CONSTITUTION UK

The UK Survives as a Country without a Constitution.

“What that doesn’t make sense. Isn’t it the UK that practically defined the whole concept of a Constitutional Monarchy?” is the most common response to this info.

Odd as it might sound, it is true that the UK is one of the very few nations on Earth that lacks a formal Constitution as a basis for its powers of governance. This fact often confuses visitors and students, and for those who wish to do business in the UK this is another strange cultural quirk that colors their expectations on the law and bureaucracy.

The UK is clearly a modern, developed country that until recently was pivotally located within the European federal framework, possessing far disproportionate power and influence to its geographic size and population. At no point in the past century has the lack of a formalized constitution been a hindrance to their governance, so how is it that they can do without this strongly defined legal foundation for their national identity?

Other Countries without a Constitution

But before we discuss how this works out in practice, here are the other nations that do not possess a formal constitution.

  • Israel
  • Saudi Arabia
  • New Zealand
  • Canada

There are literally only a handful of nations without a codified constitution. None of them can really be considered governmentally unstable states either. Israel has its Basic Laws as a general substitute for the spread of government activities, while Saudi Arabia’s monarchy bases their laws on Sharia Laws derived from the Quran. New Zealand and Canada have Constitution Acts that comprise a portion of their uncodified constitution and Acts of Parliament, treaties, orders, and court decisions to make up the difference. Of course, the interesting part of the latter two is how they define their constitutions as “similar in principle to the United Kingdom”.

But Why?

Unlike other nations that founded themselves based on principles laid out in their Constitution or overthrew their previous monarchs to set up a Republic, the UK’s constitutional powers evolved over centuries of compromise between the powers of the Monarchy and the House of Lords. Eventually this transitioned into the parliamentary system we use today.

There was never a drastic need to set out one big formal document detailing the powers, privileges and limits of the government because it was laid out across several other bodies of laws and customs.

The whole concept of a constitution, a charter, detailing the rights and obligations of a government was pioneered in these isles by the historic Magna Carta. However as times passed most of its provisions were repealed or its rights secured by other statutes, and the document holds little legal weight today. This is reflective of the fluid way the UK approaches the bonds of legalism from which is derived the protection of its citizens and the power of its government.

In certain ways, this approach makes it far easier to change the laws to be more responsive to the needs of the people. There is sometimes a distressing tendency not to treat constitutions as living documents that can be amended as the times change, but almost enshrined as unchanging holy writ from which derives all authority to act.

Flexibility of Bits and Pieces

So if not a Constitution where then does the UK derive its rule of state? The UK is simultaneously a monarchy and a representative democracy.

Though the Monarchy largely serves a ceremonial role at present, by law the executive power is vested from them to the Parliament. The 1689 Bill of Rights subordinates the authority of the Crown to the Parliament, one of the documents that among several others form the uncodified constitution of the UK, and an inspiration for the formation of other nations’ Constitutions later on.

Due to the evolutionary nature of British Law, the UK has something called the Parliamentary Supremacy, which grants it the certain qualities:

  • Parliament can make laws concerning anything,
  • No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament),
  • A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

“So the Parliament can’t be stopped by the courts? Isn’t that dangerous?” is the most common response from other nations that rely on the checks and balances between the judiciary, legislative and executive branches of government.

A common way to visualize the Parliament as the equal powers of the Crown, the House of the Commons and the House of Lords. In practice the bi-cameral (dual chamber) parliament plus the requisite monarchical ratification works out a comprehensive set of checks and balances that would otherwise have to be provided by a written constitution.

From Bill to Law and Partisan Bickering in Between

A major characteristic of the UK’s uncodified constitution is the meticulous process that a bill must go through before legal enactment.

Any bill must start at the House of Commons, the elected body of representatives whose Members of Parliament are empowered with legislative initiative. Known as the First Chamber, her legislation is proposed and debated before the final draft is submitted to the Second Chamber, the House of Lords.

This body is largely formed of appointees, and membership may pass from generations or new members proposed by the House of Commons. They no longer have the right to veto (since Parliamentary act of 1911) but only delay enactment of a bill or send back to the first chamber proposed changes to their bills.

While the unelected nature of a sizable legislative body may be disconcerting to someone not used to the parliamentary system, it is the function of the Upper Chamber made of appointees to consider public policies before they become Acts of Parliament and become law and to hold the government to account. They can take a longer view rather than the election-focused perspective of Members of Parliament. While the monarch has not used the power of veto for a very long time now, there still exists an important constitutional safeguard for the passing of laws.

This is in contrast to the sometimes acrimonious relationship between lawmaking bodies in other systems. It is true that there is still a lot of horrid politicking going on, and sometimes there are missteps in the direct way that the Parliament can propose binding conventions on national policy (the whole Brexit debacle), but rarely so how different branches can oppose each other based on partisan divisions.

Laws and the execution of laws are often challenged using being unconstitutional or not exactly forbidden by the constitution as a bludgeon. The Parliament is supposed to be a self-policing body, in a way that the Judiciary tends to serve in other systems. Because of this power to create and overturn any law that itself has made, the United Kingdom unlike most other European nations has been relatively inured to major (and sometimes bloody) social revolutions ever since the late 1600s.

It may not be readily apparent, but behind the scenes is often just as strict and detailed code of conduct that help to ensure the government runs smoothly day by day. Though there is not a single definitive document as a constitution to define the government, there are various codes and practices and layers of custom that help to curtail excesses of power.

Still Waters, Deep Currents

Though it is not so obvious on first glance, the UK constitution does exist in a very operative form. Centuries and a lot of blood was spilled to create this system that sharply restrained both the abusable powers of the monarchy and the temptation of narrow-minded populist desires.

Though lacking a single document, its different Bills and Acts of Parliament and other laws all combine to a system that has served to inspire the formation of many other democratic nations. It can be argued to have one of the oldest and most successful constitutions that has ever existed. One can be confident that it can continue to survive in this manner for quite a while longer using this irrepressible historical momentum of a tradition that demands an ability to change and adapt.

The Break Clause and how to use it

It is crucial to know that the content of the lease agreement is for your benefit if you are a landlord or tenant. Make sure you have a clear understanding of a break clause and its application.

For instance, if a break clause is attached to your lease agreement, it means the landlord or the tenant has the right to bring the lease agreement to an end in the early stage. This approach of break clauses is used by tenants who want to bargain for a more beneficial lease term agreement to have a fair advantage over some property owners who wish to preserve their source of income judiciously.

The Letting Market

Landlords have been feeling worried ever since the focus has been on assisting more individuals to purchase their homes; this has brought about a decrease in demand for letting of houses. As the pangs of economic challenges bit harder, more tenants are utilizing the features of the break clause. According to some provisional break clauses, the tenant must have met specific conditions as at the break date, and litigation process will start.

Serving The Notice

There are various types of break clauses, and some of them dictate how the notice must be issued. It may even foist certain conditions on the technique to be utilized while it is being served. It is crucial to note that failure to follow the rules stated in the terms will make the notice invalid. The notice cannot be withdrawn once it has been issued.

If you are a tenant, make sure you do your research by checking the information of the parties in the lease agreement with the Land Registry and Companies House. It is also vital to take a careful look at the details of the lease agreement before signing it. You must make sure if the service provisions of the agreement are compulsory. If you are not sure of the requirements, you can exploit several techniques to issue the notice to the property owner and the agents to protect yourself. Ensure you acquire proof of service of the notice for record purposes.

Landlords are also advised to maintain close relationship with their tenants to forestall an event where a notice will be issued to them, as this will make them have a fair advantage, as well as give them the opportunity to discuss new terms of agreement before it gets too late and prior to the time the renter is no longer staying in the house.

When To Serve The Notice

Several factors will determine the application of the break notice. A break notice can be invoked when a specific time has passed, or there are some particular dates it can be done. This clause should be made clear in the lease agreement and the terms of the notice period should be explicit and clear to the tenants. Occupants of the property should keep a record of the dates in the clause and reconsider their options at least twelve months before the notice period begins.

Try to seek an audience with the audience with the landlord if you are not sure of the dates of the break clause; this will enable you to agree on a date. Do not wait until the last minute before making a move as you can serve several notices if there is a need to do so. Moreover, if your landlord is a company based abroad, you will need to give them more time.

Maintaining an excellent relationship with the occupant of your property as a landlord will offer you an idea if your tenant will take advantage of the break clause if you attempt to increase the rent. This relationship will enable you to decide if it is the best time to raise the price. As a landlord, when you are about to increase the rent, you may have to check for any time limits in the rent review clause that you may need to oblige to if the break date is associated with the review date.

Conditions

Terms of a break clause are found in the tenant’s break clause and can entail essential details like full payment of the rent under the lease agreement. Several litigation cases have been recorded on types of cases such as these, as it should be made clear from the beginning if the tenant is obliged to make payment if the break date falls within quarter days.

It is also essential for all occupants to find out if the lease agreement involves principle rent or have other fees such as interest or value-added tax. Make sure you know your payment history and in the case of late payments, ensure you pay the interest accrued on the late reimbursements. Tenants are advised to receive verification from their landlords that their fees are complete as these facts could be challenged after the break date in the absence of a verified proof. During the negotiation of your lease, make sure your landlord refund payment for the time after the break dates. Landlords should not create a completion statement unless it is stipulated in the lease agreement.

Vacant Possession

The term “vacant possession” does not mean unoccupied in the real sense, it says the personal effects of the tenants have been removed, the keys have been returned, and no occupant is there on the break date. Tenants should make sure they are not using the property during that period or preventing the landlord from using the property. Occupants should be informed of any repair works that must be executed for them to leave the premises and the landlord must also confirm about the kind of work they want to do on the property. Landlords should make sure that the tenant is issued a notice to restore modifications.

Tenants Covenants

The covenants stipulate that the occupant should comply with their rules, especially when the condition of the house is discussed. It is important for tenants to complete a compliance audit with a surveyor that will inform the landlord of any violations of the lease covenants as this will offer you as the property owner to do the needful by repairing it. The landlord is obliged to provide you with a schedule for any repair jobs, and this should be concluded before the break date.

Settlement

A financial settlement may be required ahead of the break date to pay for the repair work and save the tenant from break pre-conditions. It offers certainty that the lease will end on the break date and both parties have to negotiate the repair settlements. It is vital to start the process of settlement early as it will make the last stages of a break more comfortable for the landlord and the tenant.

As most individuals view a break clause as negative, making it explicit and in clear terms will inform all parties involved about their responsibilities and this knowledge will make the process a pretty straightforward one.

brexit uk law

The Impact of UK Departure From The EU On Family Law

As everything keeps changing with connections between the UK and EU, legislation is taking quite a hit. Who has jurisdiction over who, what decisions will be affected by new legislation both in family law and other financial and personal areas that will be on everyone’s minds. Only time will tell what the final outcome will be.

While the country is still reeling from the EU referendum, we need to take a much closer look at how departure from the EU will impact family law in England and Wales.

Family law is not a stranger in the sense of taking steps to move away from the EU which will take quite a bit of unraveling from the EU legislation. The same can be said regarding many of our other laws. Without a doubt, this will take quite some time and the process will probably drag out for quite some time. Although the long-term impacts of Brexit, or departure of the UK from the EU, may not be fully felt for quite awhile, there are many consequences in regard to future divorces from the EU.

Nigel Shepherd, chair of the family law organisation Resolution, spoke after the referendum was announced. He stressed that the results have created a period of great uncertainty. This has emphasized the uncertainty arising from the fact that family law is essentially linked to the referendum and other jurisdictions.

The EU Legislation

Being in force since 2001, Brussels IIa has been an important part of the EU legislation and offers uniformity and a certainty in recognizing the divorce proceedings in various jurisdictions of the EU. With its absence, Family Court in the UK will need to adopt new avenues for addressing some important areas that will continually pop up in matrimonial proceedings.

As a perfect example, the most significant problem in issuing divorce proceedings will be to consider whether the court you are applying to actually has jurisdiction to accept your proceedings. Even more crucial could be involving multinational couples trying to figure out which court will hear their divorce petition. This is very important because different jurisdictions have to decide financial cases in different ways. Some courts could be seen as more favourable to one party over another. In many cases, there will be a mad dash to issue the petition first to the country that will be most favourable to the spouse. What country has jurisdiction is still governed by the EU legislation.

Bear in mind, in the absence of this important EU legislation, this will lead to even more uncertainty regarding who has the jurisdiction to hear the case. It has been iterated that the courts will have to fill the vacuum with something that would be similar to Brussels II in order to address the situation.

Adding to this, the Brussels IIa allows an order that was created in England to recognised and is enforceable in other jurisdictions. Orders that are commonly affected by the EU legislation includes child custody, other arrangements and matrimonial orders that need to be addressed by the new legislation in order to stay enforceable across the borders.

Keeping agreements made between multinational couples in a divorce are governed by Brussels IIa which allows for a more uncomplicated approach for enforcement across different jurisdictions. The enforcement of these agreements will need to be addressed in light of any new legislation and will have the greatest impact on matrimonial property and who owns what in different countries.

Other Arising Issues

Although family law is not the leading victim of departure from the EU (or Brexit), there will still be a great deal of uncertainty leading up to the formal Brexit while negotiations continue with the EU and this could take a number of years.

In a time of great uncertainty for couples divorcing, there will be even greater anxieties and fears that will arise. On a broader scale, the possible impact of Brexit could lead to an increase of interest rates, a fall in pension values, and the outcome of the property market. All of these situations will also add to many more concerns in what has become a very stressful time.

What’s In The Future

That said, some analysts have suggested that while breaking away from the EU will cause a period of uncertainty, there might be an opportunity to embrace change. By drafting domestic legislation that can provide better laws than what currently exists with the EU might be a positive solution.

The final outcome cannot possibly be known at this time. Couples who are dealing with difficulties are strongly advised to seek out guidance as soon as possible. They need to fully understand the complexities of Brexit and understand the impact that they may experience both on their personal and financial circumstances.

In Conclusion

With the changes of Brexit, there will be many challenges ahead and what courses will be the most positive for family law and many other legislation. Time will tell the final impacts and outcomes and how much anxiety and stress lies ahead. Family law has many challenges yet to be seen. Couples looking for divorces should get counsel in order to understand the changes and how they will be impacted.