This website uses cookies to ensure you get the best experience on our website. Learn more

Politics Notes British Constitution Notes

British Constitution Notes

Updated British Constitution Notes Notes

British Constitution Notes

British Constitution

Approximately 25 pages

This is part of the British Politics series covering Margaret Thatcher and the Conservative governments (1979-97), New Labour and British Constitution. This package contains: (1) exam notes on the 'British Constitution' and (2) an essay titled 'What, if anything, is wrong with the British constitution?' Useful for: 1) understanding whether the British Constitution is transitioning from the doctrine of parliamentary sovereignty to a codified one, with discussions about A. V. Dicey, devolution, ent...

The following is a more accessible plain text extract of the PDF sample above, taken from our British Constitution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Definition of constitution

  • (1) 'a section of the most important legal rules regulating the govt and embodied in a document promulgated at a particular moment of time' i.e. American constitution, French constitution

  • (2) 'a collection of the most important rules prescribing the distribution of power between the institutions of government—legislature, executive and judiciary—and between the individual and the state' —Britain, Israel and New Zealand all have uncodified constitutions

  • why does Britain not have a written constitution?

    • almost all codified constitutions mark a new beginning in the nation's history e.g. independence, change of regime. There has not been no fundamental change in the nature of the English state since the time of Oliver Cromwell (who actually drew up a codified constitution called an Agreement of the People)

    • Great Reform Act of 1832 closest to a constitutional moment. It reinforced the supremacy of the parliament

    • Sidney Low: 'other constitutions have been built; that of England has been allowed to grow.’

    • the more conceptual reason is that the Parliament represents sovereignty. There is no point in having a constitution because part of the reason for a constitution is to limit the power of the Parliament. Therefore, 'the Parliament is at once a legislative and constituent assembly' (Bogdanor 2009)

The old constitution

Characteristics of the old constitution

  • A.V. Dicey (1835-1922), a 19C jurist, popularised a version of the ‘old constitution’ through Introduction to the Law of the Constitution.

    • He announced two fundamental doctrines: parliamentary sovereignty and the rule of law.

    • Both are supposed to be both descriptive and normative.

  • Parliamentary sovereignty

    • Dicey famously used the examples of the Act of Union with Scotland and the Dentists Act 1878 as examples. They had equal status and none has more claim than the other to be considered a supreme law. ‘Should the Dentists Act, 1878, unfortunately contradict the terms of the Act of Union, the Act of Union would be pro tanto repealed…’

    • H. L. A. Hart distinguished between two versions of the doctrine of parliamentary sovereignty.

      • Continuing omnipotence, embraced by older constitutional theorists: sovereign in the sense of being free from any legal limitations on it but also from prior legislation. This is what Dicey argued for in the quote above.

      • Self-embracing omnipotence, supported by Hart as the better interpretation: the Parliament should be self-limited by the decisions of its predecessors. ‘Parliament would at least once in its history be capable of exercising an even larger sphere of legislative competence than the accepted established doctrine allows to it.’

  • Near complete fusion of legislative and executive power

  • Relies on conventions e.g. royal assent (the monarchy legally can refuse to give assent to laws passed by the Parliament but by convention she wouldn't); Salisbury Convention (House of Lords should not defeat any legislation that has been promised in the govt's election manifesto; it arose when there is an overwhelming Conservative majority in the House of Lords, but a majority left govt in 1945)

  • 'The old constitution, then, was a political constitution, in that its character was determined by events rather than pre-existing constitutional norms' (Bogdanor 2009). One author claimed that the old constitution was 'no more and no less than what happened. Everything that happens is constitutional' (Prof John Griffith)

Problem with that interpretation

  • The understanding of the British constitution has been very much in the shadow of Dicey. The first resistance against that was in 1930s (by Sir Ivor Jennings)

    • ‘Dicey's word has in some respects become the only written constitution we have’ (Jowell and Oliver 1985)

    • Lord President Cooper in the MacCormick v. Lord Advocate (1953) made an obiter that ‘the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law’. It is therefore difficult to comprehend why this doctrine should prevail in the Parliament of Great Britain.

  • Iain McLean (2010) argues that the British Constitution has always been incoherent.

    • The Acts of Union 1706/7 with Scotland imposed two conflicting duties on the monarch of Great Britain. The incorporated Scottish Act is an Act for securing the Presbyterian Church Government, which it proclaimed as the true Protestant Religion’. On the other hand, the English Act requires that the monarch should preserve the Church of England. These two incompatible requirements are found in a single Act of Parliament, the (English) Union with Scotland Act 1706.

  • The parliament has not followed the doctrine of ‘continuing omnipotence’

    • In the ‘Declaratory Articles’ of the Church of Scotland Act 1921, Parliament bound itself to recognise the doctrines of the Church of Scotland. All statutes and laws that are inconsistent with the Declaratory Articles would repealed and nullified.

  • Dicey was Anglo-centric and a unionist. McLean (2010) argues that his views on Irish Home Rule actually made his writings on constitution incoherent

    • Throughout his writings Dicey refers to ‘England’ and the ‘English Constitution’ to mean the United Kingdom and the British Constitution

    • Dicey was angry that Gladstone used his name to justify the 1886 Home Rule Bill (which failed). This was followed by the 1893 (Second) and 1912 (Third) Home Rule Bill. The latter entered into force without the Lords’ assent.

    • He was one of the main godfathers of the Unionist revolt of 1912–14. A coalition including the king, the leaders of the Opposition, the House of Lords, and a group of contingently mutinous army officers vetoed the policies of the elected government.

    • Dicey moved from the doctrine of continuing omnipotence first to an ill‐expressed doctrine of popular sovereignty, and then towards self‐embracing omnipotence. In 1913, he declared ‘parliament is sovereign except when...

Buy the full version of these notes or essay plans and more in our British Constitution Notes.

More British Constitution Samples