The book provides an analysis of the contemporary state of the British constitution, identifying ambiguities and the changing relationships at the heart of the constitution. It offers a succinct and accessible overview of the core features of how the UK is governed – the key principles and conventions underpinning the constitution and how they are under pressure. It is essential for anyone wanting to make sense of the UK constitution in a period of constitutional turbulence, not least following the referendum to leave the European Union, three general elections in five years, major judgments by the UK supreme court, governments suffering major defeats in the House of Commons, and pressure for more referendums, including on Scottish independence and on remaining in the European Union. Each chapter draws out a core feature of the constitution, not least a relationship between different organs of the state, and offers an explanation of its shape and operation and the extent to which it is changing. It examines the key principles underpinning the UK constitution, the extent to which they are contested, and how political behaviour is shaped by convention.
The United Kingdom has a parliamentary system of government. The House of Lords
is the second chamber of Parliament. As with the House of Commons, there was no
specific date on which we can say it came into existence. The House of Lords has
its origins in the courts of medieval kings, starting with the Anglo-Saxon
Witenagemot and its Norman successor, the Curia Regis. It is distinctive for
three reasons. The first is the very fact of its existence as a second chamber.
Its second distinctive feature is to be found in its origins and its longevity.
The third distinctive feature is that the members of the House are not elected.
In this, the House is not unique. Several nations, including Canada, have
appointed second chambers. The fact that members of the House of Lords are not
elected is core also to understanding the debate on reform of the House. In
order to give shape to the debate, the book adopts four approaches to reform:
the four Rs of retain (keep the House as an appointed chamber), reform (have a
minority of members elected), replace (have most or all members elected), and
remove altogether (abolish the House and have a unicameral Parliament). It looks
at the origins and development of the House of Lords and the reforms
implemented, or proposed, in the period since 1911. The book draws out the
problems inherent in trying to discern the future of the House of Lords.
The United Kingdom has exhibited a parliamentary system of government, but
one premised essentially on English political dominance and English
constitutional norms. The issue of the numbers to be returned to Westminster
was overshadowed by the Irish uprising and Unionist determination to
preserve Ulster as part of the United Kingdom. Attempts have been made to
find an answer to the 'English question' and, given the reality of
devolved assemblies, to improve co-operation between the legislatures of the
United Kingdom. For electoral success, the Labour Party relies normally on
success in Scotland to deliver a parliamentary majority. The nature of the
parties involved has changed but the fundamentals of what Giovanni Sartori
termed 'two-partism' have characterised the English system and,
for much of the twentieth century, extended to the rest of Great
The chapter identifies the nature of constitutions and constitutionalism and explains the distinctive nature and history of the United Kingdom’s uncodified constitution, shaped especially by the outcome of the glorious revolution in the seventeenth century and the development in the nineteenth century of the Westminster model of government. It draws out the settled nature of the constitution for most of the twentieth century, the pressures it has since faced, the myriad constitutional changes that have occurred since the late twentieth century under successive governments and demands for more, including a codified constitution, and the different approaches to constitutional change that have developed, producing a constitution that has moved from being settled to unsettled and contested.
Does parliamentary sovereignty trump the rule of law?
The chapter examines the two concepts seen as the twin pillars of the constitution – parliamentary sovereignty and the rule of law. It defines parliamentary sovereignty, drawing on the classic work of A. V. Dicey, and draws out the problems associated with defining the rule of law and the implications of a clash between parliamentary sovereignty and the rule of law. Though twin pillars of the constitution, they are not necessarily equal pillars. It examines recent challenges by some judges to the supremacy of parliamentary sovereignty, developed in recent court cases, and the implications of the claim that the doctrine is the product of common law and therefore can be overridden by the courts.
This chapter defines and discusses the role of constitutional conventions, viewing them as the oil in the formal machinery of the constitution. It distinguishes them from law and practice. It examines how conventions come into being and details key conventions of the constitution, such as the monarch giving assent to any bill passed by the two Houses of Parliament and the prime minister having to be an MP. It identifies practices that have been confused with conventions (such as the Sewel ‘convention’), conventions than have been transposed into statutes (such as elections resulting from votes of no confidence), and conventions that have been broken or appeared close to being broken, not least under the premiership of Boris Johnson.
This chapter analyses the constitutional consequences of the United Kingdom joining the European Communities (EC), later the European Union (EU), creating a new juridical dimension to the UK constitution, and how Parliament adapted to membership through adapting its structures to enable it to scrutinise and influence proposals for European law. It identifies the problems deriving from the result of the 2016 referendum on leaving or remaining in the EU, the challenges encountered by the May and Johnson governments in seeking to negotiate a withdrawal agreement and achieve parliamentary approval for that agreement and the clash between the outcomes of the 2016 referendum and the general election of 2017.
The chapter identifies the history of referendums in the United Kingdom, examines calls for their use in the nineteenth and twentieth centuries, their use in and since the 1970s and the arguments deployed for and against their employment. It focuses on the implications of requiring parliamentary approval and their use on an ad hoc basis. It addresses the consequences of their use and the clash of legitimacies entailed by the use of referendums (direct democracy) and general elections (representative democracy).
This chapter examines the relationship between the courts and parliament as well as the executive. It addresses the consequences of creating a supreme court and the developments that have led to a more central role for the courts in determining issues of constitutional importance. It analyses the relationship between the courts and parliament, and between the courts and the executive, in terms of three models: strangers (respective autonomy), friends (democratic dialogue) and foes (competing authority), finding that the relationship between the courts and parliament has moved principally from one of respective autonomy to one of democratic dialogue, whereas that between the courts and the executive has become one on occasion of competing authority.
This chapter examines how Parliament controls its own proceedings, drawing on its power of exclusive cognisance and article 9 of the Bill of the Rights, and how it seeks to exert its authority in ensuring those outside Parliament comply with its summons to attend and give evidence. It addresses the role of the courts in determining the scope of exclusive cognisance and what constitutes proceedings in Parliament, and the potential – occasionally realised – of clashes between Parliament and the courts. It draws out reforms proposed to enforce the use of parliamentary privilege and the extent to which change is likely.