🇬🇧UK Constitution and Government Unit 12 – Comparative Constitutionalism

Key Constitutional Concepts

• Constitutionalism establishes the principles and rules that govern the exercise of state power and protect citizens' rights
• Rule of law ensures that all individuals and institutions, including the government, are subject to and accountable under the law
• Parliamentary sovereignty grants the UK Parliament the supreme legal authority to create, amend, or repeal any law without being constrained by a codified constitution
  • Dicey's doctrine of parliamentary sovereignty states that no person or body, including the courts, can override or set aside an Act of Parliament
• Conventions are unwritten practices, customs, and norms that play a crucial role in the UK's uncodified constitution
  • Constitutional conventions (Cabinet collective responsibility) shape the behavior and decision-making processes of political actors
• Separation of powers divides state power among the executive, legislature, and judiciary to prevent concentration of power and ensure checks and balances
• Judicial review empowers courts to assess the legality of executive actions and the compatibility of legislation with constitutional principles or human rights

Historical Context

• The UK's constitutional development has been shaped by a gradual evolution spanning centuries, rather than a single defining moment or document
• The Magna Carta (1215) established the principle that the monarch's power is subject to the law and laid the foundation for the rule of law
• The Bill of Rights (1689) affirmed the supremacy of Parliament over the monarch and enshrined certain civil liberties
  • Prohibited the monarch from suspending or dispensing with laws without Parliament's consent
  • Guaranteed free speech in Parliament and the right to petition the monarch without fear of retribution
• The Act of Settlement (1701) established the independence of the judiciary by ensuring judges' tenure during good behavior and preventing their removal by the executive
• The Reform Acts of the 19th century (1832, 1867, 1884) gradually expanded the franchise and made Parliament more representative of the population
• The Parliament Acts (1911 and 1949) limited the power of the House of Lords and affirmed the primacy of the House of Commons in the legislative process

UK Constitutional Framework

• The UK has an uncodified constitution, meaning its constitutional rules and principles are not contained within a single, written document
• The constitution is derived from various sources, including statutes, common law, conventions, and works of authority
  • Statutes (Human Rights Act 1998) are laws passed by Parliament that form part of the constitutional framework
  • Common law (rule of law) consists of legal principles developed by judges through court decisions over time
  • Works of authority (Dicey's Introduction to the Study of the Law of the Constitution) provide influential interpretations and analyses of constitutional principles
• The UK's constitutional arrangement is characterized by a fusion of powers, where the executive and legislative branches are closely intertwined
  • The Prime Minister and most Cabinet members are drawn from the majority party in the House of Commons
• The monarchy plays a largely ceremonial role, with the Queen acting as the head of state and symbolizing the unity of the nation
• Devolution has transferred certain powers to the Scottish Parliament, Welsh Parliament, and Northern Ireland Assembly, creating a quasi-federal system

Comparative Models

• Presidential systems (United States) feature a strict separation of powers, with the president directly elected by the people and serving as both head of state and head of government
  • The president has a fixed term and can only be removed through impeachment for serious misconduct
• Semi-presidential systems (France) combine elements of both presidential and parliamentary systems
  • The president is directly elected and holds significant powers, while the prime minister is responsible to the legislature
• Federal systems (Germany) divide power between a central government and constituent states or regions, each with their own constitutionally guaranteed powers
  • The division of powers is typically enshrined in a written constitution
• Unitary systems (UK) concentrate power in the central government, with any powers exercised by regional or local governments being delegated from the center
• Codified constitutions (United States, Germany) are single, written documents that comprehensively set out the structure, powers, and limits of government institutions
  • Codified constitutions are often entrenched, requiring special amendment procedures

Rights and Liberties

• The UK has traditionally relied on the common law, conventions, and specific statutes to protect individual rights and liberties
• The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law, providing a statutory basis for the protection of human rights
  • The Act requires public authorities to act in a way compatible with Convention rights
  • Courts can issue a declaration of incompatibility if they find that a statute is incompatible with Convention rights
• The ECHR enshrines fundamental rights and freedoms (right to life, prohibition of torture, right to a fair trial)
• The UK has a negative conception of rights, emphasizing the absence of state interference rather than positive obligations on the state to provide for certain rights
• The principle of legality presumes that Parliament does not intend to interfere with fundamental rights unless it expresses such an intention in clear and unambiguous language
• The common law has developed principles (natural justice) to protect individual rights and ensure fairness in administrative decision-making

Separation of Powers

• The separation of powers doctrine aims to prevent the concentration of power by dividing state functions among the executive, legislature, and judiciary
• In the UK, the separation of powers is not strictly observed due to the fusion of the executive and legislative branches
  • The executive (Prime Minister and Cabinet) is drawn from and accountable to the legislature (House of Commons)
• The judiciary maintains independence from the other branches through the Constitutional Reform Act 2005, which established the Supreme Court and the Judicial Appointments Commission
  • Judges are appointed based on merit and cannot be removed except for serious misconduct
• The judiciary's role in upholding the rule of law and protecting individual rights has expanded through the Human Rights Act 1998 and the development of judicial review
• The doctrine of parliamentary sovereignty limits the extent to which the judiciary can challenge the validity of legislation
  • Judges can interpret statutes in a way compatible with fundamental rights, but cannot strike down Acts of Parliament

Constitutional Reform

• The UK's constitution has undergone significant reforms in recent decades to modernize and democratize the political system
• The House of Lords Act 1999 removed most hereditary peers from the upper chamber, making it more representative and accountable
• Devolution (Scotland Act 1998, Government of Wales Act 1998, Northern Ireland Act 1998) has transferred powers to regional assemblies, recognizing the distinct identities and interests of the UK's constituent nations
  • The Scottish Parliament and the Welsh Parliament have legislative competence over devolved matters (education, health)
• The Human Rights Act 1998 has strengthened the protection of individual rights and provided a basis for challenging executive actions and legislation
• The Constitutional Reform Act 2005 enhanced the independence of the judiciary by establishing the Supreme Court and reforming the judicial appointments process
• The Fixed-term Parliaments Act 2011 set fixed five-year terms for the House of Commons, removing the Prime Minister's power to call an early election at will
  • The Act was repealed in 2022, restoring the prerogative power to dissolve Parliament

Contemporary Challenges

• Brexit has posed significant constitutional challenges, raising questions about parliamentary sovereignty, devolution, and the UK's relationship with international law
  • The Miller cases (2017 and 2019) affirmed Parliament's role in triggering and implementing the withdrawal process
  • The UK's departure from the EU has implications for the devolution settlements and the distribution of powers between Westminster and the devolved administrations
• The growth of executive power, particularly in the context of emergency legislation and the COVID-19 pandemic, has raised concerns about the balance between the branches of government
  • The Coronavirus Act 2020 granted the government wide-ranging powers to respond to the public health crisis
• Calls for further devolution and potential independence referendums (Scotland) challenge the UK's constitutional unity
• The role of the judiciary in constitutional matters has come under scrutiny, with some accusing judges of political activism and undermining parliamentary sovereignty
  • The government has proposed reforms to judicial review to maintain the balance between the judiciary, executive, and legislature
• The increasing use of referendums (Brexit, Scottish independence) as a means of making major constitutional decisions raises questions about the relationship between direct and representative democracy
• Proposals for a codified constitution or a Bill of Rights aim to provide greater clarity, coherence, and protection for constitutional principles and individual rights