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PUBLIC LAW
(Module Code 4LW002)

































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Question 1
A Constitution regulates, organizes, and distributes state power. It is a set of
rules, generally contained in a single legal written document, or series of
documents, which establish and regulate or govern the government
1
. It achieves
this by setting out the structure of the state and main state institutions. It also
specifies the relationships between government, Parliament, the courts and the
ordinary citizen. Britain, however, is one of three countries in the world that
does not have a written constitution
2
. This essay will examine the meaning of an
unwritten constitution and will consider the main sources of the UK
constitution that are part written and part unwritten, including statute, common
law, works of authority, and accumulated conventions.

The fact that the UK does not have a written constitution can be explained by its
history. The British Constitution has evolved over a long period of time, dating
back to the Saxon kings who ruled England before the Norman Conquest
3
. One
main reason that a country usually acquires a written constitution is due to a
certain political event or revolution
4
. When this occurs, there is a break away
from previous constitutional arrangements and a new written, codified
constitution is needed to specify the main relationships between institutions and
between institutions and citizens of the state. This is evident in most countries
where there can be found a core constitutional document which enshrines rules
and regulations. However, constitutional development in the UK has been
largely peaceful and evolutionary. There has never been a definitive turning
point that has called for codification and this has resulted in the constitution
being partly written and wholly uncodified
5
.

It is worth clarifying the main characteristics of the UK constitution before
embarking on the main sources. Firstly, it is a flexible system since it is relatively

1
Defined by Professor K C Wheare [1966, p1]. Source H Barnett, Constitutional
& Administrative Law, 9
th
edn, Routledge, p 7.
2
Israel and New Zealand also do not have a written constitution.
3
In 1066.
4
As in the United Stated in 1787.
5
I Budge and others, The New British Politics, p 75.
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easy to update and enact statute when necessary, compared to nations with a
written constitution, where the need for a special majority and referendum may
need to take place in order to achieve this
6
. Secondly, since the Queen is head of
state, it is a monarchical, as opposed to republican constitution where the head
of state is the president
7
. Thirdly, it has a parliamentary characteristic since it is
the prime minister and not the president, who is the head of the system. Finally,
the UK has a unitary system of Government, with political control concentrated
at the core.

The main source of this uncodified constitution derives from statute, common
law and conventions. Hilaire Barnett
8
divides the sources of the constitution
into two categories, namely legal and non legal sources. The legal sources can be
found in statute and judicial precedent and are supplemented by binding, non-
legal conventional rules and practices.

Statutes are the main source of the British constitution. The Magna Carta,
established in 1215, is the first document that limited the power of the monarch
and included human rights in the UK. Perhaps of greater contemporary
constitutional importance is the Bill of Rights 1689
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which has provided the
basis for legislative powers of Parliament and common law, for the powers of the
Monarch. Entry of the UK into the European Union in 1973 was another major
constitutional development, bringing Britain under the supra-national
jurisdiction of the EU. The incorporation of the European Convention on Human
Rights by the Human Rights Act 1998, provided individuals with the ability to
bring claims in domestic courts. This has strengthened the ability of ordinary
citizens to challenge the actions of various institutions of government and has
resulted in EU law also being a source of the UK constitution. However, it is the
judiciary who have the power to make a declaration of incompatibility with EU
law. Parliament has a duty to consider this incompatibility and has thereby

6
For example, in the United States of America.
7
Ibid.
8
H Barnett, Constitutional & Administrative Law, 9
th
edn, Routledge p 27.
9
The Crown and Parliament Recognitition Act 1689 gave statutory effect.
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retained the principle of parliamentary sovereignty. The Constitutional Reform
Act 2005 has achieved a more distinct separation of powers by the creation of a
supreme court within the UK. This has enabled the judiciary to act as a check
against parliament. Clearly, these are constitutional landmarks which are all a
very important source of the UK constitution.

Common law is another main source of the constitution. It is developed by the
courts and judges through case law precedent based upon customs and tradition
and ensures that civil liberties are respected. Judicial courts are obligated to
recognize these principles and rule cases without biasness and with guidance
from previously established laws through practice. This allows judges to make
constitutional judgments without the overwhelming reliance of a written text on
what is right or wrong. The royal prerogatives of the Crown, the right of trial by
jury and the right of freedom of speech, rest almost entirely on common law.

Conventions are also classed as being a source of the constitution. Conventions
are unwritten rules determining the conduct of government. Guidance on the
office of prime minister and role of the cabinet are almost entirely found in
convention. Most of them arise out of the transfer of royal prerogative powers
over the centuries, to parliament and ministers. A good example being that the
Prime Minister has the power to appoint all government ministers. Marshall and
Moodie
10
define conventions as being rules which are considered to be binding
by and upon those who operate the constitution which are not enforced by the law
courts... Courts will give recognition to a convention, but they do not have
jurisdicition to adjudicate
11
. It is by convention that the Crown will not refuse
Royal Assent to bills passed. It may further be explained as a rule that sets out
conduct, required in a given situation, which is expected to be followed.
Succinctly put, Sir Ivor Jennings stated that conventions not only are followed
but have to be followed
12
. This can be illustrated by the enactment of the
Parliament Act 1911. It was a major conventional rule that in financial matters,

10
G Marshall and G Moodie.
11
Attorney General v Jonathan Cape Ltd [1976] 1 QB 752.
12
H Barnett, Constitutional & Adminnistrative Law (9
th
edn, Routledge), p36.
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the House of Lords would give way to the will of the House of Commons.
However, the Lords rejected the Finance Bill and as a result, the government
introduced the Parliament Bill, which allows the Lords to delay, but not reject
legislative proposals. Clearly, where a breach of convention is seen to be
significant, Parliament in exercising its sovereign power, can place a convention
on a statutory basis. It can be seen, therefore, that although a breach of
convention has no legal repercussions, it may have a significant political impact.

Dicey
13
was of the view that the UK constitution, although being unwritten, was
based upon the principles of the legal sovereignty of Parliament and the rule of
law. Parliamentary sovereignty is commonly regarded as the defining principle
of the British constitution, since it is the ultimate lawmaking power which no
person or body is recognized by the law as having a right to override or set aside
the legislation of parliament.
14
Therefore, parliament can pass any legislation it
chooses, since it is not bound by its predecessors, nor does it bind its successors.

The principal of the rule of law ensures that the correct balance of rights and
powers between individuals and the state exist. The rule of law contains values
of legality, certainty, consistency, accountability, due process and access to
justice. They provide that the executive may do nothing without clear legal
authority and acts as a check on the executive. A good example can be seen in
the case of Entick v Carrington
15
where the values of the rule of law were
successfully upheld since there was neither statute or common law precedent
which made the government activity lawful. In contrast to this, it has been
argued that the nature of our constitution is hidden and difficult to findbarely
known to the public
16
. A codified document would be a point of reference
making it easier for citizens to understand, which is an implication of the rule of
law.

13
A V Dicey 1885 was an English Jurist. His views have continued to be
influential, despite challenges.
14
A V Dicey.
15
Entick v Carrington [1765] 19 St Tr 1029.
16
as per Lord Scarman, Scarman argues for a Bill of Rights to protect democracy
(21 July 1992).
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The opinions of jurists are also an important source of the UK constitution. Such
opinions are expressed in consultation with customs, traditions, judicial
decisions and statutes.

In conclusion, it can be seen that the UKs unwritten constitution has an
overriding advantage, since it provides an element of flexibility compared to a
written constitution which is more rigid. Parliament can change or add to our
constitution when the electorate votes for change, without the need of going
through a lengthy procedure as in America, where the written constitution is the
ultimate authority. This is evident in the UK by various statutes that have been
amended, enacted or repealed, in order to change aspects of the constitution.
The present unwritten constitution in the UK may contain many sources, but it is
undeniable that Britain has a successful judicial system and a democratic
Parliament. The English constitution is a growing organism which has been
undergoing a slow process of evolution for centuries. This has provided a very
solid foundation which should enable it to continue to grow for many years to
come.

1494 words
















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BIBLIOGRAPHY


Books


Barnett, H, Constitutional & Administrative Law (9
th
edn, Routledge)

Budge, I and others, The New British Politics (4
th
edn, Pearson Education)

Faragher, C, Public Law (2
nd
edn, Oxford University Press)








Other Published Sources

Timmins, N, Scarman argues for a Bill of Rights to protect democracy, The
Independent (21 July 1992)






















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Electronic Sources

BBC News, The UK Constitution
http://newsvote.bbc.co.uk
accessed 19 March 2013

History Learning Site, The British Constitution
http://www.historylearningsite.co.uk/british_constitution1
accessed 4 February 2013

UK Parliament, Parliament and government
http://www.parliament.uk/about/how/role/parliament-government
accessed 4 February 2013

University College London, What is the UK constitution?
http://www.ucl.ac.uk/constitution-unit/research/uk-constitution
accessed 19 March 2013




























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TABLE OF STATUTES


Bill of Rights 1689

Human Rights Act 1998

Magna Carta 1215

Parliament Act 1911




































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TABLE OF CASES



Attorney General v Jonathan Cape Ltd [1976] 1 QB 752

Entick v Carrington [1765] 19 St Tr 1029