The British Constitution

Definition:
➔ ‘A constitution is the set of important rules that regulate the relations among the different
parts of the government of a given country and also the relations between the different
parts of the government and people of the country’ — Anthony King (2001).
➔ ‘A document having a special legal sanctity which sets out the framework and the
principal functions of the organ of the government within the state and declare the
principles by which the state must operate’ — Bradley & Ewing, Constitutional and
Administrative Law (2007).
➔ ‘Body of rules and arrangements concerning the rules and arrangements of a country’ —
Colin Munroe.
➔ A collection of rules, codes, principles, arrangements and precedents.

Purpose
➔ To establish and set out a complete account of all constitutional matters in a state
➔ To bring together laws, legal theories, founding concepts, rules and precedents
◆ That dictate the relationship
● Between different arms of government
● Between the state and citizens
◆ Powers, functions, responsibilities and rights.
➔ To affirm particular values and goals.
➔ To ensure that the government operates properly without abuse of power.
➔ To ensure stability, order, legitimacy, morality and principles government and existence
within a country.

Nature and Characteristics

1) Unitary in structure
➔ Not Federal — only one government for the UK
◆ Ultimate power and authority is held by one government centralized in England
 ◆ For governance at local level — system of local government provided by the
Local Government Act and must act within the powers delegated to them.
➔ Devolving powers to Scotland, Wales and N. Ireland
◆ Creation to some extent of separate parliaments
◆ Powers devolved may also be withdrawn by the Westminster Parliament — no
loss of Parliamentary Sovereignty.
2) Largely unwritten in character
◆ No one single document
● Several documents central to the UK Constitutional Law
○ Magna Carta 1215
○ Bill of Rights 1689
○ The Human Rights Act 1998
○ The Succession to the Crown Act 2013
◆ UK did not experience foreign rule, revolution or regime change
◆ By contrast, the British Constitution has evolved over a long period of time,
reflecting the relative stability of the British polity. It has never been thought
necessary to consolidate the basic building blocks of this order in Britain. What
Britain has instead is an accumulation of various statutes, conventions, judicial
decisions and treaties which collectively can be referred to as the British
Constitution. It is thus more accurate to refer to Britain's constitution as an
'uncodified' constitution, rather than an 'unwritten' one. (The Constitutional Unit
of the University College of London)
◆ ‘If a constitution means a written document, then obviously Great Britain has no
constitution. In countries where such a document exists, the word has that
meaning. But the document merely sets out the rules determining the creation
and operation of government institutions, and obviously Great Britain has such
institutions and rules. The phrase ‘British Constitution’ is used to describe those
rules.’ — Sir Ivor Jennings in Law of the Constitution
➔ 3) Parliament in supreme (or sovereignty of parliament)
◆ In the absence of a single constitution document, sovereign power is vested in
Parliament is the law-making body and the arm of state that overpowers the
remaining arms of state – Parliament prevails as the sovereign authority on law
and government. The supremacy of Parliament is one of the twin pillars of the
British Constitution (A.V. Dicey)
 ◆ How courts control Parliamentary Supremacy: Ouster Clause
● Anisminic Ltd v Foreign Compensation Commission [1969]
● R v Investigatory Powers Tribunal
◆ Challenges to this doctrine:
● S2 of the European Communities Act 1972
● S3 of the Human Rights Act 1998
● S4 of the Human Rights Act 1998
● Ouster clauses:
➔ 4) Flexible in nature
◆ ‘Every law of every description can be changed with the same ease and in the
same manner’ by the Westminster Parliament — A.V. Dicey
◆ ‘the British Constitution was not made, but was grown.’ — Sir Ivor Jennings
➔ 5) Exhibits mainly but not completely separated powers
◆ The executive, judiciary and legislature are largely separate in their powers,
functions and duties although overlaps exist.
➔ 6) Monarchical
◆ Crown as the head of the state (symbolic role today)
➔ 7) Rule of Law and Responsible Government
◆ The doctrine of rule of law underpins the British Constitution.
◆ Under this doctrine, the rule and reign of law is preferred over the rule and reign
of man/institution.
● Propounds the supremacy of law.
● The other one of the twin pillars of the British Constitution, alongside
Parliamentary Supremacy

Sources
➔ Written/ Legal Sources: Main sources of the British Constitution.
◆ Acts of Parliament/ Primary Legislation/ Statutes + Secondary Legislation
(May be repealed or amended — less certainty but greater flexibility)
● Constitutional statutes:
○ Magna Carta 1215, Petition of Rights 1628, Bill of Rights 1689,
Act of Settlement 1700, Parliament Act 1911 & 1949, European
Communities Act 1972, Human Rights Act 1998, Scotland Act
 1998, House of Lords Act 1999, Constitutional Reform Act 2005,
Fixed Term Parliament Act 2011, Succession to Crown Act 2013,
The European Union Referendum Act 2015.
● Jackson v AG (2006)
○ The applicant challenged the validity of the Hunting Act 2004
◆ Passed w/o the approval of the HOL.
○ However, the Parliament Act 1949
◆ permits legislation to be passed and received Royal Assent
◆ Even w/o HOL approval (upon 1 year expiry)
◆ Applicant also challenged this act, saying that it was also
passed w/o HOL approval.
○ HOL upheld the validity of both Acts — due to Parliament Act
1911
◆ This act allows bills to be presented for Royal Assent w/o
HOL approval
◆ After passing by HOC in 3 successive parliamentary
sessions and 2 years have expired.
○ Lord Bingham: while parliaments can be bound by procedural
requirements placed on them by previous parliaments, statutes
passed by Parliament must be accepted as valid law unless
repealed.
◆ Constitutional statutes will usually remain as sources to the
constitution and are upheld and applied by courts, w/o.
Parliament rarely repeals constitutional statutes.
◆ However, Parliament has sovereignty to do so at the end of
the day.
● The judiciary has no power to question the validity of an Act of Parliament
○ However, delegated or secondary legislation may be subjected to
judicial review.
○ To ensure organisations act intra vires (within powers conferred on
them by an Act of Parliament).
◆ Judicial Decisions/ Judge-made Law/ Case Law
● Entick v Carrington (1765)
● Council for Civil Service v Minister of Civil Services (1985)
 ● Jackson v AG (2006)
● R v A (2001)
● Burmah Oil v Lord Advocate (1965)
➔ Non-written Sources:
◆ Conventions
● Norms and practices that have been followed for many years
◆ Royal Prerogatives
● Unwritten powers of the crown
● Nowadays, some of these powers are exercised by the PM on behalf of
the Queen
○ Power to declare war or enter into diplomatic ties.

Problems with the uncodified British Constitution

Problem Elaboration

- Difficult to know what the state of the - Difficult to identify the provisions of the
constitution is. constitution.
- Whether a power or right truly exists is
vague.

- Easier to make changes. - High chance of changing the

constitutional principles at the whim
and fancy of the ruling party.
- To amend a constitution usually
involves a more elaborate procedure
than amending a statute.
- Both houses and all parties
must agree
- Referendum maybe needed

- Parliament fills in the vacuum of the - Parliament might be too powerful or

absence of the document. unchecked — due to its unlimited
 - Supremacy over other state powers.
institutions. - Dangerous: government is
also part of the legislature and
legislates rules as well
- No specific procedure for the
repealment or amendment of
legislation of constitutional
importance.

- Monarch - The exact extent of the monarch’s

powers and limits thereof is not clearly
spelt
- out.

How to codify?
➔ Need NOT put all the current major, minor, written and unwritten sources together in one
document, specifying detailed composition, procedure, powers, rights of all components
of the government and people.
◆ Too complex
◆ Overwhelming document
➔ Suggestions: A Written Constitution for the United Kingdom by John Kwan of The
Wilberforce Society.
◆ A constitution that entrenches fundamental rights because the HRA 1998 can be
repealed anytime; the ECHR rights need to form part of the British constitution.
Courts have been upholding rights and they are consistent with historical laws of
the UK since the Bill of Rights 1689.
◆ To better clarify the constitutional arrangements & roles of different branches of
government.
● Does not necessarily have to specify composition or structure of
institutions but can expound general ideas of separation of powers.
◆ Alternatives: Enact a new bill of rights which focuses on rights rather than
institutional structures.
 ◆ The constitution should entrench the judiciary’s power — the power to interpret
the constitution, to strike down any rule incompatible to it.
● Better check on the Executive’s power.

Arguments for codification

➔ Clarity and certainty
◆ composition , powers and roles of all the organs of the state.
➔ Lord Hailsham: Overcome the fear of elective dictatorship
◆ Unchecked sovereignty of parliament
◆ Lack of separation of powers between the Executive and Legislature
➔ Check and balance mechanism
◆ Over the arbitrariness of Parliament
◆ Lord Cairnwarth in R v Investigatory Powers Tribunal and others [2019]:
relationship between Parliament and the courts is governed by the accepted
principles of the ‘rule of law’
● No principle more basic to our system of law than the maintenance of
[the] rule of law itself
● Constitutional protection is afforded by judicial review.
➔ Judicial independence — not inferior to Parliament
◆ Even though R v A (2001) shows the power of the judiciary to downplay
Parliamentary Supremacy
◆ Jackson v AG (2006) reminds us that judges’ powers may be ousted by
Parliament because they are also bounded by such legislations and thus must
uphold them
● Lord Woolf’s opinion (extrajudicial comments): ‘if Parliament did the
unthinkable, then I would say that courts would also be required to act in
a manner which was without precedent.’
● Lord Steyn has said that the judiciary might have to “qualify” the principle
of Parliamentary Supremacy should Westminster seek to abolish judicial
review of flagrant abuse of power by a government or even the role of the
ordinary courts in standing between the executive and the citizens.
 ◆ ‘...growing government encroachment on judicial independence, warning that
judges may need a written constitution to protect themselves from further political
interference.’ — Lord Woolf.
➔ Clearer separation of powers
➔ Better protection of Human Rights and fundamental liberties
◆ HRA 1998 may be repealed anytime
◆ Mr. Justice Sullivan’s decisions on the Afghan Hijacker’s Case and Tony Blair’s
response.
◆ Lord Alexander: ECHR should be directly incorporated in the form of a Bill of
Rights
➔ Easier to educate the people
◆ Workings of organs of the government
◆ Rights as citizens
➔ Important constitutional conventions substantiated by law and legal principles to
be codified.
◆ If not, it can be easily broken by the unchecked powers of politicians.
➔ Clarify the Royal Prerogatives and the role of the monarchy
◆ Democratic society now — is it constitutional to maintain such powers?
◆ Burmah Oil v Lord Advocate (1965)
➔ ‘We can learn a great deal from the US example, and particularly with regard to the
enviable notion of civic duty that seems to flow so strongly through American veins. It is
made much easier to fulfil your civic duty when you have a clear sense of to what you
belong, and what is expected from you... In the UK, many duties and responsibilities
already exist in statute, common practice or are woven into our social and moral fabric.
But elevating them to a new status in a constitutional document would reflect their
importance in the healthy functioning of our democracy.’ — Jack Straw.
➔ Extra: Ouster Clauses
◆ Lord Carnwarth:
● Parliament cannot entrust a statutory decision-making process to a
particular body but then leave it free to disregard the essential
requirements laid down by the rule of law for such a process to be
effective
● Judicial Review needed if rule of law is to be maintained.
Arguments against codification
➔ Take up unnecessary time and high financial expenses
◆ Kwan: Whole fundamental process could be very lengthy, expensive, absorb
huge media attention and government energy and generally act to the detriment
of other areas of government.
◆ Constitutional Commission employment — expensive
◆ Costs not justifiable if the end product is to compile documents already on the
books
◆ Jack Straw has said that a written constitution must be written on a "bipartisan,
consensual basis" and could take up to 20 years. Resort to referendums may be
necessary if reforms were too sweeping.
➔ Rigidity
◆ Rodney Brazier: the UK has ample constitutional statutes to serve as codified
constitutional documents – a written constitution is unnecessary – Parliament is
well-equipped to pass constitutional statutes as and when needed.
◆ Foley: Codification will result in placing flexible rules such as conventions in
written form, thus depriving the British Constitution of its flexibility. Some
important rules must be left uncodified/ unsaid in writing, to enable change with
time. To codify everything will “freeze” the constitution and set it in stone.
◆ “... such flexibility results, in part, from the use of conventions whereby ancient
ones can be discarded with ease and constitutional changes brought about with
the minimum of constitutional formality” — Hilaire Barnett.
➔ No historical reason
◆ England has never been subjected to alien rule, and after two World Wars, has
managed to continue upholding a responsible, legitimate and constitutional
government.
◆ William Hague: “...we already have internal stability and democratic
accountability, and Britain has been well served by its unwritten constitution”.
➔ Increases the authority of the judiciary (courts gain supremacy)
◆ Resolve constitutional disputes
◆ Rule of whether the government has complied to the constitution
◆ Interpret and determine constitutional matters
◆ The constitution will have to be worded in broad terms and judges will be
dragged into the political arena, asked to determine political matters.
● Undemocratic – judges are not elected.
◆ ‘I do not believe that the public want issues which most of us would regard as
political being resolved by the courts - capital punishment, abortion, racial
discrimination - these are issues which the US Supreme Court has resolved, and
which we rightly expect parliament to resolve.’ — Lord Falconer.
◆ ‘power of interpretation should perhaps not be vested in the judiciary which
nevertheless consists of unelected judges.’ — John Kwan.
➔ Too strict separation of powers
◆ Interfere with the proper administration of a country
➔ Impracticality
◆ John Kwan: To codify the British Constitution now could result in a very lengthy
document and the length could just make it impractical.
➔ Biaseness
◆ John Kwan: a constitution now would just enshrine the present state of affairs
rather than what should be the state of affairs for all time – the preferences of the
present ruling party will prevail – biased