British constitution a political constitution
Is The British Constitution A Political Constitution?
Never has the hot debate related to constitution failed to attract our eyes. The British constitution is always controversial for its unique character. Some people hold that the British constitution is “political” rather than “legal” in character.
By and large, all constitutions are political, it is hard to draw sharp distinction between politics and law, and this is due to the nature of constitution. As it is defined by a select committee appointed by the House of Lords to “keep under review the operation of the constitution”, the constitution is “the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.”
Constitutional law concerns the function of government organs and the relationship between government and individuals, it sets out rules of the operation of the whole political system of a country, which makes it can hardly avoid being political.
In a famous lecture “The Political Constitution” given by John Griffith in 1978, he illustrated the relationship between constitution and day-to-day political activity: he thinks that constitution is expression of political activities, and is subject to the changing political circumstances.
Definition Of “Political Constitution”
Before the evaluation of the British constitution in the question of whether it is fair to say it is political, we need to define a “political constitution”.
There are many different classification of constitution, classified by the format of law for example, it is well known that the British constitution is unwritten constitution. Adam Tomkins thinks a more significant distinction is the way constitution regulates the enterprise of government. He raised the conception of political and legal constitutions in his work <Public Law>.
“A political constitution is one in which those who exercise political power (let us say the government) are held to constitutional account through political means, and through political institutions (for example, Parliament).” In contrast, a legal constitution is “one which imagines that the principal means, and the principal institution, through which the government is held to account is the law and the court-room.”
A similar definition of the term “political constitution” has been suggested by Bellamy that a democratic political constitution recognizes that “institutionalize mechanisms of political balance and political accountability that provide incentives for politicians to attend to the judgments and interests of those they govern”.
Why Say The British Constitution Is “Political”
There are several reasons that the British constitution is considered as political constitution. In this essay it would be discussed in following aspects: the historical reason, the fusion and overlaps between three branches of government, and the strong power owned by executive organ.
Firstly, the historical factors cannot be ignored when assess the political essence of the British constitution. The British constitution is a historical one, the traditional constitution was passed in early 20th century, the framework it set had not been challenged for 50 years afterwards. It was challenged during the wars, and since 1970 the traditional constitution has faced major changes caused by membership of the European Community (now the European Union) and the constitutional changes introduced by the Labour government elected in May 1997.
The British constitution is distinctive for not being codified, there is no particular process for the amendment of constitutional law, and every big change of constitution is always companied with significant political issue. Thus, the changing constitution is comparatively more changeable and flexible according to the continually changing political circumstances, the constitution itself is embodies the consistence changing events over a long political life time.
The second one is the overlaps between three branches of government (executive, legislative, and judicial).
The separation of powers is found in many countries' constitution. The idea of balance and restrict each other is held to be fundamental spirit when creating a constitution. Separation of powers is based on the division of government into functions and organs. As Lord Acton said, “Power tends to corrupt and absolute power corrupts absolutely.” By maintaining a balance between political forces, power is prevented from being concentrated in the hands of people who would be tempted to abuse it.
According to Bradley and Ewing, the concept of separation mean that the same person should not form part of more than one of the three organs of government, one organ of government should not control or interfere with the work of another, one organ of government should not exercise the functions of another. However, it is no overstatement to say that the British constitution adopt this principle very little.
The crucial overlap between the legislative and executive comprises Prime Minister, Cabinet and the other junior ministers. The Lord Chancellor is the government's chief law officer, a member of the Cabinet, and is appointed by the sovereign on the advice of the Prime Minister.
The same point has been supported by Tony Wright, “…the British system has since come to be characterized as peculiarly lacking in institutional checks and balances and with the principle of a separation of powers conspicuous by its absence.”
Another considerable reason to say that the British constitution is political constitution is that strong power owned by executive. The British political system is always being contrast with that of the USA. The British electoral system is a “winner gets all” system. The British Prime Minister has more power, compared with other countries' executive head, the US President for instance. The US constitution ensures that the President cannot be overthrown by Congress while the British Prime Minister leads both the executive and legislative organs of government.
Moreover, the executive's power is reinforced by the doctrine of parliamentary sovereignty, thus it can overrule any law, including constitutional ones with a majority vote. Some people believe that to some extent control of Parliament by the executive may even means that in reality we have sovereignty of government.
In UK, the three functions of government overlap significantly. To change or re-elect a government needs only one election, after which the majority party in the legislative chamber forms the executive. And the judiciary is appointed by the executive.
Political In Character – Is It Indeed A Bad Thing?
When we judge a law as “political”, it tends to be derogatory. However being political does not must be opposite to just and beneficial. The main advantage of having a political constitution is the high efficiency. Walter Bagehot identified the British constitutional system as the “efficient secret” or “the close union, the nearly complete fusion, of the executive and legislative powers”, with cabinet being responsible to parliament.
“The connecting link is the Cabinet… A cabinet is a combining committee – a hyphen which joins, a buckle which fastens the legislative part of the State. In its origin it belongs to the one, in its functions it belongs to the other”.
It is undeniable that there are significant overlaps between three branches, and the power is comparatively concentrated in executive, but the true point is they worked. The British constitution is “the most flexible polity in existence”, it is also the most stable one. As Henry St John Bolingbroke declared, “It is by this mixture of monarchical, aristocratical and democratical power, blended together in one system, and by these three estates balancing one another, that our free constitution has been preserved so long inviolate”.
The aim of separation of power is to disperse power to institutions that would check each other and ensure that no branch of government became too strong. As we can see, the British constitution achieved this goal. Certain balance in the British constitution between three branches do exist, without absolute separation, to prevent over concentration of powers while enable effectiveness. The British constitution provides check and balance by connection instead of separation. Parliament disciplined royal power and judges enjoy safeguarded independence. “It was a striking portrait, with the efficient secret of the constitution no longer located in the separation of powers but in their fusion”
The British constitution is political in character, and is a good combination of flexibility and stability. It has changed significantly in recent years and continues to be the subject of political controversy. But the future shape of the British constitution is hard to predict. What we can be sure is, abide by its own character, the British constitution has set a great example for the rest of the world, and it will always do.
Bradley, A.W. & Ewing, K.D. (2007). Constitutional and Administrative Law. England: Pearson Education.
Bellamy, R. (2007). Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge.
Bagehot, W. (2001). The English Constitution. Oxford: Oxford University Press.
Griffith, J.A.G. (1979). The Political Constitution. Modern Law Review 1979:42.1
Tomkins, A. (2003). Public Law. Oxford: Oxford University Press.
Wright, T. (2003). British Politics. Oxford: Oxford University Press.
HL 11(2001-2), ch2
Cm 4534(2000), ch5