsel" before any tax,[19] against the "divine right of kings" to rule.
Common land was guaranteed to people to farm, graze, hunt or fish, though aristocrats continued to dominate politics. In the Act of Supremacy 1534, King Henry VIII asserted his divine right over the Catholic Church in Rome, declaring himself the supreme leader of the Church of England. Then in the Earl of Oxford's case in 1615,[20] the Lord Chancellor (both the King's representative and head of the judiciary) asserted the supremacy of the Court of Chancery over the common law courts, contradicting Sir Edward Coke's assertion that judges could declare statutes void if they went "against common right and reason".[21]
After the Glorious Revolution of 1688, the Bill of Rights 1689 cemented Parliament's power over the monarch, and therefore over the church and courts. Parliament became "sovereign", and supreme. 18 years later however, the English Parliament abolished itself in order to create the new Parliament following on the Treaty of Union between England and Scotland, while the Scottish Parliament did likewise. Power struggles within Parliament continued between the aristocracy and common people. Outside Parliament, people from the Chartists to the trade unions fought for the vote in the House of Commons. The Parliament Act 1911 ensured the Commons would prevail in any conflict over the unelected House of Lords. The Parliament Act 1949 ensured the Lords could only delay legislation by one year,[22] and not delay any budgetary measure over a month.[23]
In a leading case, R (Jackson) v Attorney General, a group of pro-hunting protestors challenged the Hunting Act 2004's ban on fox hunting, arguing it was not a valid Act because it was passed avoiding the House of Lords, using the Parliament Acts. They argued that the 1949 Act itself was passed using the 1911 Act's power to override the Lords in two years. The claimants argued that this meant the 1949 Act should not be considered a valid law, because the 1911 Act was limited in scope and could not be used to amend its own limitation of the Lords' power. The House of Lords, sitting as the UK's highest court, rejected this argument, holding both the Parliament Act 1949 and the Hunting Act 2004 to be valid. However, in obiter dicta Lord Hope argued that Parliamentary sovereignty "is no longer, if it ever was, absolute", and that the "rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based", and cannot be used to defend unconstitutional Acts (as determined by the courts).[24] There is not yet a consensus on the meaning of "Parliamentary sovereignty", except that its legitimacy depends on the principle of "the democratic process".[25]
In recent history, Parliament's sovereignty has evolved in four main ways.[26] First, since 1945 international cooperation meant Parliament augmented its power by working with, not dominating, other sovereign nations. While Parliament had nearly uncontested military power before, and so was thought by writers of the Imperial period to be able to "make or unmake any law whatever",[27] the UK chose to join the League of Nations in 1919, and after its failure, the United Nations in 1945, to participate in building a system of international law.
The Treaty of Versailles in 1919 recalled that "peace can only be established if it is based upon social justice",[28] and the UN Charter, "based on the principle of the sovereign equality of all its Members", said that "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind", the UN would "reaffirm faith in fundamental human rights", and members should "live together in peace with one another as good neighbours". The Bretton Woods Agreements Act 1945, United Nations Act 1946 and International Organisations Act 1968 wrote the UK's funding and membership of the United Nations, the International Monetary Fund, the World Bank, and other bodies, into law.[29] For example, the UK bound itself to implement by order UN Security Council resolutions, up to the actual use of force, in return for representation in the General Assembly and Security Council.[30]
Although the UK has not always clearly followed international law,[31] it has accepted as a formal duty that its sovereignty would not be used unlawfully. Second, in 1950 the UK helped to write and joined the European Convention on Human Rights. While that convention reflected norms and cases decided under British statutes and the common law on civil liberties,[32] the UK accepted that people could appeal to the European Court of Human Rights in Strasbourg, if domestic remedies were not enough. In the Human Rights Act 1998, Parliament decided that the British judiciary should be required to apply human rights norms directly in determining British cases, to ensure a more speedy, human rights-based resolution to case law, and effectively influence human rights reasoning more.
Third, the UK became a member of the European Union after the European Communities Act 1972 and through its ratification of the Maastricht Treaty in 1992. The idea of a Union had long been envisaged by European leaders, including Winston Churchill, who in 1946 had called for a "United States of Europe".[34][35] EU law has long been held to prevail in any conflict between Acts of Parliament for the limited fields in which it operates,[36] but member states and citizens gain control over the scope of EU law, and so extend their sovereignty in international affairs, through joint representation in the European Parliament, Council of the European Union, and the Commission. This principle was tested in R (Factortame Ltd) v Secretary of State for Transport, where a fishing business claimed that it should not be required to have 75% of British shareholders, as the Merchant Shipping Act 1988 said.[37]
Under EU law, the principle of freedom of establishment states that nationals of any member state can freely incorporate and run a business across the EU without unjustified interference. The House of Lords held that, because the EU law conflicted with the sections of the 1988 Act, those sections would not be enforced, and disapplied, because Parliament had not clearly expressed an intention to renounce the 1972 Act. According to Lord Bridge "whatever limitation of its sovereignty Parliament accepted when it enacted the [1972 Act] was entirely voluntary".[37] It was, therefore, the duty of the courts to apply EU law.
On the other hand, in R (HS2 Action Alliance Ltd) v Secretary of State for Transport the Supreme Court held that certain fundamental principles of British constitutional law would not be interpreted by the courts as having been given up by membership of the EU, or probably any international organisation.[38] Here a group protesting against the High Speed 2 rail line from London to Manchester and Leeds claimed that the government had not properly followed an Environmental Impact Assessment Directive by whipping a vote in Parliament to approve the plan. They argued that the Directive required open and free consultation, which was not fulfilled if a party whip compelled party members to vote. The Supreme Court unanimously held the Directive did not require that no party whip occurred, but if a conflict had existed a Directive would not be able to compromise the fundamental constitutional principle from the Bill of Rights that Parliament is free to organise its affairs.
Fourth, devolution in the United Kingdom has meant Parliament gave the power to legislate on specific topics to nations and regions: the Scotland Act 1998 created the Scottish Parliament, the Government of Wales Act 1998 created the Welsh Assembly, the Northern Ireland Act 1998 created a Northern Ireland Executive following the historic Good Friday Agreement, to bring peace. In addition, the Local Government Act 1972 and the Greater London Authority Act 1999 give more limited powers to local and London governments. Practically, but also constitutionally, it has become increasingly accepted that decisions should not be taken for the UK which would override, and run counter to, the will of regional governments. However, in R (Miller) v Secretary of State for Exiting the European Union, a group of people who sought to remain in the European Union contested the government on whether the Prime Minister could trigger Article 50 to notify the European Commission of the UK's intention to leave, without an Act of Parliament.[39] This followed the Brexit poll of 2016 where 51.9% of those voting voted to leave.[40]
The claimants argued that, because Brexit would obliterate rights that Parliament had conferred through Acts of Parliament (such as the right of free movement of British citizens in the EU, the right to fair competition through merger control, and the right to vote for EU institutions) only Parliament could consent to notifying the intention to negotiate to leave under Article 50. They also argued that the Sewel Convention for devolved assemblies, where the assembly passes a motion that the Westminster Parliament can legislate on a devolved matter before it does so, meant the UK could not negotiate to leave without the Scottish, Welsh or Northern Ireland legislatures' consent. The Supreme Court held that the government could not begin the process of leaving purely through royal prerogative; Parliament must pass an Act enabling it to do so. However, the Sewel convention could not be enforced by courts, rather than observed.[41] This led Prime Minister Theresa May to procure the European Union (Notification of Withdrawal) Act 2017, giving her power to notify the intention to leave the EU.[42]
The rule of law has been regarded as a fundamental principle of modern legal systems, including the UK.[43] It has been called "as important in a free society as the democratic franchise",[44] and even "the ultimate controlling factor on which our constitution is based".[45] Like parliamentary sovereignty, its meaning and extent is disputed. The most widely accepted meanings speak of several factors: Lord Bingham of Cornhill, formerly the highest judge in England and Wales, suggested the rule of law ought to mean that law is clear and predictable, not subject to broad or unreasonable discretion, applies equally to all people, with speedy and fair procedures for enforcement, protects fundamental human rights, and works according to international law.[46]
Other definitions seek to exclude human rights and international law as relevant but largely stem from visions of pre-democratic scholars such as Albert Venn Dicey.[47] The rule of law was explicitly recognised as a "constitutional principle" in section 1 of the Constitutional Reform Act 2005, which limited the judicial role of the Lord Chancellor and recast the judicial appointments system to entrench independence, diversity and merit.[48] As the statute gives no further definition, the practical meaning of the "rule of law" develops through case law.
At its core, the rule of law, in English and British law, has traditionally been the principle of "legality". This means that the state, government, and any person acting under government authority (including a corporation),[51] may only act according to law. In 1765, in Entick v Carrington a writer, John Entick, claimed that the King's Chief Messenger, Nathan Carrington, had no legal authority to break into and ransack his home, and remove his papers. Carrington claimed he had authority from the Secretary of State, Lord Halifax, who issued a search "warrant", but there was no statute that gave Lord Halifax the authority to issue search warrants. Lord Camden CJ held that the "great end, for which men entered into society, was to secure their property", and that without any authority "every invasion of private property, be it ever so minute, is a trespass."[49] Carrington acted unlawfully and had to pay damages.
Today this principle of legality is found throughout the European Convention on Human Rights, which enables infringements of rights as a starting point only if "in accordance with the law".[52] In 1979, in Malone v Metropolitan Police Commissioner a man charged with handling stolen goods claimed the police unlawfully tapped his phone, to get evidence. The only related statute, the Post Office Act 1969 Schedule 5, stated there should be no interference in telecommunications unless the Secretary of State issued a warrant, but said nothing explicit about phone tapping. Megarry VC held there was no wrong at common law, and refused to interpret the statute in light of the right to privacy under the European Convention on Human Rights, article 8.[53]
On appeal, the European Court of Human Rights concluded the convention was breached because the statute did not "indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities."[54] The judgment, however, was overshadowed by the government swiftly passing a new Act to authorise phone tapping with a warrant.[55] By itself the principle of legality is not enough to alone preserve human rights in the face of ever more intrusive statutory powers of surveillance by corporations or government.
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The rule of law requires the law be truly enforced, though enforcement bodies may have room for discretion. In R (Corner House Research) v Director of the Serious Fraud Office, a group campaigning against the arms trade, Corner House Research, claimed the Serious Fraud Office acted unlawfully by dropping an investigation into the UK–Saudi Al-Yamamah arms deal. It was alleged that BAE Systems plc paid bribes to Saudi government figures.[56] The House of Lords held the SFO was entitled to take into account the public interest in not pursuing an investigation, including the security threats that might transpire. Baroness Hale remarked that the SFO had to consider "the principle that no-one, including powerful British companies who do business for powerful foreign countries, is above the law", but the decision reached was not unreasonable.[57] When enforcement or court proceedings do take place, they should proceed swiftly: anyone who is detained must be charged and put on trial or released.[58]
People must also be able to access justice in practice. In R (UNISON) v Lord Chancellor the Supreme Court held the government's imposition of £1200 in fees to bring an employment tribunal claim undermined the rule of law, and was void. The Lord Chancellor had statutory authority to create fees for court services, but in the case of employment tribunals, his Order led to a 70% drop in claims against employers for breach of labour rights, such as unfair dismissal, unlawful wage deductions or discrimination. Lord Reed said the "constitutional right of access to the courts is inherent in the rule of law". Without access to courts, "laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade."[59] In principle every person is subject to the law, including government ministers, or corporate executives, who may be held in contempt of court for violating an order.[60]
In other systems the idea of a separation of powers is seen as an essential part of maintaining the rule of law. In theory, originally advocated by Baron de Montesquieu, there should be a strict separation of the executive, legislature and judiciary.[61] While other systems, notably the United States, attempted to put this into practice (e.g. requiring the executive does not come from the legislature), it is clear that modern political parties may undermine such a separation by capturing all three branches of government, and democracy has been maintained since the 20th century despite the fact that "there is no formal separation of powers in the United Kingdom".[62]
The Constitutional Reform Act 2005 ended the practice of the Lord Chancellor sitting as the head of the judiciary, while also being a Member of Parliament, and sitting in the cabinet. Since the Act of Settlement 1700, there has been only one instance of a judge being removed, and a suspension cannot happen without the Lord Chief Justice and the Lord Chancellor following a judge being subject to criminal proceedings.[63] There is now a duty on all ministers to "uphold the continued independence of the judiciary", including against assault by powerful corporations or the media.[64]
The principle of a "democratic society", with a functioning representative and deliberative democracy, that upholds human rights, legitimises the fact of Parliamentary sovereignty,[65] and it is widely considered that "democracy lies at the heart of the concept of the rule of law".[66] The opposite of arbitrary power exercised by one person is "administration is in the hands of the many and not of the few".[67] According to the preamble to the European Convention on Human Rights, as drafted by British lawyers following World War II, fundamental human rights and freedoms are themselves "best maintained ... by "an effective political democracy".[68] Similarly, this "characteristic principle of democracy" is enshrined by the First Protocol, article 3, which requires the "right to free elections" to "ensure the free expression of the opinion of the people in the choice of the legislature".[69] While there are many conceptions of democracy, such as "direct", "representative" or "deliberative", the dominant view in modern political theory is that democracy requires an active citizenry, not only in electing representatives, but in taking part in political life.[70]
Its essence lies in not simply majority decision-making, nor referendums that can easily be used as a tool of manipulation,[71] "but in the making of politically responsible decisions" and in "large-scale social changes maximising the freedom" of humankind.[72] The legitimacy of law in a democratic society depends upon a constant process of deliberative discussion and public debate, rather than the imposition of decisions.[73] It is also generally agreed that basic standards in political, social and economic rights are necessary to ensure everyone can play a meaningful role in political life.[74] For this reason, the rights to free voting in fair elections and "general welfare in a democratic society" have developed hand-in-hand with all human rights, and form a fundamental cornerstone of international law.[75]
In the UK's "modern democratic constitution",[76] the principle of democracy is manifested through statutes and case law which guarantee the right to vote in fair elections, and through its use as a principle of interpretation by courts. In 1703, in the landmark case of Ashby v White, Lord Holt CJ stated that the right of everyone "to give [their] vote at the election of a person to represent [them] in Parliament, there to concur to the making of laws, which are to bind [their] liberty and property, is a most transcendent thing, and of a high nature".[77] This has meant that the courts actively ensure that votes cast are counted and that democratic elections are conducted according to law. In Morgan v Simpson the Court of Appeal held that if a vote "was conducted so badly that it was not substantially in accordance with the law, " then it would be declared void, and so would even minor irregularities that would affect the result.[78]
A considerable body of regulation, for instance in the Representation of the People Act 1983 or the Political Parties, Elections and Referendums Act 2000, restrict spending or any foreign interference because, according to Baroness Hale "each person has equal value" and "we do not want our government or its policies to be decided by the highest spenders".[79] More broadly, the concept of a "democratic society" and what is "necessary" for its functioning underpins the entire scheme of interpretation for the European Convention on Human Rights as applied in British law, particularly after the Human Rights Act 1998, because each right can usually only be restricted if "in accordance with law" and as "necessary in a democratic society". The place of the social welfare state that is necessary to support democratic life is also manifested through the courts' interpretation. For instance, in Gorringe v Calderdale MBC, Lord Steyn, giving the leading judgement, said it was "necessary" to view the law of negligence in the context of "the contours of our social welfare state".[80] More generally, the common law has been increasingly developed to be harmonious with statutory rights,[81] and also in harmony with rights under international law.
Like other democratic countries,[82] the principles of international law are a basic component of the British constitution, both as a primary tool of interpretation of domestic law and through the UK's consistent support and membership of major international organisations. As far back as Magna Carta, English law recognised the right to free movement of people for international trade.[83] In 1608, Sir Edward Coke wrote confidently that international commercial law, or the lex mercatoria, is part of the laws of the realm.[84] The constitutional crises of the 17th century centred upon Parliament halting the King's attempt to tax international trade without its consent.[85] Similarly in the 18th century, Lord Holt CJ viewed international law as a general tool for interpretation of the common law,[86] while Lord Mansfield in particular did more than any other to affirm that the international lex mercatoria "is not the law of a particular country but the law of all nations",[87] and "the law of merchants and the law of the land is the same".[88]
In 1774, in Somerset v Stewart, one of the most important cases in legal history, Lord Mansfield held that slavery was lawful "in no country" and therefore in common law.[89]
In modern case law it has been consistently accepted that it "is a principle of legal policy that [British] law should conform to public international law."[90] The House of Lords stressed that "there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation."[91] For example, in Hounga v Allen the Supreme Court held that a young lady who had been illegally trafficked to the UK had a right to bring a race discrimination claim against her employers, even though she had herself been in violation of the Immigration Act 1971.[92]
In doing so, the court unanimously drew upon international treaties signed by the UK, known as the Palermo protocols, as well as the European Convention on Human Rights, in interpreting the scope of the common law doctrine of illegality, and held it was no bar for the claimant to assert her legal rights. It has been further debated whether the UK should adopt a theory of that sees international law as part of UK without any further act (a "monist" theory), or whether it should still be required for international law principles to be translated into domestic law (a "dualist" theory).[93] The current position in European Union law is that while international law binds the EU, it cannot undermine fundamental principles of constitutional law or human rights.[94]
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Since the World Wars brought an end to the British Empire and physically destroyed large parts of the country, the UK has consistently supported organisations formed under international law. From the Treaty of Versailles in 1919, the UK was a founding member of the International Labour Organization, which sets universal standards for people's rights at work. After the failure of the League of Nations and following World War II, the UK became a founding member of the United Nations, recognised by Parliament through the United Nations Act 1946, enabling any resolution of the Security Council except the use of force to be implemented by an Order in Council. Due the Universal Declaration of Human Rights in 1948, the continuation of the British Empire[clarification needed] lost substantial legitimacy under international law, and combined with independence movements this led to its rapid dissolution.
Two fundamental treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966, saw the UK ratify most rights from the Universal Declaration. Codifying the Ponsonby Rule from 1924, the Constitutional Reform and Governance Act 2010 section 20 stipulates that a treaty is ratified once it is laid before Parliament for 21 days and no adverse resolution is passed against it.[96] Regionally, the UK participated in drafting the 1950 European Convention on Human Rights which sought to guarantee basic standards of democracy and human rights to preserve peace in post-war Europe. At the same time, following long-held visions for European integration with the UK "at the centre",[97] democratic European countries sought to integrate their economies both to make war vain, and to advance social progress.
In 1972, the UK joined the European Communities (reorganized and renamed the European Union in 1992) and committed to implement EU law in which it participated, in the European Communities Act 1972. In 1995, the UK also became a founding member of the World Trade Organization.[98] To ensure that the European Convention was directly applied by the courts, the Human Rights Act 1998 was passed. Parliament also passed the International Criminal Court Act 2001 to enable prosecution of war criminals, and subjected itself to the jurisdiction of the International Criminal Court. In 2016 the UK voted in a referendum on whether to leave the European Union, resulting—with a 72.2% turnout—in a margin of 51.9% favouring "leave" and 48.1% favouring "remain".[99] Some allegations were made of misconduct taking place in the campaigns in support of both referendum options, whilst authorities found nothing considered serious enough to affect results and little to chastise.[100]
Due to the uncodified nature of the Constitution, there is no entrenched source of constitutional law. However, over time three main bodies of sources have emerged. The main sources of constitutional law are Acts of Parliament, court cases, and conventions in the way that government, Parliament and the monarch act.[101]
Laws that touch on topics such as the structure of government, rights of citizens and the powers of devolved assemblies become constitutionally significant simply by their subject matter and the sovereignty of parliament meaning that the specifics of the law becoming legally binding.[102] This allows for the constitution to be amended whenever a law is made on a constitutionally significant topic.
Professor Robert Blackburn lists the following as recent constitutionally significant acts:
and claims that recent developments have seen some acts ad hoc codification[103]
Via court cases, judges create common law when they decide legal proceedings. This means that in order to understand the common law, individual pieces of case law must be examined, with earlier and higher court case law having precedent over newer and lower court case law.[104]
Conventions are harder to pin down as being constitutionally significant due to be unwritten agreements without hard legal force, but they remain an integral element of the constitution.[105] Elements such as the leader of the party with a majority becoming Prime Minister, the House of Lords not vetoing secondary legislation and judges remaining impartial on government policy are all conventions.[106]
While principles may be the basis of the UK constitution, the institutions of the state perform its functions in practice. First, Parliament is the sovereign entity. Its two chambers legislate. In the House of Commons each Member of Parliament is elected by a simple plurality in a democratic vote, although outcomes do not always accurately match people's preferences overall. Elections must be held within five years after the previous election of a Parliament, though historically they have tended to occur each four years.[107] Election spending is tightly controlled, foreign interference is prohibited, and donations and lobbying are limited in whatever form. The House of Lords reviews and votes upon legislative proposals by the Commons. It can delay legislation by one year, and cannot delay at all if the proposed Act concerns money.[108]
Most Lords are appointed by the Prime Minister, through the King,[109] on the advice of a Commission which, by convention, offers some balance between political parties. Ninety-two hereditary peers remain.[110] To become law, each Act of Parliament must be read by both houses three times, and given royal assent by the monarch. The Sovereign does not veto legislation, by convention, since 1708. Second, the judiciary interprets the law. It can not strike down an Act of Parliament, but the judiciary ensures that any law which may violate fundamental rights has to be clearly expressed, to force politicians to openly confront what they are doing and "accept the political cost".[111]
Under the Constitutional Reform Act 2005, the judiciary is appointed by the Judicial Appointments Commission with cross-party and judicial recommendations, to protect judicial independence. Third, the executive branch of government is led by the prime minister who must be able to command a majority in the House of Commons. The Cabinet of Ministers is appointed by the Prime Minister to lead the main departments of state, such as the Treasury, the Foreign Office, the Department of Health and the Department for Education. Officially the "head of state" is the monarch, but all prerogative power is exercised by the Prime Minister, subject to judicial review. Fourth, as the UK matured as a modern democracy, an extensive system of civil servants, and public service institutions developed to deliver UK residents economic, social and legal rights. All public bodies, and private bodies that perform public functions, are bound by the rule of law.
In the British constitution, Parliament sits at the apex of power. It emerged through a series of revolutions as the dominant body, over the church, courts, and the monarch,[112] and within Parliament the House of Commons emerged as the dominant chamber, over the House of Lords that traditionally represented the aristocracy.[113] The central justification for Parliamentary sovereignty is usually thought to be its democratic nature, although it was only upon the Representation of the People (Equal Franchise) Act 1928 that Parliament could be said to have finally become "democratic" in any modern sense (as property qualifications to vote were abolished for everyone over 21), and not until after the Second World War that decolonisation, university constituencies and lowering of the voting age took place. Parliament's main functions are to legislate, to allocate money for public spending,[114] and to scrutinise the government.[115]
In practice many MPs are involved in Parliamentary committees which investigate spending, policies, laws and their impact, and often report to recommend reform. For instance, the Modernisation Committee of the House of Commons in 2002 recommended publishing draft bills before they became law, and was later found to have been highly successful.[116] There are 650 Members of Parliament (MPs) in the House of Commons, currently elected for terms of up to five years,[117] and 790 peers in the House of Lords. For a proposed Bill to become an Act, and law, it must be read three times in each chamber, and given royal assent by the monarch.
Today, the House of Commons is the primary organ of representative government. Section 1 of the Representation of the People Act 1983 gives the right to all registered citizens of the United Kingdom, the Republic of Ireland and the Commonwealth aged 18 and over to elect Members of Parliament to the House of Commons. Sections 3 and 4 exclude people who are convicted of an offence and in a penal institution, or detained under mental health laws.[118] These restrictions fall below European standards, which require that people who are convicted of very minor crimes (such as petty theft or drug offences) have the right to vote.[119] Since 2013, everyone has to register individually to vote, instead of households being able to register collectively, but an annual household canvass is conducted to increase the number of registered people.[120]
As far back as 1703, Ashby v White recognised the right to "vote at the election of a person to represent him or [her] in Parliament, there to concur to the making of laws, which are to bind his liberty and property" as "a most transcendent thing, and of an high nature".[121] This originally meant that any interference in that right would lead to damages. If the denial of voting would have changed the result, or if a vote was "conducted so badly that it was not substantially in accordance with the law" the vote would have to be run again.[122] So, in Morgan v Simpson the Court of Appeal declared that an election for a Greater London Council seat was not valid after it was found that 44 unstamped ballot papers were not counted. These common law principles predate statutory regulation, and therefore appear to apply to any vote, including elections and referendums.[123]
Election spending is tightly controlled today by statute. A maximum of £20 million can be spent by political parties in national campaigns, plus £10,000 in each constituency.[124] Political advertisements on television are prohibited except for those in certain free time slots,[125] although the internet remains largely unregulated. Any spending over £500 by third parties must be disclosed. While these rules are strict, they were held in Animal Defenders International v UK to be compatible with the Convention because "each person has equal value" and "we do not want our government or its policies to be decided by the highest spenders."[126] Foreign interference in voting is completely prohibited, including any "broadcasting" (also over the internet) "with intent to influence persons to give or refrain from giving their votes".[127]
Donations by foreign parties can be forfeited in their entirety to the Electoral Commission.[128] Domestic donations are limited to registered parties, and must be reported, when they are over £7,500 nationally or £1,500 locally, to the Electoral Commission.[129] The system for electing the Commons is based on constituencies, whose boundaries are periodically reviewed to even out populations.[130] There has been considerable debate about the first-past-the-post system of voting the UK uses, as it tends to exclude minority parties. By contrast, in Australia voters may select preferences for candidates, although this system was rejected in a 2011 United Kingdom Alternative Vote referendum staged by the Cameron-Clegg coalition. In the European Parliament, voters choose a party from multi-member regional constituencies: this tends to give smaller parties much greater representation. In the Scottish Parliament, the Welsh Parliament and London Assembly, voters have the choice of both constituencies and a party list, which tends to reflect overall preferences best. To be elected as an MP, most people generally become members of political parties, and must be over 18 on the day of nomination to run for a seat,[131] be a qualifying Commonwealth or Irish citizen,[132] not be bankrupt,[133] found guilty of corrupt practices,[134] or be a Lord, judge or employee of the civil service.[135] To limit the government's practical control over Parliament, the Ministerial and other Salaries Act 1975 restricts higher payment of salaries to a set number of MPs.[136]
Along with a hereditary monarch, the House of Lords remains an historical curiosity in the British constitution. Traditionally it represented the landed aristocracy, and political allies of the monarch or the government, and has only gradually and incompletely been reformed. Today, the House of Lords Act 1999 has abolished all but 92 hereditary peers, leaving most peers to be "life peers" appointed by the government under the Life Peerages Act 1958, law lords appointed under the Appellate Jurisdiction Act 1876, and Lords Spiritual who are senior clergy of the Church of England.[137] Since 2005, senior judges can only sit and vote in the House of Lords after retirement.[138]
The government carries out appointment of most peers, but since 2000 has taken advice from a seven-person House of Lords Appointments Commission with representatives from the Labour, Conservatives and Liberal-Democrat parties.[139] A peerage can always be disclaimed,[140] and ex-peers may then run for Parliament.[141] Since 2015, a peer may be suspended or expelled by the House.[142] In practice the Parliament Act 1949 greatly reduced the House of Lords' power, as it can only delay and cannot block legislation by one year, and cannot delay money bills at all.[143]
Several options for reform have been debated. A House of Lords Reform Bill 2012 proposed to have 360 directly elected members, 90 appointed members, 12 bishops and an uncertain number of ministerial members. The elected Lords would have been elected by proportional representation for 15-year terms, through 10 regional constituencies on a single transferable vote system. However, the government withdrew support after backlash from Conservative backbenches. It has often been argued that if the Lords were elected by geographic constituencies and a party controlled both sides "there would be little prospect of effective scrutiny or revision of government business."[144]
A second option, like in the Swedish Riksdag, could simply be to abolish the House of Lords. This was done during the English Civil War in 1649, but restored along with the monarchy in 1660.[144] A third proposed option is to elect peers by work and professional groups, so that health care workers elect peers with special health knowledge, people in education elect a fixed number of education experts, legal professionals elect legal representatives, and so on.[145] This is argued to be necessary to improve the quality of legislation.
The judiciary in the United Kingdom has the essential functions of upholding the rule of law, democracy, and human rights. The highest court of appeal, renamed from the House of Lords officially from 2005, is the Supreme Court. The Lord Chancellor's role changed dramatically on 3 April 2006, as a result of the Constitutional Reform Act 2005. Due to the Constitutional Reform Act of 2005, the make up of the Judiciary is clearly demonstrated for the first time inside the Constitution. This form of enshrined law presents a new branch of government. An independent Supreme Court has been established, separate from the House of Lords and with its own independent appointments system, staff, budget and building.[146]
Further aspects of this explores how independent the Judiciary has become. An Appointments Commission, responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice was established. The Judicial Appointments Commission ensures that merit remains the sole criterion for appointment and the appointments system is modern, open and transparent. In terms of scrutiny, A Judicial Appointment and Conduct Ombudsman, responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of judicial conduct complaints within the scope of the Constitutional Reform Act, provides checks and balances to the Supreme Court.[146]
The Judiciary hears appeals from the whole UK in civil law matters, and for criminal law in England and Wales, and Northern Ireland. It does not hear criminal appeals from Scotland. The Supreme Court does however consider "devolution issues" where these may affect Scottish criminal law.[citation needed] Since the 1966 Practice Statement, the judiciary has acknowledged that while a system of precedent, that binds lower courts, is necessary to provide "at least some degree of certainty", the courts should update their jurisprudence and "depart from a previous decision when it appears right to do so."[147]
Litigation usually begins in a County Court or the High Court for civil law issues,[148] or a magistrates' court or the Crown Court for criminal law issues. There are also employment tribunals for labour law disputes,[149] and the First-tier Tribunal for public or regulatory disputes, ranging from immigration, to social security, to tax.[150] After the High Court, Crown Court, or appeal tribunals, cases generally may appeal to the Court of Appeal in England and Wales. In Scotland, the Court of Session has an Outer (first instance) and Inner (appeal) House. Appeals then go to the Supreme Court, although at any time a court may make a "preliminary reference" to the Court of Justice of the European Union to clarify the meaning of EU law. Since the Human Rights Act 1998, courts have been expressly required to interpret law to be compatible with the European Convention on Human Rights. This follows a longer tradition of courts interpreting the law to be compatible with international law obligations.[151]
It is generally accepted that the British courts do not merely apply but also create new law through their interpretative function: this is obvious in the common law and equity, where there is no codified statutory basis for large parts of the law, such as contracts, torts or trusts. This also means an element of retroactivity,[152] since an application of developing rules may differ from at least one party's understanding of the law in any conflict.[153] Although formally the British judiciary may not declare an Act of Parliament "unconstitutional",[154] in practice the judiciary's power to interpret the law so as to be compatible with human rights can render a statute inoperative, much like in other countries.[155] The courts do so sparingly because they recognise the importance of the democratic process. Judges may also sit from time to time on public inquiries.[156]
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The independence of the judiciary is one of the cornerstones of the constitution, and means in practice that judges cannot be dismissed from office. Since the Act of Settlement 1700, no judge has been removed, as to do so the King must act on address by both Houses of Parliament.[157] It is very likely that a judge would never be dismissed, not merely because of formal rules but a "shared constitutional understanding" of the importance of the integrity of the legal system.[158] This is reflected, for example, in the sub judice rule that matters awaiting decision in court should not be prejudged in a Parliamentary debate.[159] The Lord Chancellor, once head of the judiciary but now simply a government minister, also has a statutory duty to uphold the independence of the judiciary,[160] for instance, against attacks upon their integrity by media, corporations, or the government itself.
Members of the judiciary can be appointed from among any member of the legal profession who has over 10 years of experience having rights of audience before a court: this usually includes barristers, but can also mean solicitors or academics.[161] Appointments should be made "solely on merit" but regard may be had to the need for diversity when two candidates have equal qualifications.[162] For appointments to the Supreme Court, a five-member Judicial Appointments Committee is formed including one Supreme Court judge, three members from the Judicial Appointments Commission, and one lay person.[163] For other senior judges such as those on the Court of Appeal, or for the Lord Chief Justice, Master of the Rolls, or the heads of the High Court divisions, a similar five member panel with two judges is formed.[164] Gender and ethnic diversity is lacking in the British judiciary compared to other developed countries, and potentially compromises the expertise and administration of justice.[165]
Backing up the judiciary is a considerable body of administrative law. The Contempt of Court Act 1981 enables a court to hold anyone in contempt, and commit the person to imprisonment, for violating a court order, or behaviour that could compromise a fair judicial process. In practice this is enforced by the executive. The Lord Chancellor heads the Ministry of Justice, which performs various functions including administering the Legal Aid Agency for people who cannot afford access to the courts. In R (UNISON) v Lord Chancellor the government suffered scathing criticism for creating high fees that cut the number of applicants to employment tribunals by 70 per cent.[166] The Attorney General of England and Wales, and in Scottish matters, the Advocate General for Scotland, and the Solicitor General for England and Wales represent the Crown in litigation. The Attorney General also appoints the Director of Public Prosecutions who heads the Crown Prosecution Service, which reviews cases submitted by the police for prosecution, and conducts them on behalf of the Crown.[167]
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The executive branch, while subservient to Parliament and judicial oversight, exercises day to day