The British Constitutional System

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The British Constitutional System
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Introduction

• Early history
• Qualifying the power of the monarchy
• Path to democracy
• Characteristics of the present system

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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.
  Hadrians 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

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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.

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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.

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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.

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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.

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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.

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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.

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• 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.

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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

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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 kings 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.

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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.

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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.

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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 Peoples 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.

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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.

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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.

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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 Diceys 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.

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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.

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

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• 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.

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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.