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The Invisible Palace—Part 2

The Constitution

'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.

*

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:

1. THE MONARCH / CROWN The Queen
2. LEGISLATURE Parliament		3. EXECUTIVE Government		4. JUDICIARY Judges
Members of Parliament (MPs) in House of Commons and Peers in House of Lords		Prime Minister and other Ministers of State in Cabinet (in political party with majority of MPs)
		Civil Service/Armed Forces

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.

2. THE LEGISLATURE

The Legislature means our law makers. In this country our chief law maker is The Queen in Parliament', and in the next chapter we will see how this works. All those responsible for making laws in Parliament, whether they are Members of Parliament in the House of Commons or Peers in the House of Lords swear an oath of allegiance to the Queen on taking office, and all Acts of Parliament must receive the Royal Assent—the Queen's agreement and her signature, before they can become law. The two Houses of Parliament also hold the Government (executive) to account for its actions, by making it answer questions and explain itself.

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3. THE EXECUTIVE

The Executive is the power which can take the initiative for change: it can take action.

LOCAL GOVERNMENT

In the 'town and country' the local authority in each area decides such matters as who should clean the streets, what the traffic speed and parking restrictions might be, and what sort of school organisations we should have. The executive in the Local Authority is formed by the political party which wins the local elections, and has greatest number of councillors on each county or borough council. The local executive is therefore voted in (and can be voted out) by the people.

NATIONAL GOVERNMENT

The national executive is always known as the Government. It is formed from the winning political party at the nationwide General Election. This is the party which has the most members in the House of Commons. These are Members of Parliament (MPs). The national executive is therefore also voted in (or out) by the people.

The leader of that winning party becomes Prime Minister. He or she chooses other members of that party to be in charge of different aspects of government—for example, foreign affairs (the Foreign Secretary), money and taxation (the Chancellor of the Exchequer), law and order (the Home Secretary). The most important of these Secretaries of State are the Senior Ministers who form the Cabinet. This is the top committee of government; but there are many other members of the Government (more than 100) doing different jobs. These are the Junior Ministers. All Ministers are assisted in their government departments by thousands of permanent officials in the Civil Service.

The Government makes the day-to-day decisions about the public life of the country: foreign policy—even war and peace; the level of taxation; expenditure on roads, hospitals, education, and welfare. The policies of the executive in these areas provide the framework within which we live our everyday lives. It is the executive which decides how that policy is to be carried out, and the executive is actually responsible for carrying it out. It is helpful to take an example:

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LAW AND ORDER

• We know that if anyone is accused of committing a crime, he is first charged and then brought before a court. The court will decide if he has committed the offence, and if so what the punishment should be; but there is much more to a system of 'law and order' than that. Taw and order' involves making laws to protect people from any form of crime or disorder, providing a police force to investigate and enforce these laws, and the means of rehabilitating or punishing anyone who breaks them—for example, the probation service and prisons.

The Home Secretary is the Minister responsible for law and order. He is a member of the Cabinet and part of the executive (Government). The Home Secretary obviously cannot do all this work on his own. He is in charge of a great Department of State (the Home Office), and together with his junior Ministers who have special responsibilities in the Department, he must make the major decisions as to how it is run. The Home Office is the Government department in which civil servant employees (all persons employed by the State or 'the Crown' are called civil servants) deal with matters of law and order and the reform of the criminal law.

The Home Secretary, his Home Office ministers, and the thousands of civil servants who work in the Home Office are the branch of Government which must be responsible for law and order matters. This of course includes how we deal with the problems of crime and criminals. They will put forward legislation (new laws) to tackle crime. This will include the various ways in which criminals can be punished. Parliament will then decide whether to pass these laws.

The executive, in the form of the Home Secretary and the Home Office, is in overall control of all the other tens of thousands of civil servants who are concerned in keeping law and order—the police service, and the National Offender Management Service (NOMS) which incorporates the work of the probation service and the prison service. It decides how they should do their work and how that work should be organised. That is the purpose of government.

4. THE JUDICIARY

The Judiciary (judges) has two vital roles in our constitution. First, where there is any dispute about constitutional law, the judges must decide what the law is. Their most important role, however, is to act as an independent check