The Salient Features of the Constitution

The salient features of the Constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers.

The Salient Features of the Constitution:-

From the nature of the Constitution flow the following important features :

1. It is Mostly Unwritten:-

The British Constitution, toa large extent, is of an unwritten nature. It is nota pre-arranged pattern according to which the government must be carried on. Nor is it the result of conscious creation. Its sources are several, and the course of its development has been sometimes guided by accident and sometimes by high design.

Being a child of wisdom and a chance, its growth has been piecemeal and gradual, expressing itself in different Charters and Statutes, precedents, usages, and traditions whatever the exigencies of time demanded. Accordingly, there is no single document that can contain the general principles of political governance. In fact, no attempt has ever been made to embody these principles in a documentary form. They remain scattered.

Some of these rules and principles have been reduced to writing and are embodied in the Acts of Parliament. Still, a greater part of sull remains unwritten and is carried in men’s minds as precedents, decisions, habits, and practices. The written elements taken by themselves do not comprise the Constitution, though they have considerably affected it.

2. A Specimen of Development and Continuity:-

The British Constitution has grown like an organism and developed from age to age. It fulfills Sir James Mclntosh’s dictum that constitutions grow instead of being made. It is the product of evolution and the result of slow and steady development and successive accretions spreading over a thousand years.

And all through this period, Britain has never witnessed political upheavals of a revolutionary character. In fact, if they may be described as evolutions, all political revolutions have been of conservative nature. Britain has all through moved along an essentially continuous ous constitutional pathway readjusting her institutions slowly and cautiously to the changing conditions and needs of the country and its people.

The political changes, as Ogg says, have as a rule been so gradual, deference to traditions so habitual, and the disposition to cling to accustomed names and forms even when the spirit has changed, so deep-seated, that the constitutional history of Britain displays a continuity hardly paralleled in any other land.

Lord Morrison thinks that such a peaceful evolution of the British Constitution is more permanent, more satisfactory, and less painful than the violent, bloody revolution. He thinks that his country has been lucky in that respect.

3.Difference between Theory and Practice:-

The gradualness of the constitutional evolution and the English habits of retaining traditional forms, despite radical changes in the position of power, have produced a marked difference in theory and practice. The government in the United Kingdom, in ultimate theory, is an absolute Monarchy, in form, a limited constitutional Mon’ archy, and an actual character, democratic republic.

In theory, or, to be accurate, legally, the United Kingdom’s government is vested in the Monarch. All-State, civil and military officers are appointed and dismissed in Her Majesty’s name. The Ministers are Her Majesty’s Ministers, and they remain in the office during the Royal pleasure.

The Monarch is the source of law and fountain of justice. Her Majesty summons dissolves and prorogues Parliament. No parliamentary election can be held without the Royal writ. Laws made by Parliament are not valid and cannot be enforced without the Royal assent, and if the Monarch so wishes, may veto any law passed by Parliament.

The Monarch is also the Commander in chief of all the British forces during peace and war. War is declared in Her Majesty’s name, peace, and treaties are negotiated and concluded in name and on behalf of the Monarch. Her Majesty’s Stationary Office publishes government documents.

All people in the United Kingdom are the loyal subjects of the Monarch; their national Anthem is:

“God save the Queen”

In short, there is no act of government ch s of attributed to the Monarch’s name per on Her Majesty’s powers, in terms of w, are uncontrolled, unrestricted and absolute.

But all this is in theory. In practice, the Monarch does nothing by doing everything. The Revolution of 1688 finally settled that the King must give way to Parliament as a last resort. Since then, the British Constitution’s whole development has been marked by a steady transfer of powers and prerogatives from the Monarch as a person to the Crown as an institution.

The King has now long ceased to be a directing factor in government, and he virtually performs no official act on his own initiative. If this King were to exercise any of the powers he exercised and the last, and this he can legally do even now, he would be signing the warrant of his own abdication.

The real power rests with the King’s duly constituted Ainisiers, and His Majesty remains only a symbol of authority, or to put it in the language of the British Constitution:

“The King can do no wrong.”

The ministers of Use Monarch are members of Parliament, and they remain in office as long az. Parliament wishes it, but Parliament’s real power rests with the House of Commons, the representative House of the People. The responsibility of the Ministers is to the House of Commons. The Prime Minister and other principal Ministers belong to it.

All this means the House of Commons supremacy and ultimately that cf the people, for the people decide use complexion of the Hote at a general election. It is the verdict of the people which determines the government. No government ¢un remain oblivious of public opinion if it continues in office, control, and direct administration, and maintain support fur the future. Such a government is a government by consent.

Government with us, says Jennings, is the government by opinion, and that Is the only kind of self-government that is possible. Practice thus outruns theory in Britain, and she preserves the most democratic systems of government in the world.

The Webbs used for she sy stern of movement as obtainable in the United Kingdom the purchase a crowned republic. While defending the British monarchy, Lard Morrison succinctly observed, But it takes good counties to run monarchies. It takes good monarchs to be the heeds of States, And may I add that it takes a good Republic to appreciate a good monarch.

4. Sovereignty of Parliament:-

The British Constitution establishes the supremacy of Parliament. It means that Parliament is supreme. It can make and unmake any law, and no court in the realm can question its validity. Parliament’s authority is transcendental and absolute, and it embraces both the enactments of ordinary laws and the most profound changes in the government itself.

There is no judicial review, and no authority can declare that the laws made by Parlament are ultra vires. Even the act power hag became obsolete. The Monarch must signify his assent to all Parliament measures; whether Parliament is really sovereign or not, it is a separate question. So far as law, pure and simple, is concerned, it is.

5. A Flexible Constitution:-

As already pointed out, there is no codified and basic constitutional law having superior sanctity to statutory law. The power to make and amend the constitutional law is vested in Parliament, and no special procedure is required than that attends the enactment of an ordinary bill.

Furthermore, the popular ratification of constitutional amendments, required in countries like Switzerland and Australia like the referendum, is unknown in Britain. The Constitution of the United Kingdom is flexible and responsive.

It carries with !t the advantage of centering public opinion according to the needs of the time. There is a facility of reform in it, adaptability superior to written and more rigid constitutions: James Callaghan, the former Labour Prime. Minister expressed the opinion that constitutions should not be lightly tampered with, but neither should they be rigid and inflexible. They must adjust to meet the rea! Aspirations of a nation.

Parliament’s supremacy ends the ordinary easy method of changing constitutional law has been the subject of some legal controversy. The supremacy of Parliament, it has been asserted, is a legal fiction. It is exercised in the spirit of responsibility, and responsibility in actual practice means the majority’s maintenance in Parliament.

As long as the Party can maintain its majority in Parliament, it can get anything done. But this is really not se How easy it is to make constitutional changes depends on the general nature of the political system prevailing in a country and the people’s attitude towards constitutional amendments. Democratic principles and responsible institutions are Englishmen’s heritage, and Parliament has never changed the Jaw lightly and casually. There are profound psychological checks and voluntary restraints on the exercise of its legal authority, whatever be the extent of the majority the Party in power may command.

Parliament, after all, remarks Ogg, is composed of men who, with few exceptions, are respected members of a well-ordered society, endowed with sense, and alive to their responsibility to safeguard the country’s political heritage.

The hive and work under the restraint of powerful traditions will no longer run riot with the Constitution if it were weighed down with guarantees designed to put it beyond their control. The mandate convention is indicative of the political temperament of the people.

It enjoins that no far-reaching changes in the governmental system should be made until the voters have had a chance to express their opinion upon the proposals at a general election. Asquith’s Liberal Government went to the country with the scheme of Second Chamber reform.

In 1923, Stanley Baldwin appealed to the electorate on the issue of tariffs. In 1931, a general election was held to elicit the people’s support for the National Govemment under Ramsay MacDonald. The Labour Party in 1945 fought the general election on the issues of nationalization and granting self-government to India and other subject countries. Similarly, in the election of 1964, the Labour Party put before the electorate its program of re-nationalization.

Although the Party secured a precarious majority, Harold Wilson told the people immediately after forming the government. Having been charged with the duties of the Government, we intend to carry out those duties. Over the whole field of Government, there will be many changes which you have given us the mandate to carry out.

We intend to fulfill that mandate. Legally, therefore, Britain’s constitution is undeniably the most flexible in the world, but actually, it is considerably less fluid than might be inferred from what the writers say. The Constitution’s flexibility does not depend wholly, or even largely, upon the simplicity of its amending process.

6. A Unitary Constitution:-

The British Constitution is unitary and not like that of the United States of America or India, federal; there is, of course, devolution, but all authority flows from the Central Government centered in London. As they exist in Britain, the local areas derive their powers from the Acts of Parliament, which may be enlarged or restricted at its will. Parliament is Constitutionally supreme, and the local government machine is merely an agent of the Central Government.

The essence of a federation, on the other hand, is union and not unity, and the powers and jurisdiction exercised by the units, which compose a federation, are original, clearly demarcated, and are derived from the constitution. Neither the Central Government nor governments of the federating units can encroach upon each other’s sphere.

If any change desires to be brought about, it must be done by amending the constitution and the success of the amendment prescribed therein. This establishes the supremacy of the constitution. It means that a constitution maintains the distribution of powers. Amending authority which is superior to both central and local governments.

In Britain, Parliament is supreme, and the local areas are subordinate units with such powers as it chooses to bestow. If it so wished, it can abolish the whole complex local government structure by a simple enactment. The existence of a unitary form of government is one reason Britain can manage without a written constitution. A written and rigid constitution is the pre-requisites of a federal polity.

If the devolution referendum in Scotland and Waics had been accepted, it would have moved the United Kingdom away from one highly centralized State that has characterized the British system over the past 250 years. The proposal envisaged to set up separate Assemblies in those areas with specified powers.

7. A Parliamentary Government:-

The British Constitution provides fora Parliamentary form of government as distinct from the Presidential type of government. The King, who is a legal sovereign, has been deprived of all his powers and authority. The real functionaries are the Ministers who belong to the majority party in Parliament, and they remain in office so long as they can retain their confidence.

The Ministers are both the executive heads and members of Parliament, and they co-ordinate the Legislative and Executive departments of government. The Cabinet in Britain, as Bagehot defines it, is a hyphen that joins, the buckle that binds the executive and legislative departments together. There can be no disagreement between the Executive and Legislature.

They work in agreement, and the dangers involved in a deadlock between the law-making, tax-granting authority, and the Executive are absent. If ever the House of Commons votes against the Executive and defeats its policy or passes legislation that has not favor the Cabinet, one of the two things would happen.

The Cabinet must either resign and enable the Opposition to form a government. It should advise the King to dissolve Parliament and order new elections, thereby allowing the electorate to approve or disapprove of the Cabinet’s action. There can be no continued conflict of policy between the Executive and the Legislature as it may happen in the United States, where there is a separation between the Executive and Legislative departments.

The right to govern in Britain, observes Greaves, flows through the legislature to the Cabinet is not separately conferred on a popularly elected Chief Executive and in a popularly elected Parliament, the right is not capable therefore of conflicting interpretation by two bodies having an equal moral claim to speak for the public.

The risks of conflict or inanition resulting from such a separation of power are attested by wide experience, whether it be the Weimar Constitution of Germany, the federal Constitution of America, or the 1848 Constitution of France.

8. Two-Party System:-

Parliamentary government means party government as it provides the machinery to secure a stable government under a unified command of the politically homogeneous and disciplined leaders. The government members rise and fall in unison, and they are individually and collectively responsible for the policy that the Cabinet initiates and carry out.

Since a Parliamentary government is a party government, without political parties, a Parliamentary government is impossible. Such a government system, which combines responsibility with representation, functions best when two parties form the Government and the other forming the Opposition.

Twopasty system enables the elector’s views to have coherent expression, and Britain provides a typical example of a two-party system. It originated in the seventeenth century, and for two hundred years thereafter, only two parties functioned.

The emergence of the Labour Party as a major political force in 1921 brought three es in the political field. With the collapse of the Liberal Party, two parties and the government were situated between the Conservatives and the Labour. There was a split in the Labour Party in 1981, and a Social Democratic Party came into existence.

The Social Democrats wm alliance with the Liberals gave an impressive performance in the early stages of their emergence. Still, they were not able to make a significant dent in the two major parties.

The alliance was short-lived, and the Liberals are at present unrepresented in the House of Commons. Many prominent Social Democrats, too, have shifted their loyalty to their parent Labour Party. In fact, the British Constitution has grown and evolved under the two-party system, and its working tends to maintain and perpetuate it.

9. The Rule of Law and Civil Liberties:-

One of the fundamental principles of the British Constitution is the Rule of Law. It is based on the Common Law of the land and is the product of centuries of the people’s struggle to recognize their inherent rights and privileges.

In Britain, unlike the United States of America, or the Republic of India, the Constitution does not confer specific rights on citizens. Nor is there any Parliamentary Act which lays down the Fundamental Rights of the people. Yet there is maximum liberty in Britain and, according to Dicey, is due to the existence of the Rule of Law.

The Rule of Law has never been enacted as a Statute. It is implicit in the various Acts of Parliament, judicial decisions, and in the Common Law. According to Lord Hewart, the Rule of Law means supremacy or dominance of law, os distinguished from mere arbitrariness, or some alternative mode, which is not law, of determining or disposing of individual rights.

It is sufficient for the present to say that when powers of government are exercised according to detailed and binding rules and not arbitrarily, then the government’s subjects live under the Rule of Law.

Such life conditions can be possible only when there is equality of all before the law, its supremacy, uniformity, and universality. The citizens, the courts, the administrative officials are all subject to it.

In other words, under the Rule of Law, obligations may not be imposed by the State, nor property interfered with, nor personal liberty curtailed except following the accepted principles of law and through the action of legally competent authorities.

The courts recognize these principles, and as a result, the judiciary is the unfailing guardian of the liberties of the people in Britain. However, there is no Charter of nights to guarantee them.

The sovereignty of Parliament and the Rule of Law are closely connected. By its sovereign power, Parliament can curtail or suspend the people’s liberties and set aside the Rule of Law itself. Parliament has very often done it but always did it at times of national emergency.

Drastic restrictions were imposed upon commonty recognized rights of the people during World War I. In 1934 and 1936, the Incitement to Disaffection Act and Public Order Act were passed, which imposed stringent restrictions on speech, assembly, and press rights.

Throughout World War II, drastic restraints were imposed under the Emergency Powers (Defence) Act, 1939. But traditions of the country and political temperament of the people do not tolerate such infringement of their liberties when conditions of national emergency o« danger are not prevailing.

There is a sense in which Parliament itself is subject to the Rule of Law. It cannot, and in fact, it does not, make laws that unnecessarily encroach upon the people’s liberties. Laws in Britain are passed to promote liberty and not to restrict liberty.

Freedom of speech is as truly a part of the British way of life as ministers’ responsibility. Neither rests upon written law; neither would be observed more consistently if it did so.

10. Hereditary Character:-

Another especially distinctive feature of the British Constitution os the recognition given to the hereditary principle, which has been, for so long, discarded by the great majority of other countries. Monarchy rests on the hereditary principle, and the House of Lords is primarily composed of hereditary peers.

Neither the King nor the House of Lords indeed plays an effective role in the country’s political set-up. Yet, their continuance appears hardly reconcilable with the democratic ideals which Englishmen cherish so fondly.

And still, Englishmen had never been in the mood to abolish these historic institutions. Attlee observed that, despite the maintenance of monarchical and oligarchical elements, the British system is the best example of democracy, especially parliamentary democracy.

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