It is often difficult to describe exactly what a constitution is. There is no set way in which any country should be governed, and it is therefore very difficult to establish a common definition for the term. In 'The New British Politics,' I. Budge defines a constitution as 'enshrining in law the rights and duties of citizens and the functions and powers of the state and its major branches. '1 Anthony Barnet argues that the British constitution is sufficient in serving the purpose of every constitution.
He states that "every constitution is established to protect the framework within which government and people can attack the problems of job shortages, livelihood and prosperity. "2 In this sense, the British constitution is exactly the same as every other example in world politics. Perhaps the most easily defined constitution is America's 'Bill of Rights,' created in 1788. This written document clearly outlines the rights of American citizens, and is amended when changes to the constitution are made. As for Britain however, she remains one of the few countries in the world where the constitution takes an unwritten form.
Perhaps this is the most obvious argument in favour of the motion that the British constitution is differentiated. It is certainly surprising to learn that it is comprised of Acts of Parliament, treaties, common law and European law- amongst others. This suggests that it is plausible to describe the British constitution as differentiated in so far as it is somewhat disorganised and haphazard. Changeable, if you will. However, this is not necessarily the case. In a very crude sense, the state of British government typifies the position in which a country with a strong constitution should be.
Although the popular image of constitutions is that they limit government power, a more basic function is that they mark out the existence of states and make claims concerning their sphere of independent authority. It is fairly well established that the British government has fairly stringent spheres of authority within the territory of the British Isles, just as governments in the majority of developed countries across the world have. Similarly, constitutions tend to "invariably embody a broader set of political values, ideals and goals.
The use of the word 'invariably by Andrew Haywood in his 'Politics' text suggests a certain degree of continuity throughout the constitutional world. In this sense, The British constitution is not so much differentiated as acting within the flexible boundaries of the loose term 'constitution. ' Indeed, another standardised ideal of constitutions is the aim to create government stability. It is hard to argue that, certainly up until the mid twentieth century, Britain's constitution was the clearest example of a strong and yet flexible government which had taken Britain through two world wars and several periods of internal strife.
One could say that Britain was the perfect example of a typified constitution-led country, and is still managing to operate as a legitimate regime, protecting freedom and establishing unifying values and goals. In fact, it is quite apparent that the constitution in the United Kingdom is exactly the same in ideology and objective as every other constitution ever created. Indeed, such pre-democratic institutions as the monarchy and the House of Lords as well as the common law have been retained and adapted rather than abolished.
The outer shell of the constitutional settlement of 1689 has been preserved largely in tact even though, over the years, the political system has been democratised, major shifts between the balance of power between particular institutions have occurred and the role of government has been transformed. The Conservative manifesto of 1997 claimed that "… the history of the United Kingdom has been one of stability and security. We owe much of that to the strength and stability of our constitution. " 6 There are, however, two sides to every story, and the story of the British constitution is no exception.
There are indeed numerous, if not immeasurable, examples suggesting why it could be accurate to describe the British constitution as differentiated. Perhaps the most cynically accurate description of constitution in Britain came from Walter Bagehot when he stated that "… the British Constitution has continued in connected outward sameness, but hidden inner change, for many ages… " and goes on to say "an ancient and ever-changing constitution is like an old man wearing the fashions of his youth. What you see of him is the same, what you do not is wholly altered.
"5 It is these continuous additions and variations that make it unclear exactly what the constitution in Britain is comparable to. The advent of European Parliaments and devolution, coupled with unwritten laws and conventions, present the British constitution as a unique and arguably undefined set of unorthodox and undisciplined disciplines. The accusation that the constitution is indeterminate stems from the fact that there are 170 combined Acts of Parliament, according to HM Stationary Office. 7 Any number of these Acts may be interpreted by the individual as being part of Britain's constitution.
It is therefore apparent that there is no authoritative selection of statutes, conventions and common laws which would comprise the 'constitution. It is also true to say that the constitution is of an indistinct structure. Within UK law there is no device to signal the supremacy of constitutional law over 'ordinary' law, a case echoed by the lack of adherence to conventions by numerous Members of Parliament. Conventions themselves are a characteristic of British constitutionalism, generally not seen elsewhere.
They are also inherently variable. The ideas of 'collective responsibility' and 'ministerial responsibility' add a great deal of freedom and liberty to the British government as a whole, and to specific members of political parties. Take, for example, John Redwood's challenge to Major's government. Under the aforementioned responsibility convention, such a challenge would not have developed. Similarly, Peter Mandelson would have been forced to resign had he taken full ministerial responsibility for his actions concerning his loan.
Perhaps one unique aspect of the British constitution is the ease with which individuals can further bend the rules contained in an already exceedingly flexible rulebook. Unlike the United States, there is no independent constitutional court (the US has its Supreme Court) in which cases involving constitutional legislation can receive appropriate consideration. Another issue to further individualise the British constitution is the devolution of Scotland, Wales and to a certain extent, Northern Ireland. Quite simply, the constitution does not lay down exactly what powers these mini-parliaments have.
If, for example, a large Scottish National Party majority was to be elected to power, intent on provoking rifts with Westminster, any legislation passed by them that was not detrimental to non-Scottish residents of the United Kingdom would be perfectly legal in the eyes of the courts. This is due to a lack of constitutional criteria regulating regulating this type of situation. Westminster would be rendered impotent – action against the Scottish Parliament could be viewed as an insult to Scotland, whereas inaction could be detrimental to the integrity of the United Kingdom as a whole.
Surely any constitution should safeguard against this kind of potentially explosive situation developing? The devolutionary change in constitution is potentially unprotected by national law, indicating that further adaptations are perhaps more than likely. 9 Further differentiation has emerged from reforming the House of Lords, marking a crack down on hereditary peerage, and further introduction of government recommended peers. Prior to this came the joining of the European Union in 1973.
It is arguable that upon joining the European Union, Britain practically inherited a whole new constitution- about as big a change as it is possible to imagine. Bodies such as the European Court of Justice, the European Commission and the Council of Ministers have had a great deal of influence over exactly how Britain is run, as well as over the evolution of the constitution. Parliamentary sovereignty, a cornerstone of the current constitution has been severely undermined. I. Budge notes four main ways in which the European Union has had an influence:
Firstly, the supremacy of the European Court of Justice has taken its toll due to its ability to overrule the decisions of British courts. Secondly, many statutes of have been declared contrary to European law, rendering then effectively illegal. 11 Next, parliament's ability to make legislation is restricted to those areas outside of European law. This practically excludes Britain's parliament from decision-making regarding the lives of all Britons. Finally, the European Communities Act binds all future governments to the above restrictions.
8 In conclusion then, there are too many clear examples of flexibility in the constitution to suggest that it is wholly undifferentiated. Small-scale inconsistencies such as failure to adhere strictly to conventions, as well as huge constitutional changes in the form of Europe and devolution point to an ever modernising and constantly altering constitution in Great Britain. This, however, not necessarily a damaging system. Take the United States' 'Bill of Rights,' for example, which entitles every American to own a firearm.
Even following the Columbine School massacre, the constitution went unaltered, causing widespread condemnation of American law. In a similar predicament following the Dumblain school attack, the British government was able to quickly ban the ownership of firearms, thanks to the lack of a written constitution. The lack of a strict constitution can mean an overly flexible government power, but can also leave enough scope for adjustments to be made where and when necessary, as the differentiated British constitution has shown.