The Constitution

The Invisible Palace—Part 2

'Be you never so high, the law is above you

Thomas Fuller, chaplain in the army of King Charles I and chaplain to King Charles II.

'May she defend our laws,

And ever give us cause

To sing with heart and voice,

God save the Queen.'

Extract, second verse, the National Anthem.

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The Throne Room of our Invisible Palace is the British Constitution. The way in which a country is governed, and power is organised and distributed, is called its constitution.

In many countries the constitution is written down. They therefore have what is known as a written constitution. One of the oldest examples of a written constitution is the Constitution of the United States of America (USA) which was written in 1787. Among the most recent are the Constitution of South Africa, which was drawn up in 1992, and that of the newly independent State of Ukraine, whose Parliament passed its written constitution in 1998.

In the countries of the United Kingdom we do not have a written constitution to tell us how power is to be divided up and exercised. The way in which we are governed is of course known, and has been written about in many books, but we do not have one document which sets it all out for us. Until October 2000 we had no single document to guarantee our rights as citizens, but that at least has changed. We do now have a statute which guarantees our 'human rights'—the Human Rights Act 1998, which came into force on 2 October 2000, and we will be looking at the rights which it confers later in this book.

Our unwritten constitution has been developing for over 700 years, and it continues to do so. It is in part founded upon statute and case law, but mainly

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upon custom and convention—the widely accepted view of proper behaviour, which has become hardened into accepted rules of law. According to Halsbury's Laws of England, our constitution is based upon the idea that 'no body or political party has a monopoly of wisdom, that State bodies should be democratically and legally accountable, and that they should promote good govern­ment in the general interest, rather than in their personal interests or the interests of limited sections of society.'

In practice this means that no one person should be given so much power that he or she can become a dictator and tyrant, whether that person be the sovereign, a politician, an army general, or anyone else. Power is separated and distributed in such a way that this cannot happen. This principle is called the separation of powers.

The British Constitution is therefore unwritten and it is flexible. It is open to relatively quick change by Act of Parliament to meet the changing needs of the nation. This is one important difference between our system and that of the USA, which, being written, is more rigid, and can only be changed by special procedures, which can take a long time.

Alternatively, a written constitution is intended in the most open way to be a blueprint for the way in which a country is to be governed, and to guarantee individual rights; and the US constitution has, in a way for all to see, given rights and provided a means by which judges have the power and duty to oversee the protection of those rights. They have the power and duty to protect the series of checks and balances built into the constitution which limit the power of the US government. This means that US judges can even 'strike down' laws made by Congress (the US legislature) if they are contrary to the constitution.

In the United Kingdom (UK), power is divided so as to ensure that it never becomes dangerously concentrated in the hands of one person, or even a small group of people. At one time, power and responsibility were said to reside in the Three Estates of the Realm': the Crown, the Clergy, and the Laity (non-clergy). The 'Fourth Estate' was Edmund Burke's ironical phrase for the Press, in whom resides 'power without responsibility*. The present constitutional theory, which has grown into hardened practice, is that power is divided between three main organisations. Each is to a greater or lesser extent independent of the others, but at the same time owes allegiance to, and is under the nominal control of, the Crown.

In this separation of powers, the idea is to separate and therefore limit the powers of government by splitting governmental functions into the legisla­tive, executive and judiciary. The concept has its fullest practical expression

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in the US constitution. The first three Articles of the US constitution establish these as the three branches of government, and specify powers entrusted to each as a means of ensuring that no one branch can exert unlimited power.

In due course we will see some practical examples of the way power is separated in our constitution. Figure 4.1 shows, in a simplified way, how it is supposed to work:

Figure 4.1 The separation of powers

We will look first at the roles of the legislature, executive, and judiciary in our constitution, and then at that of the monarch.

Date: 2015-01-12; view: 1290