Classification of Constitution. When looking for the salient characteristics of the constitution, it is helpful to bear in mind the range of possible classifications which can be applied to any constitution. Professor KC Wheare identifies the following classifications (1966, Chapter 1):
- written and unwritten;
- rigid and flexible;
- supreme and subordinate;
- federal and unitary;
- separated powers and fused powers; and republican and monarchical.
Written and Unwritten Constitutions:-
A written constitution is one contained within a single document or a series of documents, with or without amendments, defining the basic rules of the state. The origins of written constitutions lie in the American War of Independence (1775-83) and French Revolution (1789). More recent written constitutions derive from the grant or devolution of legislative power from previously imperial powers to former colonies and dominions, whether secured as a result of peaceful settlement or violent revolution.
The feature which characterizes all states with a written constitution is that there has been clear historical break with a previously pertaining constitutional arrangement, thus providing the opportunity for a fresh constitutional start. As Wheare explains:
If we investigate the origins of modern constitutions, we find that, practically without exception, they were drawn up and adopted because people wished to make a fresh start, so far as the statement of their system of government was concerned. The circumstances in which a break with the past and the need for a fresh start come about vary from country to country, but in almost every case in modern times, countries have a constitution for the very simple and elementary reason that they wanted, for some reason, to begin again. This has been the practice certainly since 1787 when the American constitution was drafted, and as the years passed, no doubt imitation and the force of example have led all countries to think it necessary to have a constitution. [1966, p 4]
The absence of any such break in continuity in British history, from 1066 to the current time, more than any other factor, explains the mainly unwritten nature of the United Kingdom’s constitution.
The characterization of constitutions into written and unwritten is, however, too limited, for such classification tells neither the whole constitutional story nor necessarily makes the constitution accessible to those seeking to understand it. A written constitution will provide the basic rules, but, for an understanding of the whole constitutional picture, it is also necessary to examine subsequent interpretations of the constitution contained in case law and the political practices which reveal the actual operation of the constitution.
At the heart of this matter lies one simple fact all constitutions howsoever defined and categorized are dynamic organisms. They are dependent for much of their meaning and relevance on the societal framework which surrounds them. Nowhere is this more apparent than in relation to individual rights and liberties.
The vast majority of states have adopted both written constitutions and Bills of Rights stipulating the inviolable rights of citizens nevertheless, the political reality for many citizens rights around the world is very different from the formally drafted constitution. Irrespective of whether or not a state has a written constitution and a Bill of Rights, it must be recognized that the actual protection of individual rights, as with so much of the constitution, is explained not solely by reference to written rules.
Regardless of the form in which rights are protected, in any society, it will be the democratic political process, political practice and norms of acceptable governmental conduct that, while not having the force of law, provide constitutional standards which determine the respect accorded to individual rights.
These constitutional features also establish standards against which the probity of official conduct may be measured. It is for this reason that a true understanding of constitutions and the concept of constitutionalism requires a deeper understanding than that provided for by an analysis of the formal written rules.
Rigid and Flexible Constitutions:-
This classification rests primarily on the question whether or not constitutions can be amended with ease. The framers of a written constitution, endeavoring to provide a comprehensive legal framework for the state, will naturally seek to protect its constitutional provisions from subsequent repeal or amendment. Towards this end, all or many of the rules will be entrenched, that is to say the constitution will stipulate stringent procedures to be followed in any attempt to amend the provision in question.
As will be seen later, entrenchment may take several forms, but its central characteristic is that it either prevents, or makes difficult, amendment or repeal. By way of example, the federal Commonwealth of Australia Constitution Act of 1900 specifies the procedure to be adopted for its own alteration. An amending Bill must pass through at least one House of Parliament by a specified majority and the proposed amendment must be endorsed in a referendum which approves the measure by an overall majority in at least four of the six states.
Between 1900 and 1990, 42 proposals for constitutional amendment had been put forward of these, only eight were approved by a majority of electors nationally and a majority of electors in a majority of states. In this regard, it has been observed that constitutionally speaking, Australia is a frozen continent.
As a further example, under the United States constitution, constitutional amendments may be proposed either by a two-thirds majority of both Houses of Congress or, following a request by the legislatures of two-thirds of the States, by the convention summoned by Congress. To be accepted, the proposed amendments must then be approved by the legislatures of three-quarters of the states, or by conventions in three-quarters of the states. Between 1813 and 1913, only three amendments had been accepted; between 1913 and 1933 six amendments; and by 1951, only one further amendment.
The United Kingdom’s constitution, by comparison with the constitutions of the United States and Australia, represents the height of flexibility. Under the doctrine of parliamentary sovereignty examined in Chapter 6, parliament is the supreme law making body and can pass any law, by a simple majority vote in parliament, on any subject matter whatsoever. Moreover, no court may hold an Act of Parliament to be void.
Note for now, therefore, that under the United Kingdom’s constitution, no legal constraints can under the traditional doctrine of sovereignty fetter parliament’s powers of particular importance in this regard is the fact that no parliament may lay down irreversible rules regulating future legislative procedures which must be followed. The constitutional importance of this lies in flexibility. It has been argued, controversially, and continues to be argued, that the legislative supremacy of parliament is constrained by various constitutional devices and acts of constitutional importance. However, it is significant that none of these challenges has yet succeeded in limiting parliament’s theoretical power.
The issue of flexibility, however, should not be exaggerated. That there are no legal restraints on what parliament does, does not mean that there are no non-legal constraints. In practical terms, such extra-legal constraints may be as important as legal controls. By way of illustration of the distinction between legal and non-legal constraints, Sir Ivor Jennings offers the example of parliament passing an Act which bans smoking in the streets of Paris.
As he states, there is nothing in the constitution which prevents parliament from doing precisely that, If it enacts that smoking in the streets of Paris is an offense, then it is an offense (1959b, p 170). The relevant Act so passed would be valid and recognized by the English courts. However, the Act would be totally ineffective and ignored by the courts and everyone else in France. Equally, as Jennings states, if Parliament enacted that all men should be women, they would be women so far as the law is concerned.
Sir Leslie Stephens, writing in the nineteenth century, asks what restrains parliament from passing an Act providing that all blue-eyed babies be put to death? The response to this question is that in legal theoretical terms, of course parliament could pass such 4 law, but in political terms, it neither could nor would do so, for ultimately, parliament 1s dependent upon the support of the electorate.
Supreme and Subordinate Constitutions:-
This constitutional category overlaps in many respects, although not totally, with the classification into federal and unitary states. A supreme constitution refers to a state in which the legislative powers of the governing body are unlimited. Conversely, a subordinate constitution is one whose powers are limited by some higher authority.
Federal and Unitary Constitutions:-
In many states, for example, the United States of America, Canada, Australia and Malaysia, there exists a division of powers between central government and the individual states or provinces which make up the federation. The powers divided between the federal government and states or provinces will be clearly set down in the constituent document. Some powers will be reserved exclusively to the federal government (most notably, such matters as defense and state security); some powers will be allocated exclusively to the regional government (such as planning and the raising of local taxation); and others will be held on the basis of partnership, powers being given to each level of government with overriding power, perhaps, reserved for central government.
The common feature of all federal states is the sharing of power between center and region each having an area of exclusive power, other powers being shared on some defined basis. Equally common to all federations is the idea that the written constitution is sovereign over government and legislature and that their respective powers are not only defined by the constitution but are also controlled by the constitution, which will be interpreted and upheld by a Supreme Court.
The constitution of the United Kingdom presents a very different arrangement from that outlined above. The state is unitary and there is no defining written constitution controlling the powers of central government or of the United Kingdom Parliament. Instead of a written constitution, there exists a sovereign legislative body, which represents the ultimate law making power in the state.
Power is given to the Northern Ireland, Scottish and Welsh legislatures and to local government, under Acts of the United Kingdom Parliament, to fulfill defined functions such as the provision of services and raising of local revenue to finance such services. However, no power is given to the regions or to local government other than that decreed by parliament. Regional parliaments and assemblies and local authorities are entirely creatures of Acts of Parliament, and any power given can subsequently subject only to political acceptability to the electorate be withdrawn.
An illustration of this point can be seen in relation to the statutory abolition of the Greater London Council and other Metropolitan Borough Councils in 1985, under the Local Government Act of that year. An example on a larger scale can be seen in the grant of limited legislative authority to the Northern Ireland Assembly under the Government of Ireland Act 1920.
The law making power given in 1920 was later revoked by the United Kingdom Parliament by the Northern Ireland Constitution Act 1973. In 1998, however, devolution of power was again on the constitutional agenda. The Northern Ireland Act 1998, Scotland Act 1998 and Government of Wales Act 1998 each involve a decentralization of power, although ultimate sovereign power remains with the Westminster Parliament.
Separated Powers and Fused Powers:-
The separation of powers is a fundamental constitutional concept which will be discussed more fully in Chapter 5. With respect to the classification of constitutions, the concept here requires outline consideration. The doctrine is of great antiquity, dating back at least to Aristotle. John Locke, Viscount Bolingbroke and Baron Montesquieu gave further expression to the idea.
The essence of the doctrine is that the powers vested in the principal institutions of the state legislature, executive and judiciary should not be concentrated in the hands of any one institution. The object of such separation is to provide checks on the exercise of power by each institution and to prevent the potential for tyranny which might otherwise exist.
A constitution with clearly defined boundaries to power, and provisions restraining one institution from exercising the power of another, is one in conformity with the doctrine of separation of powers. This arrangement is most readily achievable under a written constitution, although it is arguable whether, under any constitution, a pure separation of powers is possible, or indeed desirable, a point which will be returned to later.
At the other end of the spectrum of constitutional arrangements from a nearly pure separation of powers is a totalitarian state or a purely monarchical state. Under such a constitution will be found a single figure, or single body, possessed with the sole power to propose and enact law, to administer the state, and both to apply and to adjudicate upon the law.
Under the largely unwritten constitution of the United Kingdom, the separation of powers is difficult to ascertain and evaluate. There is undeniably a distinct legislative body, executive, and judiciary, each exercising differing powers. On further examination, however, it will be found that, in practice, there are so many exceptions to the pure doctrine that the significance of separation of powers is called into question. Suffice to say at this introductory stage that it is a doctrine which is respected under the constitution, despite many apparent anomalies.
Republican and Monarchical Constitutions:-
A republic is a state having as its figurehead a (usually) democratically elected President, answerable to the electorate and to the constitution. Presidential office is both a symbol of statehood and the repository of many powers. In the name of the state, the President will enter into treaties, make declarations of war, and represent the state on formal international and domestic occasions.
Additionally, as with the President of the United States of America, the President has responsibility for proposing legislation to give effect to the political programme which gave him the mandate of the people. The President, however, has no formal power to initiate legislation, and it is the Congress of the United States which will ultimately determine the acceptability of legislative proposals. It may well be that the elected President is from a different political party than that which dominates Congress.
When that political situation pertains, the prospect of successful implementation of Presidential election promises is weakened, and although the President has a veto power over legislation passed by Congress, that veto can be overridden by Congress voting with a two-thirds majority.
Looking at the United Kingdom as an example of a sophisticated Western democracy based on constitutional monarchy, the position of the head of state is very different. Queen Elizabeth II is the head of state, and all acts of government are undertaken in the name of the Crown.
This statement implies that great power is accorded to the Queen. In reality, however, and with the exception of important residual powers, this is not the case. As with the President of the United States of America, the Queen is the figurehead the symbol of nationhood on a domestic and international level. The Crown also represents the continuity of the state.
From an historical constitutional viewpoint, it matters little which leader of which political party at any one time occupies the office of Prime Minister, or whether he or she is a Labour or Conservative Prime Minister, for he or she will be exercising all powers in the Queen’s name. Unlike the position of the head of state under the United States constitution, however, the Queen is, by definition, unelected and unaccountable to the electorate in any democratic sense. The Crown enjoys enormous legal theoretical power but little practical power, save in exceptional circumstances.
The legal powers held by the Crown are, for the most part, exercised in her name by the elected government of the day. The rules which restrict the monarch’s powers are for the most part non-legal. The restrictions comprise the all-important conventional rules of constitutional practice which regulate so much of the United Kingdom’s constitution. Thus, for example, the Crown has the legal power to withhold royal assent from Bills passed by parliament but, by convention, this assent will never be withheld (and has not been withheld since 1708) unless so advised by the government.
In addition to representing the symbolic figurehead, the role of the Crown may be said to be protective. The Queen, it has been said, has the power to warn and advise the Prime Minister of the day. Queen Elizabeth II, since her accession in 1952, has seen many Prime Ministers, both Conservative and Labour, enter and leave office. Throughout that 56 year reign, the Queen has quietly influenced government, and garnered vast experience in domestic, international and particularly Commonwealth affairs.
That experience represents a wealth of knowledge at the disposal of the government in power. While the role of the monarchy is a matter for contemporary debate, the continuity and longevity of monarchy remains a distinguishing feature of the United Kingdom’s constitution.
From the discussion of classification above, some conclusions can now be reached about the characteristics of the United Kingdom’s constitution. In summary, it can be said that it:
- Is largely unwritten in character.
- Is Flexible in Nature.
- Is supreme.
- Is formally unitary in structure, but with powers devolved to Northern Ireland Scotland and Wales and to local government.
- Exhibits mainly but not completely separated powers; and
- Is monarchical.
Each of these features will become clearer as we examine the constitution in more detail.