Isabella Carter
The British constitution is unique in that its core aspects are not contained in a single legal source. Instead, it is spread across various laws, rules, and practices, including constitutional statutes, judicial decisions, conventions, international treaties, and common law principles. Thomas Paine, in his influential work Common Sense, identified three components of the British Constitution that he believed required examination and improvement: monarchy, aristocracy, and democracy. Paine argued that the constitution's focus on monarchy and aristocracy promoted unjust systems that benefited a select few, while neglecting the welfare of the majority. He advocated for a shift towards democracy, emphasising individual liberties and a government system that truly represented the people's interests.
| Characteristics | Values |
|---|---|
| Uncodified | ✗ |
| Flexible | ✓ |
| Monarchical | ✓ |
| Parliamentary | ✓ |
| Based on constitutional doctrines and principles | ✓ |
| Sources | Acts of Parliament, conventions, international treaties, royal prerogative, law and custom of Parliament, works of authoritative writers |
| Constitutional doctrines and principles | Parliamentary sovereignty, the rule of law, separation of powers, common law |
| Human rights | ✓ |
| No concept of 'higher law' | ✗ |
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What You'll Learn
Monarchy, aristocracy, and democracy
The United Kingdom is a democratic constitutional monarchy, with a long history of having a monarch as its head of state. A monarchy is a system where the head of state inherits their office from their parents and holds it until death or retirement, when it passes to their heir. The monarch has important functions, including appointing ministers, representing the country internationally, approving laws, and agreeing to treaties. Monarchs in democratic nations like the UK are known as constitutional monarchs, meaning they are bound by rules that ensure they act in accordance with democratic principles. The current UK monarch, King Charles III, has legal responsibility for crucial functions like appointing and removing the Prime Minister, dissolving Parliament, approving primary legislation, and acting as head of the Armed Forces and the Church of England.
The aristocracy, represented by the House of Lords, has traditionally played a role in the British constitution. The House of Lords historically consisted of the landed aristocracy and political allies of the monarch or government. However, it has undergone gradual reform, and today, most peers are life peers appointed by the government, with only 92 hereditary peers remaining after the House of Lords Act 1999.
Democracy in the UK has evolved over time, with the English Parliament influencing the development of representative government in Europe during the Middle Ages. Parliamentary government in Britain faced challenges due to property requirements for suffrage, which limited voting rights to a small percentage of the population. The Reform Act of 1832 is considered a significant step towards parliamentary democracy by extending suffrage to about 7% of the adult population. The UK's commitment to democracy is reflected in its recognition of international law and human rights, as outlined in the Human Rights Act 1998, which ensures the government's compliance with the European Convention on Human Rights.
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Constitutional structure and representation
Thomas Paine identified three components of the British Constitution that required examination and improvement: constitutional structure, representation, and monarchy.
Constitutional Structure
Paine criticized the constitutional structure of the British government, claiming that it prioritized the interests of the government over the rights and freedoms of the citizens. He argued that the government laid out in the English constitution failed to protect the liberty and property of its citizens. Paine felt it was essential to rebuild government systems that explicitly protected individual liberties rather than constraining them.
Representation
Paine advocated for a government system that was more representative of the people's interests. He strongly believed in the idea of a democratic government where the representatives were chosen by the populace, accountable to them, and responsible for protecting their rights. Paine's arguments laid the groundwork for revolutionary thoughts that questioned traditional governance and promoted ideas of democracy and individual rights.
Monarchy
Paine argued against the concept of monarchy and hereditary succession. He believed that a hereditary monarchy was unjust and had no real justification. Paine suggested that the idea of being ruled by a king was outdated, as it was not representative of the people's will or needs. He used the Bible to illustrate God's condemnation of monarchies.
It is worth noting that the UK's constitution is different from many other countries in that its core aspects are not contained in a single legal source. The UK's constitution is uncodified, flexible, and traditionally unitary, but now debatably a union state. The sources of the UK constitution include both law and other less formal documents without legal force.
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Parliamentary sovereignty and the rule of law
The UK constitution is unique in that its core aspects are not contained in a single legal source. Unlike many other countries, the UK did not experience a revolution or political rupture during the late eighteenth or nineteenth century, when written constitutions were most popular. As such, the UK constitution is spread across various sources, including Acts of Parliament, judicial decisions, constitutional conventions, international treaties, the royal prerogative, the law and custom of Parliament, and works of authoritative writers.
One of the main features of the UK constitution is parliamentary sovereignty. Parliamentary sovereignty refers to the idea that Parliament is the supreme law-making body and can make or unmake any law it chooses. This means that there is no clear concept of a 'higher law' in the UK, and constitutional statutes can be repealed or amended by simple majority votes in Parliament.
The rule of law is another fundamental principle of the UK constitution. This means that all public bodies, including Parliament, and private bodies that perform public functions, are bound by the law. The rule of law is upheld by the courts, which interpret and apply the law in a consistent and impartial manner. The courts also play a crucial role in reviewing the decisions and acts of public bodies to ensure that they are acting within the law.
The relationship between parliamentary sovereignty and the rule of law is complex. On the one hand, parliamentary sovereignty suggests that Parliament is above the law and can make or break any law it chooses. On the other hand, the rule of law requires that all bodies, including Parliament, are subject to legal constraints. This tension has been a subject of debate and discussion among legal scholars and constitutional experts.
In conclusion, parliamentary sovereignty and the rule of law are two key components of the UK constitution. While they may sometimes appear to be in tension with each other, both principles are essential to the functioning of the UK's unique constitutional framework.
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Separation of powers and the courts
The UK does not have a strict separation of powers, and the branches of the state are closely linked. The Prime Minister, for instance, is both the head of the executive (the Government) and the leader of the majority party in the legislature (Parliament).
However, the separation of powers is still considered fundamental to how the UK works. The three branches of the state are:
- The legislature (Parliament, which includes the House of Commons and the House of Lords)
- The executive (the Government, which includes the Prime Minister and the Cabinet)
- The judiciary (the courts, which include the Supreme Court, civil and criminal courts, and tribunals)
The legislature makes the laws, the executive puts forward proposals for laws and puts laws into effect, and the judiciary interprets the laws and ensures they are obeyed. The judiciary also decides whether laws have been made properly and whether they are being followed.
The independence of the judiciary is confirmed through statute, constitutional convention, and weight of opinion. Judges in superior courts in England and Wales, for example, cannot be arbitrarily dismissed by the executive but instead serve while in "good behaviour".
The Human Rights Act 1998 has placed a requirement that courts take into account the jurisprudence of the European Court of Human Rights. The Human Rights Act is one of the laws that form part of the UK's constitution, setting out the rights of each person in the UK and the responsibilities of all the branches of the state.
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Acts of Parliament and human rights
The British Constitution is made up of several key components, including the monarchy, the House of Lords, and the House of Commons. One of the most important aspects of the British Constitution is the Acts of Parliament, which set out the laws that all public bodies must follow. These Acts of Parliament are created through a democratic process, with the House of Commons as the dominant chamber.
The Acts of Parliament play a crucial role in protecting human rights in the UK. The Human Rights Act 1998, in particular, sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This Act incorporates the rights outlined in the European Convention on Human Rights (ECHR) into domestic British law, ensuring that public organisations respect and protect these rights.
The Human Rights Act allows individuals to defend their rights in UK courts and provides a framework for judicial review. Courts can review government actions to ensure they comply with the statutory obligation to respect the ECHR. These rights include the right to life, liberty, freedom from torture and forced labour, the right to a fair trial, privacy, freedom of expression, conscience, religion, assembly, and protest.
While the UK has traditionally resisted the idea of a bill of rights, the Human Rights Act introduced a degree of ambiguity regarding parliamentary sovereignty. The Act preserves Parliament's final say on the legality of legislation while also authorising judicial review, leading to questions about the function of the Act and where political legitimacy resides in resolving institutional disagreements.
Despite this ambiguity, the Human Rights Act has been subject to reform discussions rather than outright repeal. Proposals have included replacing the Act with a bill of rights that balances individual rights with national security and effective government, ensuring that UK courts do not interpret legislation contrary to Parliament's "clearly expressed democratic will".
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Frequently asked questions
While there is no single constitutional document in the UK, Thomas Paine identifies three components of the British Constitution that required examination and improvement: monarchy, constitutional structure, and representation.
Paine argued against the concept of monarchy and hereditary succession. He believed that a hereditary monarchy was unjust and had no real justification. He suggested that the idea of being ruled by a king was outdated and not representative of the people's will or needs.
Paine criticized the constitutional structure of the British government, claiming that it prioritized the interests of the government over the rights and freedoms of the citizens. He advocated for a democratic approach focused on the rights of the people.
Paine advocated for a government system that was more representative of the people's interests. He believed in a democratic government where representatives were chosen by the populace, accountable to them, and responsible for protecting their rights.
The sources of the UK Constitution are various, including both law and other less formal documents without legal force. Acts of the UK Parliament form a major source for aspects of the UK Constitution, providing for devolution settlements, the right to vote and hold elections, the upholding of human rights, and more.
