Constitution: Saad Andalib, Barrister-At-Law

Saad Andalib,
Barrister-at-law.
CONSTITUTION
To begin with, we might first discuss whether there’s a written constitution for UK before we discuss about
its advantages and disadvantages. In fact, what is a constitution for? KC Wheare opined that a
constitution is a set of rules that govern the exercise of public bodies and a code for citizen’s behaving.
But as UK doesn’t have a single document which contains all set of rules in UK (like the US Constitution)
is that UK citizens didn’t know about the code of practice?
Sir Ivor Jenning put the above theory in this way: if you said that UK doesn’t have a single written
document that contain all the laws within the Kingdome, well, yes, you may say so, but we need to look at
the meaning of constitution, that its rules that govern the conducts of executives and citizens, and that
kinds of rules and practices do exist in UK, just not in the form of a written document. Dicey points out in
cases like Pickin v Brit Rly that it explain the sovereignty of Parliament, and like cases as Entick where it
regulates the executive exercise of power, that it all shows that British does have a set of rules, whether it
exists in statutes (Magna Charta, Bill of Rights 1688, Act of Settlement, European Communities Act), or in
decided cases law, or even embedded in citizen’s moral value.
From a comparative perspective, the UK has what is known as an ‘unwritten constitution’, although some
prefer to describe it as ‘uncodified’ on the basis that many of our laws of a constitutional nature are in fact
written down in Acts of Parliament or law reports of court judgments. This aspect of the British
constitution, its unwritten nature, is its most distinguishing characteristic.
Features of Britain’s unwritten constitution
There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one being
that in law Parliament is sovereign in the sense of being the supreme legislative body. Since there is no
documentary constitution containing laws that are fundamental in status and superior to ordinary Acts of
Parliament, the courts may only interpret parliamentary statutes. They may not overrule or declare them
invalid for being contrary to the constitution and ‘unconstitutional’. So, too, there are no entrenched
procedures (such as a special power of the House of Lords, or the requirement of a referendum) by which
the unwritten constitution may be amended. The legislative process by which a constitutional law is
repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is
similar in kind to any other Act of Parliament, however trivial its subject matter.
Another characteristic of the unwritten constitution is the special significance of political customs known
as ‘conventions’, which oil the wheels of the relationship between the ancient institutions of state. These
are unwritten rules of constitutional practice, vital to our politics, the workings of government, but not
committed into law or any written form at all. The very existence of the office of Prime Minister, our head
of government, is purely conventional.
According to Dicey, convention is a set of practice tradition and habit of how the major player of the
constitution operate the major function of the organ of the country, but they are not legally enforceable in
the judiciary system. Meanwhile, Marshall & Moodie describe it as the rule that are binding upon the
members of the major constitutions. Within the state Jennings set up the three part test on the
constitutions to define what it exactly is. Firstly, what are the precedent of the practice and whether it is an
Act of Parliament. Secondly, if they are not an Act of Parliament does the constitutional body self-
consider it as a binding part when it performs the convention? Lastly, if he doesn’t act in the way of the
convention, there would be any scrutiny or sanction on him. Constitutional convention can be said as the
rule of the game that key constitutional players in the UK should follow. Although it is not enforceable in
the court, there would still be a political rather than legal solution on the breach of that convention.
Saad Andalib
Email: [email protected]
Contact: 01835989508
Saad Andalib,
Barrister-at-law.
The written documents of our unwritten constitution
There is irony in the fact that the United Kingdom today does not have a written constitution, yet
historically it has had a rich heritage of pioneering constitutional charters and documentation. First and
foremost is Magna Carta (1215), the ‘Great Charter of the Liberties of England’. This established the
principle that our rulers, at that time the king, could not do whatever they liked, but were subject to the law
as agreed with the barons they governed. This simple concept laid the foundations for constitutional
government and freedom under the law. Insofar as Magna Carta was ‘the first great public act of the
nation’, it also established the direction of travel for our political system towards representative institutions
and, much later, democracy itself.
In 1258, the Provisions of Oxford, sometimes referred to as the first ever written constitution, provided for
a Council of twenty-four members through whom the King should govern, to be supervised by a
Parliament. This was convened for the first time in 1264 by Simon de Montfort (d. 1265). During the
constitutional conflicts of the 17th century, the Petition of Right (1628) relied on Magna Carta for its legal
basis, setting out rights and liberties of the subject including freedom from arbitrary arrest and
punishment. The Bill of Rights (1689) then settled the primacy of Parliament over the monarch’s
prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech
in parliamentary debates, and some basic human rights, most famously freedom from ‘cruel or unusual
punishment’. This was shortly followed by the Act of Settlement (1701) which controlled succession to the
Crown, and established the vital principle of judicial independence.
Over the past century there have been a number of Acts of Parliament on major constitutional subjects
that, taken together, could be viewed as creating a tier of constitutional legislation, albeit patchy in their
range and with no special status or priority in law. They include:
o The Parliament Acts (1911–49) that regulate the respective powers of the two Houses of
Parliament.
o The Representation of the People Acts (1918) (as amended) providing for universal voting and
other matters of political representation.
o The European Communities Act (1972) making the UK a legal partner in the European Union.
o The Scottish, Welsh and Northern Ireland devolution Acts of 1998 (as amended) creating an
executive and legislature for each of those three nations in the UK.
o The Human Rights Act (1998) establishing a bill of rights and freedoms actionable by individuals
through the courts.
Recently, too, some conventions have been subject to an ad hoc codification, such as the principles of
ministerial responsibilities in the Ministerial Code.
Should the UK have a written constitution?

The question then arises— should the UK now take steps to codify all its laws, rules and conventions
governing the government of the country into one comprehensive document, ‘a new Magna Carta’? The
case for a written UK constitution has been debated by politicians of all parties for several decades and
has been the subject of a House of Commons committee inquiry during the 2010–15 Parliament. If a
written constitution for the future is to be prepared, it must be one that engages and involves everyone,
especially young people, and not simply legal experts and parliamentarians. Some of the mystique and
charm of our ancient constitution might be lost in the process, but a written constitution could bring
government and the governed closer together, above all by making the rules by which our political
democracy operates more accessible and intelligible to all.
Saad Andalib
Email: [email protected]
Contact: 01835989508

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Saad Andalib,

Features of Britain’s unwritten constitution

The written documents of our unwritten constitution

Should the UK have a written constitution?

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