Sources of the UK Constitution Miss Christian 12E F9 Lesson #2 Wednesday 14th September 2011 Sources of the UK Constitution

The British Constitution Is “unwritten” and therefore UNCODIFIED. The British Constitution is built upon the principles of the rule of law and the supremacy of parliament. This means the British Constitution cannot have a fixed set of principles but needs to reflect change. Due to the nature of the constitution it is claimed that this gives a great deal of flexibility as there are no special procedures for changing or amending the constitution as there are in other countries like the USA.

Sources of the Constitution The UK Constitution is composed from 5 main sources: Prerogative powers (Royal Prerogative) Statue Law Judicial Decisions (Common Law) Conventions Authoritative works and opinion

ROYAL PREROGATIVE The royal prerogative consists of a number of powers or privileges that in the past were performed by the monarch but are now performed by ministers on his or her behalf. This authority is derived from the Crown, not Parliament. Examples of these powers include the rights to; declare war, make treaties, give orders to the armed forces, dissolve parliament, appoint ministers and dispense honours.

STATUTE LAW A statute is a written law passed by an Act of Parliament. It is a law that is enforceable in the courts. Many statues do not embody principles affecting the constitution. Others do because they affect the way in which we are governed, and relationships within the state. e.g. the Representation of the People Acts of 1918, 1928, and 1969

The Representation of the People Act of 1918 The 1918 Representation of the People Act was the start of female suffrage in Great Britain. The bill was passed by an overwhelming majority in the House of Commons (385 for to 55 against) – an element of support that surprised the Suffragettes and other suffragist movements. The 1918 Representation of the People Act gave women of property over the age of 30 the right to vote – not all women, therefore, could vote – but it was a major start. http://www.parliament.uk/documents/upload/1918-rep-people-act.pdf

The Representation of the People Act of 1928 Full equality only came 10 years later, on 2 July 1928, with the Equal Franchise Act (Representation of the People Act of 1928) , when women became the majority of the electorate. This is considered to be a source of the constitution as it fundamentally changed the process of how we, as a people, are governed.

The Representation of the People Act of 1969 This Act lowered the voting age to 18. The Representation of the People Act 1983 consolidated all previous Representation Acts. http://www.headsup.org.uk/content/?page=s74_3 http://www.legislation.gov.uk/ukpga/1983/2/introduction

Judicial Decisions (Common Law) Judicial decisions are most often referred to as “common law” as it applies all people in the same way. Common law is any legal principle which has been applied or derived from the decisions of judges. It is law formed on the basis of precedents set in previous cases – i.e. judgements made by one court of law must be followed by other courts in the future if they face a similar case. Common Law is not the product of the legislative process, but a reflection of the accumulated wisdom of the past. Most of the original laws concerning civil rights began in this way, such as freedom of speech and freedom of movement.

CONVENTIONS Constitutional conventions are sets of rules established over time by custom and practice, which relate to the exercise of government powers. A key CONVENTION is that of Royal Assent – the monarch must give their approval (these days signature) to any Act of Parliament. No monarch has refused Royal Assent since Queen Anne in 1707. If monarch were to refuse Royal Assent today there would be a constitutional crisis. Conventions are not legally binding but are considered binding due to their use over extended periods of time. Conventions are still created today – for example Gordon Brown announced during his short time as Prime Minister, that the UK could not declare war without a parliamentary vote. This has since been considered the norm.

MAJOR WORKS OF AUTHORITY Major works of authority have become sources of guidance which are widely recognised and are therefore viewed as authoritative. They often contain the nearest to a written account that we have of the way the constitution operates. E.g. Erskine May (1844), Walter Bagehot (1867), A. V. Dicey (1885)

Walter Bagehot: The English Constitution (1867) Bagehot was one of the most important writers about the role of the monarchy. He provided an analysis of the role of monarchy which remains relevant today. For example, Bagehot describes the way in which monarchy symbolises the unity of the national community. Bagehot's views of how monarchy works proved influential, and by the reign of King George V (1910-1936), the principle of constitutional monarchy was firmly established in Britain. https://www.youtube.com/watch?v=vkgPiaonQkM

Walter Bagehot: The English Constitution (1867) In “the English Constitution” the constitution is described, not from law books and as a lawyer would describe it, but from the actual working, as Bagehot himself had witnessed it, in his contact with ministers and the heads of government departments, and with the life of the society in which the politicians moved. http://www.nndb.com/people/189/000100886/

Erskine May: Treatise on the Law, Privileges, Proceedings and Usage of Parliament (1844) Thomas Erskine May was a Clerk of the House of Commons from 1871 to 1886; his work is considered foremost in its description of parliamentary procedures and has been utilised across the world. It is now commonly known as Erskine May: Parliamentary Practice May published 9 updated editions in his own lifetime and it continues to be updated to this day. The 25th edition was released on the 28th May 2019 to reflect modern practices, the use of technology etc. http://www.parliament.uk/business/publications/parliamentary-archives/archives-highlights/archives-erskine-may-exhibition/

Erskine May: Treatise on the Law, Privileges, Proceedings and Usage of Parliament (1844) Quoting from the guide to parliamentary procedure, Erskine May, Bercow said by convention, the question “may not be brought forward again during the same session” and that it was a “strong and longstanding convention” dating back to 1604. He said the convention had been confirmed again many times, including in 1864, 1870, 1882, 1891 and 1912. “Indeed, Erskine May makes reference to no fewer than 12 such rulings up to the year 1920,” he said. “One of the reasons the rule has lasted so long is that it is a necessary rule to ensure the sensible use of the house’s time and the proper respect for the decisions it takes. - The Guardian, 18th March 2019 Bercow utilises May to block a 3rd meaningful vote https://www.theguardian.com/politics/2019/mar/18/brexit-john-bercow-rules-out-third-meaningful-vote-on-same-deal

A. V. Dicey, An Introduction to the Study of the Law of the Constitution (1885) The book written with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution.” http://www.constitution.org/cmt/avd/law_con.htm

MAJOR CONSTITUTIONAL DOCUMENTS A number of documents formed the basis of the constitution because they established important principles. Magna Carta 1215 Bill of Rights 1689 Act of Settlement 1701

Magna Carta 1215 The Magna Carta, which means 'The Great Charter', is one of the most important documents in history as it established the principle that everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial. https://www.bl.uk/magna-carta

Magna Carta 1215 “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. nor will we proceed with force against him . except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.” http://www.bl.uk/treasures/magnacarta/basics/basics.html

Bill of Rights 1689 The Bill of Rights Act 1689 set out the foundations of constitutional monarchy. Rights obtained by Parliament included: Freedom from Royal interference with the law; Freedom from taxation by Royal prerogative; Freedom to petition the King; Freedom to elect members of Parliament without interference from the Sovereign. http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction http://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/revolution/collections/billofrights/

Act of Settlement 1701 The Act of Settlement of 1701 was designed to secure the Protestant succession to the throne, and to strengthen the guarantees for ensuring parliamentary system of government. The Act also strengthened the Bill of Rights (1689), which had previously established the order of succession for Mary II’s heirs. http://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/revolution/overview/actofsettlement/ http://www.royal.gov.uk/historyofthemonarchy/kingsandqueensoftheunitedkingdom/thestuarts/maryiiwilliamiiiandtheactofsettlement/theactofsettlement.aspx http://www.legislation.gov.uk/aep/Will3/12-13/2/contents

Succession of the Crown Act 2013 Removed the right of male heirs to the throne to have precedence over girls. Princess Charlotte remains ahead of her new baby brother Prince Louis in the line of succession. The Act also now allows members of the Royal family to marry Roman Catholics and remain in line to the throne. This law however is not RETEROACTIVE and so only affects those born from 2013 onwards.