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The British constitution is largely unwritten and flexible. It draws from a variety of sources including acts of Parliament, legal cases that have developed constitutional conventions and principles, administrative agreements between levels of government, and international treaties. As an uncodified system, the British constitution has evolved gradually through history rather than being designed in a single founding document.
The British constitution is largely unwritten and flexible. It draws from a variety of sources including acts of Parliament, legal cases that have developed constitutional conventions and principles, administrative agreements between levels of government, and international treaties. As an uncodified system, the British constitution has evolved gradually through history rather than being designed in a single founding document.
The British constitution is largely unwritten and flexible. It draws from a variety of sources including acts of Parliament, legal cases that have developed constitutional conventions and principles, administrative agreements between levels of government, and international treaties. As an uncodified system, the British constitution has evolved gradually through history rather than being designed in a single founding document.
Constitutions may be written or unwritten. The British constitution is largely unwritten and uncodified. Similar to this characteristic, constitutions may be classified as rigid or flexible. A rigid constitution is one in which amendment is very difficult, requiring special procedures to be employed before any changes can be made. This is because the founders devise the constitution as a complete statement of arrangement for the future; hence it is generally very difficult to amend a written constitution for example USA. British constitution is essentially flexible i.e. Parliament the supreme law making authority in UK may theoretically alter the constitution at will, although in practice this can be done only with the support of the people. Republican and Monarchical Constitutions may be classified according to whether they are republican or monarchical. In a republic, such as USA, there will normally be a Head of State who is directly elected by the people. In Britain, the monarchy remains, with the Queen as Head of State and holds widespread formal powers under the royal prerogative. In practice, these powers are conventionally exercised by the elected government of the day which is headed by the Prime Minister. Unitary and Federal Constitutions can also be regarded as whether being unitary or flexible. A written constitution defines which powers are exercisable by the constituent parts of the federation states. In a federal state power is diffused rather than concentrated in any one body. The constitution has overriding force and any conflicts between the federal government and the state government will be determined according to it. Britain is a unitary state with one Parliament having ultimate law making power over all constituent nations England, Scotland and Wales. Where powers are devolved to local government and now to assemblies of Northern Ireland, Scotland and Wales, these powers remain subject to the UK Parliaments ultimate control. Supreme and Subordinate A further classification explains whether a particular constitution is supreme or subordinate. A supreme constitution is not subject to any external superior force. Whereas, a subordinate constitution is where as former British colonies the constitution is drafted and introduced in a country by an external sovereign power and theoretically may be amended or repealed by that external force. In relation to this aspect, there is much debate regarding the British constitution following membership of the European Union. From the standpoint of the European Court of Justice of the Community, the treaties that establish and define the Community and Union are supreme, and sovereign. Thus, the sovereignty of all EU member states is limited by membership. However, from the standpoint of the British judges, the sovereignty of the British Parliament is intact. They say that they have voluntarily accepted Union law because an ordinary Act of Parliament the European Communities Act 1972 provides for its reception and enforcement within the domestic courts of law. Separation Of Power A constitution may be classified according to whether the powers and functions of the principle institutions of the state the executive, legislature and judiciary are separated or not. In Britain there is no clear separation of powers. The Unwritten Nature of the British Constitution Britains largely unwritten constitution is the product of history and is a result of gradual evolution rather than any conscious effort to design a complete system of constitution and government. The 1997 elections, however, ushered in a government with an agenda for significant constitutional change, much of which has been achieved. The evolution of the constitution and the current reform programme illustrates the flexible nature of the constitution. The British constitution has never been designed through a basic constitutional document. Nevertheless, it is clear that Britain has a constitution that identifies rules and procedures relating to the principal institutions of the state. Sources of the Constitution UK constitution is regarded as a dispersed constitutional rulebook. This statement points towards the need for constitutional rules that may be found in a variety of different sources. 1. The Cabinet Manual 2011 is one possible source. It was written by the UKs most senior civil servant, the Cabinet Secretary and endorsed by the Labour Prime Minister, Gordon Brown, and then by the Conservative Prime Minister, David Cameron.
The Cabinet Manuals possible constitutional significance was examined by several parliamentary committees with the House of Commons Political and Constitutional Reform Committee taking the most positive view:
The Manual, however, seems in part to be intended as or might become, whatever the intention the basis for a shared understanding beyond the Executive of important parts of the United Kingdoms previously uncodified constitution
Although the Cabinet Manual is not yet considered to be part of the constitution, there is no doubt that key Acts of Parliament within the so-called statute book contain very important constitutional rules. Some of the key Acts include the Bill of Rights 1688, which protected freedom of speech in Parliament and the Parliament Acts 1911 and 1949 which enabled the House of Commons, in certain limited circumstances, to approve and obtain the Royal Assent to a Bill without the approval of the House of Lords. The Senior Courts Act 1981 sets out the structure of the courts in England and Wales whilst the Government of Wales Act 2006 and the Scotland Acts 1998 and 2012 set out the terms of the devolution settlements for Wales and Scotland, allowing a measure of self-government.
2. Another source for the dispersed constitutional rulebook can be found in the judgments set out in case reports. In many cases broad and fundamental principles have been set out.
Judges have developed the body of constitutional case law in several different ways. One method involves the key responsibility of statutory interpretation. As the importance of Acts of Parliament and subordinate legislation has grown, judges have applied wider constitutional principles when interpreting objectionable, but clear, wording.
A second method by which the courts have developed constitutional law is through the body of law known as judicial review. Here, decisions of government ministers (and other public bodies) are challenged on a number of technical grounds, including acting ultra vires (beyond the powers given to them by statute) and irrationality where the decision is, according to Lord Diplock, in the GCHQ case so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
3. Constitutional conventions are another source. The Cabinet Manual defines constitutional conventions as rules of constitutional practice that are regarded as binding in operation but not in law. Examples of constitutional conventions include the requirement that the Prime Minister is always a member of the House of Commons. Ministers in the government must always, by convention, be members of the House of Commons or House of Lords. There is also a developing convention that the House of Commons should be given the chance to debate military operations before decisions are made, unless in the case of an emergency.
Most constitutional conventions exist in a written form of various kinds. Some conventions dealing with the practice of government have been set out in memoranda of understanding or concordats. These have been used as a means of describing and regulating the relationship between the UK government in Westminster and the devolved governments in Scotland, Wales and Northern Ireland. The Memorandum of Understanding and Supplementary Agreements made in September 2012 between the UK government and the devolved governments is the latest example.
Professor Richard Rawlings has described such agreements as administrative quasi- legislation or a pseudo-contract and has highlighted how they lead in the direction of codification of the detailed rules which are set out. As well as concordats, conventions may be described in the form of codes. Codes are published by government, with one of the most significant ones being the Ministerial Code governing the conduct of ministers, including the Prime Minister.
4. EU law is another important source. The body of written EU law in the form of Directives, Regulations etc., as well as decisions of the Court of Justice of the European Union now has supremacy over UK law in the case of conflict.
5. International law is also a very significant source for the dispersed constitutional rulebook. There are two types of international law: customary international law and treaties. Customary international law has been described by Shaheed Fatima as having two constituent elements: the actually wide-spread and consistent conduct of states (state practice) and the belief that such conduct is required because a rule of law renders it obligatory. Examples of customary international law include prohibitions against genocide and torture and the right to self-determination. Treaties are, in practice, probably the most important area of international law. Although they are usually made between nation states, certain international organisations are sometimes parties as well. Under UK law treaties become a source of national law when the government has signed and ratified the treaty and Parliament has passed legislation incorporating it into UK law. This explains the significance of the Human Rights Act 1998 which gave legal effect in the UK to the European Convention on Human Rights (which was ratified in 1951).
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