the British constitution

A constitution is a set of laws on how a country is governed. The British Constitution is unwritten, unlike the constitution in America or the proposed European Constitution, and as such, is referred to as an uncodified constitution in the sense that there is no single document that can be classed as Britain's constitution. The British Constitution can be found in a variety of documents. Supporters of our constitution believe that the current way allows for flexibility and change to occur without too many problems. Those who want a written constitution believe that it should be codified so that the public as a whole has access to it – as opposed to just constitutional experts who know where to look and how to interpret it.

Amendments to Britain’s unwritten constitution are made the same way – by a simply majority support in both Houses of Parliament to be followed by the Royal Assent.

The House of Commons is part of the legislative process of British Politics. The House of Commons currently has 647 MP's sitting in it and the Commons is seen as a cradle of democracy where even a government with a huge parliamentary majority can see that majority dwindle if party members vote against the government - as the 2004 tuition fee issue demonstrated. With the exception of by-elections, every MP in the Commons has to go before their constituents every 5 years. The principle function of the Commons is to scutinise government bills and vote on them - therefore having a vital input in to how laws are made in this country.

Some would argue that one of the most important functions of the House of Commons is that it is the most important political forum in the country where, when in session, it can exchange views between spokes people for the Government and the opposition.

This idea of a political forum in theory is taken further in reality in that following a General Election, the choice of Government is a matter for the Commons in the senses that:

q the leader of the party with the greatest number of MPs (not necessarily the greatest number of votes) is expected to become Prime Minister.

q and that Prime Minister then chooses the political heads of the Government (the Cabinet and Ministers) from existing Commons Members of Parliament (though there are also about 25 out of about 120 chosen from the House of Lords). However, the most important Cabinet positions are given to serving MP’s from the House of Commons.

This picture of the Commons as a direct broker of Governments is probably exaggerated. The choice is now largely determined by the electorate, so that the Government is really settled on election night and not a week or so later when Parliament actually assembles - unless perhaps no party wins an overall majority which has not occurred in British politics in modern times. The conflicting interpretations being presented here have been categorised as two different models:

- the Westminster model - power flows from the electorate to Parliament which chooses and controls the executive;

- or the Whitehall model - the electorate chooses the Government and Parliament is there to confirm that choice as an electoral college and then to serve Government and ensure it works effectively in accordance with its mandate. The role of MPs is on this view to facilitate and improve a government's programme by exploring and testing them but ultimately approving them. In short, Parliament is a critical rather than governmental body.

This prime role is bolstered by the televising of Parliamentary proceedings which began in November 1989. However, television coverage is rather stunted and tends to be confined to short excerpts from Question Time. Major debates are, however, often broadcast by radio.

Legislation:

Parliament is now virtually the only source of legislation. The main, but very limited, exception is legislation under the prerogative e.g. in regard to civil servants at GCHQ. This power to legislate is especially important in so far as Article 4 goes on to provide that Acts of Parliament alone (and not the prerogative as recognised in earlier common law cases) can authorise the levying of taxes. Together, these Articles are vital in ensuring that the executive accounts to Parliament, and both give Parliament some leverage over the Government. The Government constantly needs grants of taxation (the annual budget is about £250billion). Because of the effect of the Parliament Acts 1911-49 and convention, the House of Common is of far greater importance in these matters than the House of Lords.

But, as with the first function, one can exaggerate the power of Parliament. In reality, Parliament largely reacts to legislation initiated by the Government. It does not initiate its own legislative programme reflecting its own policies, and few Acts are passed which are not sponsored (i.e. put forward) by Government Ministers. As before, our constitution is said to enshrine the idea of Parliamentary Government. This does not mean that Parliament governs but that the Government must work through Parliament.

Scrutiny of policies and administration:

The Commons next has the task of scrutinising the Government's policies and administration of its policies. Once again, Parliament has few policies of its own and certainly no coherent overall programme which rivals that of the Government - its functions are mainly to examine and react to the Government's policies and actions. The alternative to the Government is the Official Opposition not Parliament per se
"Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government ." J S Mills

Parliament is expected to sustain, scrutinise and influence rather than block Government. After all, most MPs are elected on the basis that they support the Government's policies. Parliament thus provides legitimacy for Government in the sense that its approval can be seen as representing the assent of the electorate.

The UK has a representative democracy rather than a participatory democracy. MPs, once elected, are not then the direct agents of the electorate but are allowed a wide discretion to represent their electorate as they think fit. The electorate has no further say, whether by referendum or otherwise, but merely endorses at election time – possibly as far apart as every five years - one candidate or another. This position has been changed to some extent by an increase in party activism in the Labour Party/government and more generally by a post-1945 growth in pressure groups.

Specific redress:

The final task of the Commons is the redress of specific grievances. All MPs, even the Prime Minster, are elected by a specific locality (constituency) in which they are the sole representative and link with Parliament. It follows that they are seen as having constituency interests and responsibilities. In other words, they ask questions or raise matters in debate concerning the problems of their area and constituents. This work is often done informally and behind the scenes by meetings in the constituency and by letters to, and discussion with, ministers or civil servants. MPs receive millions of letters a year primarily from their constituents (as many as 50%). The majority of these letters are concerned with individual matters - council housing, welfare benefits and so on. The input is said to be about 40,000 letters per year per MP and the output around 30,000, so this work is an important part of the work-load as well as providing an important source of information. Its political impact may be limited nationally but is locally significant. The MP may meet 10% of constituents, and though it has been reckoned that the best efforts are worth only about 1500 votes, this number could affect the result in about 20 constituencies.

A report by the Fabian Society in 1998 suggests that there are far too many MPs and that they engage in far too much constituency work which they are ill-equipped to deal with. It recommends that the number of MPs be reduced by 200 and that a parliamentary official be appointed to look into individual grievances.

Another aspect of the redress of grievances is private legislation i.e. legislation sponsored by private individuals. This is now relatively rare, primarily as parliamentary time does not allow for it. Along similar lines is local legislation, i.e. legislation sponsored by local authorities and applying only to their own area e.g. West Yorkshire Act 1980. Again this is now rare as time does not allow for it.
The Commons finally fulfils this role by receiving public petitions which are then sent to the relevant Minister who is expected to print a reply or they may even be debated if urgent. The petition is an increasingly popular way of raising the political profile of an issue. It is also a way of allowing a small degree of participation by the electorate in the business of Parliament.

n Great Britain laws are made in Parliament at Westminster. Its law-making status makes Parliament Great Britain's main legislative body - though the Welsh Assembly and the Scottish Parliament do have legislative capabilities. However, it is difficult to estimate what the impact of law making by the European Union will be in future years. To date, most EU laws that have been imposed on the UK (and other members off the EU) have concerned environmental issues. Some political parties in the UK, such as the UK Independence Party, fear that the EU will broaden its net with regards to areas where it will impose legislation. Time will tell.

In the UK there are five types of legislation considered by Parliament. These are:

Government Bills

Private Members’ Bill

Private Bills

Hybrid Bills

Statutory Instruments

Government Bills embody government policy and a Minister introduces them. The bulk of Parliament’s time is taken up with these types of bills. As the current government has such a large parliamentary majority, it is almost certain that all Government Bills will be passed into law (though some may be amended along the way).

Individual MP’s from any political party (or a peer) can introduce a Private Members Bill. These rarely have any chance of becoming law as too much of Parliament’s time is taken up with Government bills. As a result of this, Parliament gets little chance to discuss Private Members Bills, let alone vote on them.

Private Bills are promoted by organisations that want specific powers. This type of bill is introduced following a petition to Parliament by the organisation that wants that bill to become law. These usually suffer the same fate as Private Members Bills – timed out as a result of Parliament concentrating on government bills.

Hybrid Bills are very rare. The government or backbenchers introduce them. They are a mixture of private and public bills and come about if someone or some people are going to be treated differently to others.

Statutory Instruments are rules made under powers contained in an Act of Parliament. Because they come from primary legislation, they are sometimes known as secondary legislation.

The idea for a new law can come from a variety of sources:

1) An election manifesto promise;
2) A government department after an election has been won;
3) The influence of pressure groups;
4) The influence of experts within their field;
5) In response to an EU directive.

Each parliamentary year, the Cabinet has to decide on what it wishes to do regarding legislation that year. As such it has to prioritise what it wants – though it has to be wary of promises made to the public at large. A parliamentary session does not last for one calendar year. With extended recesses, Parliament actually sits for a lot less than twelve months. Each parliamentary year, the government has time for perhaps no more than twenty major bills. As these absorb the bulk of Parliament’s time, there is little time left for Private Members’ Bills etc.

Legislation in Parliament is driven by what is said in the Queen’s Speech that traditionally opens Parliament in November. Once a decision has been taken by the government to introduce whatever form of legislation it wants, a potentially convoluted process takes place before the bill becomes law.

The first process is one of formulation. This is actually deciding what is going to be contained in that bill. Both ministers and civil servants acting on behalf of the government do this process. In fact, in many instances, the details of a bill are left to experts within a civil service department who are there to work for the government. Parliamentary Counsels (government lawyers) are responsible for actually drafting the bill.

Before words are put to paper, a period of consultation occurs. Either a ‘Green’ Paper or a ‘White’ Paper is published and members of the public are invited to comment on future bills using these papers as a basis for discussion and contact with their MP if they feel that this is necessary.

What is the difference between a White and a Green Paper?

A Green Paper is an exploratory one that is designed to stimulate discussion amongst a wide audience. A White Paper is a statement of where the government wishes to go in the sense that it is fairly definite in what it thinks is required. If the issue is very much an open one, a Green Paper usually comes before a White Paper to allow for an expansive debate on the issue. One single issue can have both a Green and a White Paper released on it so that the public can have an insight into what the government wants but also has access to a document that presents an across-the-board selection of arguments.

If the government want a bill to pass, it is in their interest to ensure that all the areas that need to be analysed have been. Therefore, extensive consultations are carried out to ensure that what the government wants, comes into being. For a bill that is deemed by the government to be important, many groups are consulted: experts, Treasury officials if there are major monetary implications, trade union leaders especially, if there are employment issues at stake, MP’s, trade organisations etc.

To allow for full public consultation, a draft bill might be published to allow the public at large (and the Parliamentary opposition!) to see what the effective final act might be. Prior to 1997, releasing a bill in draft form was quite rare. However, since 1997, this has become more and more common. In one sense, this process is seen as the government being more responsive to the people and giving the people the opportunity of making the government responsible to them rather than the other way round.

Only after a bill has been drafted and agreed on by ministers, does it go to the House of Commons for its first reading.

After so much preparatory work, the bill that goes before the House of Commons cannot be considered a mere ‘rough draft’. It is a lot more than this. Even at this seemingly early stage of its ‘life’, the bill is what the government wants to become law. If a government has a large parliamentary majority in the House, a bill, even on its first reading, frequently passes with relative ease (assuming that it is not a controversial one) and with few, in any, amendments to it.

The First Reading is the first time that a bill goes before the House itself. The First Reading is, in fact, when a bill is introduced after which the bill is then put into print. Though the title "First Reading" conjures up the image of a big parliamentary event, it is really the opposite in that nothing actually happens other than the fact a bill goes before Parliament. As the bill is not in a printed format at this time, MP’s can do little about assessing content etc. From this purely formal introduction, the bill then gets a Second Reading.

By the time of the Second Reading, MP’s have access to the detail of the bill and it is in the Second Reading that MP’s have the chance for a wide-ranging discussion on a bill’s merits or otherwise. Usually, though not exclusively, a parliamentary day is given over to a Second Reading, which usually corresponds to about six hours of discussion. More controversial bills have been known to be given three days of parliamentary time – about eighteen hours.

Traditionally, a government minister opens a Second Reading while his/her opposite number on the Opposition Benches replies. From here, backbench MP’s join in the debate. When it comes to closing the Second Reading, the minister concerned does this. The debate in the House in controlled by either the Speaker of the Deputy Speaker. Controversial bills may proceed to a vote at a Second Reading. It is almost certain that a government with a decent Parliamentary majority will win this as the bill represents what that government wants and the party whips would ensure that a smooth vote takes place. From the Second Reading, the bill moves onto to the Committee Stage.

The Committee Stage is probably the most thorough examination of the bill. This examination is done by a Standing Committee that is made up of 18 to 25 MP’s. The number per political party is determined by each party’s strength in the House of Commons. With a large parliamentary majority, the Labour government has a sound representation on such committees. The Minister responsible for the bill is on the committee along with junior ministers. The opposition minister is also on the committee along with his/her junior ministers. There are two Whips on the committee – one from the government and one that represents the opposition. The other places on the committee are made up of MP’s from both sides of the House. They are considered to have an expertise in the matter being discussed and can bring such expertise to the detailed discussion that occurs at the Committee Stage.

The number of times a Standing Committee meets is determined by the importance of the bill. A major government bill may require a number of meetings (between 10 and 12 is usual) over a six-week period. However, controversial bills have taken up more time than this. A Standing Committee is chaired by a senior backbencher from either side of the House. His/her task is to remain impartial throughout the committee stage. Bills that are likely to take time due to their controversial nature may have two chairs appointed – one from the government and one from the Opposition.

What does a Standing Committee do?
A Standing Committee assesses and approves each clause of a bill. It does not discuss the overall purpose of a bill. Each member of a Standing Committee is allowed to propose an amendment to clauses in the bill.

The government does not have to accept amendments, and despite the input of a Standing Committee, a bill, after the Committee Stage may be the same as at the time of the Second Reading. Governments with a large parliamentary majority and with a disciplined Whip structure, can all but guarantee that its bill will be voted for. However, a government may well accept amendments to a bill simply because a Standing Committee may have suggested an improvement that the government simply did not ‘see’. The power to do this rests with the government and not with the Standing Committee. Some have argued that this government power makes a Standing Committee and its work redundant.

However, this procedure is a fundamental part of the parliamentary set-up and is seen as part of the whole democratic structure of Parliament and an insurance against governments doing what they want to do. Standing Committees act as a reservoir of expertise than can be used constructively by a government – if only that it can discuss in clinical detail a bill and suggest changes that, according to the Committee, will enhance the bill.

A government might accept minor changes to a bill. Major changes are a different matter. These might only be forced on a government if sufficient government backbenchers combine with the Opposition. In this scenario, the government might be faced with the embarrassment of its bill being defeated in the House. This would clearly undermine its authority. With the current huge parliamentary majority of the Blair government in 2003, this is extremely unlikely to occur.

On rare occasions, the Standing Committee stage might be expanded. This is done when this examination of a bill is taken ‘on the floor’. This is when a Committee of the Whole House is convened to give all MP’s the opportunity to express their views on a bill. This happens rarely as it is a time-consuming process. Major finance bill and proposed constitutional changes have led to Committees of the Whole House being instigated in the past.

The whole committee stage is meant to be a thorough examination of a bill and it is the longest part of the process. Once it has ended, the process moves on to the Report Stage.

This stage is also known as ‘The Consideration’. This is a detailed examination of the bill by all MP’s, including amendments if they have been suggested at the Committee stage. New amendments can be introduced at this stage. This is usually done by the government in response to amendments suggested at the Committee stage. By doing this, the government can claim to have listened to the proposed amendments to a bill. It can also claim to still be in charge of the bill as it has proposed the amendments! The Report Stage can last from 30 minutes to several days. From here, the bill returns for its Third Reading.

The Third Reading is the final part of the debate regarding the bill within the House of Commons. MP’s discuss the overall content of the amended bill. From here the bill automatically moves onto the House of Lords.

Under its current structure, the Lords operate in broadly the same way as the House of Commons. The First Reading in the Lords is, as in the Commons, a formal introduction. A major debate on the bill occurs at the Second Reading. The Lords continue to follow the pattern of the Commons with a Committee Stage, followed by the Report Stage and then a concluding Third Reading.

However, though there are many similarities in the way both Houses proceed with regards to the way bills are passed, there are also a number of important differences.
The Lords Committee Stage is usually held on the floor of the Lords itself. In this way, any peer may put forward amendments and comment about the bill. Amendments can be made in the Lords at the Third Reading. This is usually done to clarify any amendments the government has agreed to make to its bill.

If the bill is voted for in the Lords, it is immediately sent for Royal Assent. However, if any amendments have been made in the Lords, the bill is returned to the Commons which debates each amendment the Lords have made. The Commons can:
Accept the amendment Amend the Lords amendment Completely replace a Lords amendment with one of its own Reject a Lords amendment.

If any of the last three are done in the Commons, the bill returns to the Lords with an explanation as to why the government has taken the course of action it has. This is a ‘statement of reasons’. The Lords can accept this and pass the bill. However, it can also reject the ‘statement of reasons’. When this happens, the amendments concerned (and therefore the bill itself) goes to and from the Commons and Lords until an acceptable compromise is reached. If both Houses fail to agree on their differences, the bill dies. This is an extremely rare event and has only happened on very infrequent occasions since 1945.

There are two major restrictions on the Lords ability to kill of a bill.

1) The Lords may not delay a bill for more than one parliamentary session. A bill lost in the Lords in one session but then passed by the Commons in the next parliamentary session, would automatically receive the Royal Assent regardless of whether the Lords opposed it in that session.

2) The Lords does not deal with any "Money Bills". These pass through the Lords without discussion.

This theoretical ability of the Lords to kill off a bill or even to hinder its passing has highlighted a major constitutional issue.

To some, the Lords acts as an insurance against an over-dominant government based in the Commons. Those in the Lords are usually older than MP’s and have the worldly experience (usually of politics) to make a positive input into the making and creating of new laws. Their experience is usually greater than the majority of MPs’ in the Commons and their perceived wisdom is a much-needed stabilising factor in British politics.

To others, the Lords are an unelected and, therefore, an undemocratic relic from another time that undermine the whole concept of representative democracy. If an elected government, so the argument goes, decides to pursue a certain policy, an electoral victory gives it the right to do so – and the Lords have no right to interfere in this process.

The current projected reform of the Lords is still being considered. In February 2003, Tony Blair argued that a fully appointed Lords would allow a cross-section of experts to be appointed to the second chamber. Such experts would offer a serious scrutiny of government bills and society as a whole would only benefit from this. This approach has been soundly criticised by many who argue that an appointed Lords would simply pass whatever the government wanted to be passed and would offer no scrutiny whatsoever to government bills. One of the major critics of an appointed Lords was the then Leader of the House, Robin Cook, a member of the Cabinet, who was to resign over the government's decision to attack Iraq.

After the First Reading, Second Reading, Committee Stage and Third Reading in the Commons and the input by the Lords, a bill (if it has passed through all the stages) is ready for the Royal Assent.

In this process, the monarch formally signifies assent to the bill so that it becomes an act and part of the law of the land. The Queen uses Norman French as part of tradition – "La Reyne le veult" ("The Queen wishes it"). The last time the monarch refused to give Royal Assent was in 1707 with Queen Anne. It is all but impossible to imagine a situation whereby the Queen would refuse to give Royal Assent to a bill that has gone through such a thorough examination. Such a refusal would spark off a major constitutional crisis.

An act usually has a date or dates in its text as to when it will be implemented (or when parts of it will be implemented if it is a multi-layered act). Some acts have a Commencement Order in them to activate it, or parts of it. The implementation of that act means that it is part of the law of the land from that date.

The British Constitution comes from a variety of sources. The main ones are:
Statutes such as the Magna Carta of 1215 and the Act of Settlement of 1701.
Laws and Customs of Parliament; political conventions
Case law; constitutional matters decided in a court of law
Constitutional experts who have written on the subject such as Walter Bagehot and A.V Dicey.

The Rule of Law is an aspect of the British Constitution that has been emphasised by A V Dicey and it, therefore, can be considered an important part of British Politics. It involves:
The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities.
There can be no punishment unless a court decides there has been a breach of law.
Everyone, regardless of your position in society, is subject to the law.

The critical feature to the Rule of Law is that individual liberties depend on it. Its success depends on the role of trial by jury and the impartiality of judges. It also depends on Prerogative Orders.

There are three Prerogative Orders:
Certiorari calls a case up from an inferior court to a superior one to ensure justice is done.
Prohibition prevents an inferior court from hearing a case it does not have the power to listen to.
Mandamus orders an inferior court to carry out its duties.

How relevant to 21st British Politics and Society is the Rule of Law?

Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey’s code with an increase in things such as:
the Official Secrets Act
the attempt to remove an individual’s right to trial by jury
the activities of the Secret Service (especially after September 11th)
removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997)
The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War

However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britain’s secret services (though they may not know if they are being investigated or not!) It is agreed with some justification that a modern society needs bodies like MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations.

Also there are bodies that theoretically oversee the activities of government agencies and their work – such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.

The development of the supremacy of Parliament stemmed from the English Civil War and has expanded ever since and is a dominant theme in British Politics. Those MP's who represent the public via representative democracy, have been handed the power to assess, pass or reject legislation. In every sense, the supremacy of Parliament is the backbone of British Politics and is only possibly threatened by aspects of the work of the European Commission and other European Union institutions.

Parliament can pass, repeal and alter any of Britain’s laws. This is one of the major powers that a government has. The Conservatives lead by Margaret Thatcher banned trade unions at GCHQ believing that they had no place in an organisation that is of great importance to Britain’s national security. This decision was reversed in 1997 by the newly elected Labour government of Tony Blair. Parliament also has the power – after going through its own parliamentary processes – of altering its own laws.

In theory there is no body that can declare a law passed by Parliament as unconstitutional - though the full impact of the European Court is not yet known in 2002. Courts have taken on government decisions over technicalities such as when Michael Howard as Home Secretary sent the Jamie Bulgar killers to prison for an unspecified term. The Courts deemed this illegal as they decided that only a person working within the judiciary had the right to come to this decision and that a specified term had to be given as opposed to a sentence "at Her Majesty's Pleasure".

If a government has a healthy majority, such as the current Labour government does, then there is little that can be done to stop it passing laws. The impact of the European Court will be interesting. To date, the European Council has passed laws which Britain has to implement (such as recent environmental legislation) but it is unlikely that the European Court will decide that a law that has gone through the due political process in Britain will be illegal. Once this happens, then arguably the need for an independent British legal system will be redundant. One of the fears raised by anti-European campaigners is just that – our laws, taxes, way of life etc. will be determined by a European directive and that Britain will lose all forms of independence in all spheres of government.

Are any limitations to the Supremacy of Parliament? If the government has a healthy majority and there is no backbench revolt, then apparently there is little that can be done while that government is in power.

However, every five years, the government is very accountable to the British people. This is one of the very corner stones of representative democracy. After the April 2002 Budget, Tony Blair stated categorically that it will be the British electorate that will decide if there has been an improvement in the National Health Service and whether the increase in National Insurance rates was justified.

Second, a government even with a healthy majority, has to be sensitive to public opinion simply because there is a general election at the end of its five year life. One of the reasons put forward for the heavy defeat of the Tories in 1997 was that they had lost touch with what the people wanted; lost touch with public opinion.

Third, pressure groups do exert power on governments. It is impossible to measure this power as no government will admit to introducing legislation or reforming established law, simply because a pressure group has asserted itself.

Fourth, the government itself as represented by the executive, the Cabinet, may lose touch with rank and file backbench opinion. The 2001 Labour government has a very healthy parliamentary majority of 167 and can afford to upset a large chunk of backbenchers. In Easter 2002, over 100 Labour MP’s signed a petition stating that the government should not get involved in any military campaign against Iraq. At the time, the government was very bellicose about a military campaign. Within a week, this had dampened down and the public talk by the Cabinet was far more muted and the language used was far more diplomatic. Was this to do with the petition? Again, few if any governments will admit that they would have changed their policies as a result of pressure. But a government facing a vocal backbench rebellion looks weak and disunited. The public’s perception of such a government may not be good.

In the same month, April, 119 Labour MP's signed up to LATE (Labour Against the Euro). Even if all 119 ganged up against the government over certain bills, the government still has a majority of 48. However, it is possible that the government will have to handle this group with skill as a revolt by 119 MP's simply looks bad.

Therefore, the theory of the Supremacy of Parliament whereby a government can do as it wishes, does, in fact, have limitations. The current Labour government has faced internal party questions over the health service, education, defence policy and sleaze – so its huge parliamentary majority does not guarantee the supremacy of the executive within Parliament.

he separation of power is an integral part of American Politics but is less clear in British Politics primarily as one, the American model, is guaranteed in their Constitution while the British Constitution is uncodifed and therefore roles have merged between parts of government.

Government functions through three bodies:
The Legislature which makes laws
The Executive which puts laws into effect and plans policy
The Judiciary, which decides on cases that, arise out of the laws.

In America all three branches are systematically split between the Executive (the president), the legislative (Congress) and the Judiciary (the Supreme Court). The president cannot serve in Congress when president and serving Congressmen cannot be a Supreme Court judge. In theory, no branch becomes more powerful than the other two so that a balance occurs. The American Constitution clearly states what the executive, the legislative and the judiciary can do.

In Britain this is not so clear. The legislative aspect is Parliament where laws are passed; the executive (which plans prospective laws and formulates policy) is the cabinet of the government and the judiciary is the Law Lords and the Judicial Committee of the Privy Council who have a final say on legal issues (the European Court excluded).

However, whereas the American model has separation as part of the American Constitution, this is less clear in Britain.
The Prime Minister is an active member of the legislative (and can vote in Parliament, though a recent criticism of Tony Blair and Gordon Brown is that their voting record is one of the poorest of MP’s in the Commons) yet he is also the leading member of the executive.
Also the Lord Chancellor is a member of the cabinet and therefore of the executive as well as being head of the judiciary.
The House of Lords also has a right to vote on bills so they are part of the legislative but the Lords also contains the Law Lords who are an important part of the judiciary.
As with the PM, the members of the Cabinet are also members of the legislative who have the right, as a Member of Parliament, to vote on issues.

Therefore, there is a merging of roles in the British model. Some have argued that this is needed for flexibility in a modern society. Supporters of the American model claim that a written constitution gives a government the rights it has so that it cannot trespass onto power held by other parts of the political system or have its powers trespassed on by others. The Executive (President’s office), the Legislative (Congress) and the Supreme Court (Judiciary) have very clear powers stated in the American Constitution that restricts each section’s powers and avoids crossover between the three sectors of politics.