The Unwritten UK Constitution

Constitutional law concerns the role and powers of institutions within the state and the relationship between its individual members. At any point in time, it will reflect the moral and political values of the people it governs. A constitution will generally divide powers among different institutions of government; a legislative branch to make the law, an executive branch to implement the law and a judicial branch responsible for interpreting and upholding the law. Arend Lijhat theorised that there are three dimensions to a constitution: (1) written and unwritten, (2) flexible vs rigid and (3) Judicial Review vs no Judicial Review. The United Kingdom (“UK”), whilst many would argue it does not have a constitution, they are wrong, it undoubtedly does – it is just unwritten. Lijhart’s theory goes a long way to explaining the basic principles of a constitution which will be discussed in greater detail in a bid to draw comparisons whilst discussing whether the evolutionary and flexible nature of the unwritten UK Constitution is its greatest strength.

The first dimension proposed by Lijhart is the idea of whether a constitution is written or unwritten, also described as a codified or an uncodified constitution. A codified institution is when all major principles underpinning the political system are contained within one single document, for example, the United States of America’s Constitution (“US”). This type of constitution is usually created at a pivotal time in that nation’s history; Independence in the US’ case or a revolution in the case of France. Generally this type of constitution will have a two tier legal system; the constitution has a higher status that all other law and concerns who has power, institutional relationships and rights of its citizens. These are safe guarded and entrenched. Below the higher laws are ordinary laws which concern the relationships between citizens, administration of the state and criminality etc, these are easily changed without special procedure and are not safeguarded. The UK constitution would be described as an uncodified one as there is no single place to find the principles given that they come from different sources; Statutory Law, Common Law and Reform. Arguably, the term ‘unwritten’ is misleading given that all laws are recorded and published, just across different books and not in one single place. One of the key differences is that an uncodified constitution is flexible in its very nature given that it is constantly evolving and changing with society. There are no specific provisions needed in order to amend it which allows it to evolve over time, however this does also make it susceptible to abuse.

The development of the UK Constitution began with the ‘Magna Carta’ in 1215. The Magna Carta, a document land barons forced the King to sign in order to protect landowners’ rights from unfair treatment by the monarch, was the first official document to limit the monarch’s powers. Although It gave little rights to the common people, some elements of the document remain on the statute books today. It is often cited as being the foundation of the British Constitution and other countries have adopted codified constitutions tracing back to the Magna Carta.

The UK Constitution is sourced from a variety of places; Statutory Law such as; Parliament Act [1911] , European Communities Act [1972] and Scotland Act [1998] ; Common Law or ‘judge made law’ derived from judicial decisions and Royal Prerogatives, powers previously used by the monarch before they were passed on to the Prime Minister. These can be used to appoint and dismiss ministers, dissolve parliament and declare war. Other common law examples are; Freedom of Speech and the Doctrine of Parliamentary Sovereignty. Another example of a source are Works of Authority such as recognised guidance on the constitution, A.V. Dicey, An Introduction to the Study of Law and the Constitution [1885] and Hansard, Erskine May. Conventions and EU Law also go to the very route of the UK Constitution. Any major constitutional changes will be put to a referendum before parliament acts upon them; The Salisbury Convention resulted in the House of Lords Reform. EU Law has modified Parliamentary Sovereignty and it is questionable as to whether it is still fully intact. EU Law prevails over domestic law; Factotame the European Court of Justice (“ECJ”) rules that national courts could disapply UK law if it conflicted with EU law.

The main principles of the UK Constitution are; Parliamentary Sovereignty, The Rule of Law, Unitary State and Parliamentary Government. Parliamentary Sovereignty is the cornerstone of the constitution and it is the principle that Parliament is the ultimate source and power within the political system. Parliament is able to legislate on any matter of their choosing which cannot be overturned by a higher authority but they cannot bind their successors. F.F. Ridley’s statement simplifies the role of Parliament adequately;

“If we [in Britain] have a constitution at all, it is a one sentence constitution stating that parliament can make or repeal any law whatsoever”.

While Ridley’s statement supports the idea of a flexibility within the law as per Dicey’s earlier statement, it also gives rise to the question as to whether the UK is actually an elected dictatorship. However, successive parties are not bound by the previous government’s decisions and can repeal any law at any time should it appear to be unfair. An advantage of this is that emergency laws can be passed quickly when required, The Terrorism Act [2007] was a rushed piece of legislation in response to an emergency situation involving public safety.

A negative in respect of Parliamentary Sovereignty is that Judicial Review is limited, as opposed to the US Constitution where it is an important feature. With little or no judicial review, there is no way to determine what is unconstitutional.

The Rule of Law governs the relationship between the state and its citizens, it ensures that state action is limited and responsible. All citizens must obey the law and are treated equally under it, they have the right to a fair trial and to take action against a local authority or the government if they feel they have been improperly treated whilst also providing protection from government action. It allows for courts to hold government ministers, police officers and public officials accountable for their actions if they have acted outside the law or been negligent in their duty. Most importantly, it allows for Statutory Law to be interpreted and applied by independent judicial members who are free from political interference. It provides for some separation of the legislature from the judiciary, making the constitution more flexible as the judiciary are the ones to interpret the law made by parliament when presiding over a case allowing a degree of flexibility in the decision making process and the law itself. In theory, Parliamentary Sovereignty enables Parliament to abolish any rights of the citizen by changing or amending the law, they have done this already by restricting the right to a fair trial to a ‘right to a trial by jury’ by way of the Criminal Justice Act [2003] , they also extended the time limit the police can detain a terror suspect to 90 days without charge from the mere 24 hours or 36 hours for an indictable offence, it was and still is for non-terror suspects.

The third principle is that the UK is a Unitary State. Constitutions can be classified in accordance to how their political power is divided. With a federal constitution, the powers are separated by federal government, the power is then diffused rather than concentrated into one body or organisation like a unitary constitution. In this sense, the US constitution is more flexible as each individual state is able to make its own laws with the Constitution being the overriding force, which can result in disputes but the constitution will prevail. An example of this could be the fact that some states cater for Same Sex Marriage whereas others do not, the power diffused to each state has allowed them to make the decision themselves. The UK, having a unitary constitution means the power is all located within one body, in the UK’s instance, with the legislative body; Parliament. UK Sub national institutions do not have autonomous powers that are safe guarded and local authorities have little or no power. All the power can be located at Westminster where Parliament is located.

This in itself can be problematic due to Parliamentary Sovereignty as the ultimate power lies with Parliament, and by introducing a new Act, the basic principles of the UK Constitution could alter quite easily due to it not being entrenched or safeguarded. The US Constitution is more rigid in this regard.

The final principle is Parliamentary Government, UK Parliament is an elected body, following an election; the majority party with the most seats in the House of Commons becomes the newly appointed government. When in power, they have the power to control the legislation including repealing any acts made by the previous government or introducing new ones. However as Legal Sovereignty lies with Parliament, their approval must be given for any new law to be passed as certain procedures must be followed. A. V. Dicey said;

‘[a flexible constitution] is one which every law of every description can be changed with the same ease and in the same manner by one and the same body’.

The fact Parliament alone controls the legislation is arguably flexible in accordance with Dicey’s statement as Parliament are the body which make and change law in the same way.

Being an unwritten constitution, the UK constitution is highly adaptable, flexible and evolutionary. This is proven in the fact it has worked effectively for many years and it can adapt to a changing world without major upheaval. When society or values change, the constitution is able to change with it without delay or confusion. This is preferable to a written constitution, unlike the US, where a simple change could prove difficult. Conservatives view the constitution as an organic body of rules rather than an artificial creation, it has evolved over time to reflect the true values of British people while also providing for a strong and effective Government at all times.

Whilst it is advantageous, it also has its weaknesses. The uncodification of the constitution creates problems with a lack of clarity and interpretation, as it is not always clear when the government has acted unconstitutionally. The lack of separation of powers proves for bias to occur as there is a crossover of members of the judiciary being members of the House of Lords and residing when a new law is being passed, their opinion may be overshadowed by their political views. Due to the power being centralised in the centre with the most part being delegated to Parliament, there is a risk that a lack of restraint has the potential to be dangerous insofar as individual and minority rights could be repealed on a whim by Parliament. Whereas, If it was codified the key principles would be written down and wouldn’t be so easily changed, such like the US constitution and it’s ‘Bill of Rights’.

A move into a codified constitution has been discussed and favoured by many, in particular by Charter 88 (unlock democracy), Labour and the Liberal Democrat Party. Their reasoning could be argued to be quite selfish in that they had growing dislike over the UK election methods stating they were unfair, no party since the war has had the majority vote, an increase in demands from Scotland, Wales and Northern Ireland for less control from London. Earlier this year the Scottish Referendum took place in which Scotland’s inhabitants took a vote for independence, the result was a resounding no! Other reasoning included their dislike of the role and influence of the House of Lords and the Monarchy, and changes brought about due to being a part of the European Union (“EU”).

There are currently talks of an EU Referendum taking place with a view to the UK removing itself from the EU, the UK’s membership has many negative and positive factors some of which have a bearing on the constitution. EU law overrides UK Law if there is a conflict, which means not only is EU law enforced within the European Courts but also by UK Judges at national levels. There is apperception that this has made the UK Courts more powerful as they can refuse to uphold the domestic law in favour of the EU law. The legal status of the citizens has changed, not only are they able to air their legal grievances at a domestic level but also at a European Level. This is a significant factor as any judgement given at European level will also have an effect on the rest of Europe. Whilst this is a positive that citizens also have further recourse should they not be happy with the Supreme Court’s decision, it also may impact negatively on other members of the EU given that the UK is quite different from other member states in respect of its values and traditions. A favourable decision in respect of an English case may not be favourable to a case in France and vice versa. The overarching theme for changes appears to be Parliamentary Sovereignty, whilst in theory this feature remains unchanged as Parliament could pass law to remove the UK from EU and Community Law and the law would cease to apply at a national level. In practice the social and economic implications that withdrawal renders are inconceivable. As such, it is possible to argue for the foreseeable future and all practical purposes, the British parliament is no longer sovereign.

In conclusion, the flexibility and evolutionary nature of the UK constitution is one of its main strengths. Whilst a lack of clarity and other issues may make it appear more favourable to move to a codified constitution. The very fact the UK constitution is unwritten is what makes it as flexible as it is able to change so often and fluidly with little upheaval. It has worked for many years and some aspects have even been adopted by other countries.

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About ambaroyle

Full time LJMU Law student. View all posts by ambaroyle

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