The New British Constitution

Author: Professor Vernon Bogdanor

A brief decade (1999 to 2009) introduced radical changes in the way the United Kingdom is governed. Reforms such as the Human Rights Act and devolution have led to the replacement of one constitutional order by another. 

Professor Bordanor's book is the first to describe and analyse Britain's new constitution, asking why it was that the old system, seemingly hallowed by time, came under challenge, and why it is being replaced. 

The Human Rights Act and the United Kingdom devolution legislation have the character of fundamental law. They in practice limit the rights of Westminster as a sovereign parliament, and establish a constitution which is quasi-federal in nature. 

• The old constitution emphasised the sovereignty of Parliament.
• The new constitution, by contrast, emphasises the separation of powers, both territorially and at the centre of government.

The aim of constitutional reformers has been to improve the quality of government. But the main weakness of the new constitution is that it does little to secure more popular involvement in politics.

We are in the uncompleted process of becoming a constitutional state, but not a popular constitutional state. The next phase of constitutional reform, therefore, is likely to involve the creation of new forms of democratic engagement, so that our constitutional forms come to be more congruent with the social and political forces of the age.

The end-point of this piecemeal process might well be a fully codified or written constitution which declares that power stems not from the Queen-in Parliament, but, instead, as in so many [ancient and modern democratic] constitutions, from `We, the People'.

In this book Vernon Bogdanor charts the significance of what is coming to replace it. The expenses scandal shows up grave defects in the British constitution. Vernon Bogdanor also shows how the constitution can be reformed and the political system opened up in`The New British Constitution'.

The supremacy of Parliament

Parliamentary sovereignty means judges cannot invalidate legislation. In practice the UK consents to British and European courts to review legislation to comply with international standards under the Human Rights Act 1998, and consents to follow EU law under the European Communities Act 1972.

In the 19th century, A. V. Dicey, a highly influential constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885).

The pillars of Parliamentary sovereignty and the rule of law.

Parliamentary sovereignty means that Parliament is the supreme law-making body of a nation: its Acts are the highest source of British law.

In the United Kingdom there has been some academic and legal debate as to whether the Acts of Union 1707 place limits on parliamentary supremacy

According to the doctrine of parliamentary sovereignty, Parliament may pass any legislation that it wishes. Historically, "No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea.

By contrast, in countries with a codified constitution, the legislature is normally forbidden from passing laws that contradict that constitution: constitutional amendments require a special procedure that is more arduous than that for regular laws.

There are many Acts of Parliament which themselves have constitutional significance. For example, Parliament has the power to determine the length of its term. By the Parliament Acts 1911 and 1949, the maximum length of a term of parliament is five years but this may be extended with the consent of both Houses. This power was most recently used during World War II to extend the lifetime of the 1935 parliament in annual increments up to 1945.

Parliament also has the power to change the make-up of its constituent houses and the relation between them. Examples include the House of Lords Act 1999 which changed the membership of the House of Lords, the Parliament Acts 1911 and 1949 which altered the relationship between the House of Commons and the House of Lords, and the Reform Act 1832 which made changes to the system used to elect members of the House of Commons.

The power extended to Parliament includes the power to determine the line of succession to the British throne. This power was used to pass His Majesty's Declaration of Abdication Act 1936, which gave constitutional effect to the abdication of Edward VIII and removed any of his putative descendants from the succession; and most recently to pass the Succession to the Crown Act 2013, which changed the succession to the throne to absolute primogeniture (not dependent on gender) and also removed the disqualification of marrying a Roman Catholic. Parliament also has the power to remove or regulate the executive powers of the Monarch.

In the United Kingdom, Parliament consists of the Monarch, the House of Commons and the House of Lords. In recent times the House of Commons has consisted of more than 600 members elected by the people from single-member constituencies under a first past the post system.

Following the passage of the House of Lords Act 1999, the House of Lords consists of 26 bishops of the Church of England (Lords Spiritual), 92 representatives of the hereditary peers and several hundred life peers. The power to nominate bishops of the Church of England and to create hereditary and life peers is exercised by the Monarch, on the advice of the prime minister. By the Parliament Acts 1911 and 1949 legislation may, in certain circumstances, be passed without the approval of the House of Lords. Although all legislation must receive the approval of the Monarch (Royal Assent), no monarch has withheld such assent since 1708.

The House of Commons alone possesses the power to pass a motion of no confidence in the Government, which requires the Government either to resign or to seek fresh elections (this principle was codified in the Fixed-term Parliaments Act 2011). Such a motion does not require passage by the Lords or Royal Assent. The House of Lords has been described as a "revising chamber".

Parliament traditionally also has the power to remove individual members of the government by impeachment (with the Commons initiating the impeachment and the Lords trying the case), although this power has not been used since 1806. By the Constitutional Reform Act 2005 it has the power to remove individual judges from office for misconduct.

BrExit Cross Examined

Offered as circumstantial evidence in accordance with research and life experience provided by our network and specialist KPIs ...

   ☆☆ BrExit day 29 March 2019 ☆☆  
   ☆☆ 129 days and counting ☆☆  

You may not like the EU and its governing institutions. We (meaning the BeNeLux Union) started the ball rolling in London in 1944. It was and is a long and winding road...

WHEN Margaret Thatcher and the modern conservative party began the process of cherry picking, the Tories abandoned the true art of negotiation and started the slow and inevitable process of political and economic erosion of the United Kingdom as a strong sovereign nation with soft power influence and a secure future prosperity...

TRANSITION PROCESS INCOMPLETE

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