The British Constitution
The British Constitution
Editor’s comments:
Without knowing the basics, we will never be able to grasp the entire
subjects. Therefore it is of extreme importance that students be well versed
with this topic. Due to the changes in
the
Introduction - What is a
Constitution?
Constitutional law is the
law relating to the constitution. There are many competing definitions of what
a constitution is. The study of constitutional law is chiefly concerned with
the study of the constitution of nations in general, and
Thomas Paine said, “A
constitution is not the act of government, but of a people constituting a
government, and a government without a constitution is power without right…..A
constitution is a thing antecedent to a government, and a government is only
the creature of a constitution.”
Lord Bolingbroke said, “By
constitution we mean, whenever we speak with propriety and exactness, that assemblage
of laws, institutions and customs, derived from certain fixed principles of
reason, directed to certain fixed objects of public good,that compose the
general system according to which the community have agreed to be governed.”
The definition offer by Professor K.C. Wheare (1966) is “… the whole system
of government of a country, the collection of rules which establish and
regulate or govern the government”. The purpose of a constitution is
said to be threefold. A constitution defines the power of the state
institutions, it safeguards the citizen fundamental rights and it provides a
covenant and aspiration of a state or nation.
In simple language,
constitution is basically a set of rules which identify and govern the
functions and powers of state institutions (executive, legislature and
judiciary) .By determining their functions and powers it provides safeguard to
the relationship between the state and the citizen.
Therefore, the word
“constitution” can be used in the two senses:
Broad sense – System of
Government, including legal and non-legal rules that exists in a country;
Narrow sense – Document or
set of documents that lays down the aspirations of the country, the principle
organs of government and their relationship one to the other, and the relationship
between the government and the governed.
In the narrow sense, the
Whether or not a state has a
written constitution, the actual protection of individual rights are protected
by the democratic political process, political practices and norm of acceptable
government conduct, which while not having the force of law, provide
constitutional standards, which determine the respect accorded to individual
rights. Thus, the difference between an unwritten and written constitution, are
one of form, but certainly not of substance.
The important characteristic
of a written constitution is that it allows for these rules to be recognized
and identified without having to search through other varying and differing
historical facts for evidence of a constitution.
The British constitution is
uncodified (unwritten) it is a combination of the written and unwritten sources:
Characteristics of a
Constitution
According to F.F.Ridley, the
characteristics of a constitution are as follows:-
It establishes, or
constitutes, the system of government. Thus, it is prior to the system of
government, not part of it, and its rules cannot be derived from that system.
It therefore involves an
authority outside and above the order it establishes. In democracies, that
power is attributed to the people, on whose ratification the legitimacy of a
constitution depends, and with it, the legitimacy of the governmental system.
It is a form of law superior
to other laws because it originates in an authority higher than the legislature
which makes ordinary law and the authority of the legislature derives from it.
It is entrenched because its
purpose is generally to limit the powers of government, but also because of its
origins in a higher authority outside the system.
It can thus only be changed
by special procedures, generally (and certainly for major change) requiring
reference back to the constituent power.
James Bryce defined a
constitution as a framework of political society organized through law, he
distinguished between “statutory” and “common law” types of constitution. A
“statutory” constitution will have all the characteristics stated above. The
idea of a “common law” constitution is one that just grows and develops over a
period of time, very much like the common law itself.
Characteristics of UK
The history of the
Here are some of the
characteristic of UK Constitution:
1. The Constitution is not `written' in the sense of having a single
document defining the powers of government and rights of individuals. Nevertheless
many sources of constitutional law are written and these together with the
non-legal rules make up the British Government.
2. The constitution is flexible and based on continuity of
development.
3. In the absence of a written constitution having the status of fundamental,
or higher law, the concept of Parliamentary sovereignty or legislative
supremacy represents the cornerstone of the constitution.
4. There is no strict separation of powers between the executive,
legislature and judiciary, although a separation of functions exists and the
concept retains importance under the constitution.
5. The
6. The
7. The legislature is bicameral in nature.
8. The judiciary is independent.
Unitary State
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One seat of power which
control everything |
Have a central government
and state government. |
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No state government |
Some issues, the state
government has the powers |
|
May have district/city
council, but they are still under one state |
In some other issues, the
central government has the powers. E.g. |
Table 1: The Distinction between Unitary State and Federal State
Sources of the UK
LEGAL
SOURCES
Act of Parliament – this is the
most important sources in defining the roles and powers of the state
institutions and upholding the freedoms of
Magna Carta 1215
Bill of Rights 1689
Act of Settlement 1700
Act of Union with
Act of Union with
European Communities Act
1972
Human Right Acts 1998
Northen
Government of
House of Lords Act 1999
Constitutional Reform Act
2005
Case Law - Judicial Precedents
It is judges’ roles to
interpret the law to fit within the constitutional framework. This is done
through interpretation of both the legislation, judicial precedents and
judicial reviews on delegated legislation that has constitutional importance.
Examples of case of
constitutional importance :
Anisminic v Foreign
Compensation Comm (1960)
AG v Jonathan Cape Ltd (1976)
British Airway Board v Laker
Airways (1977)
Stockdale v Hansard (1839)
Sherriff of Middlesex Case (
1840)
Pickin v British Railways
Board (1974)
Entick v Carrington (1765 )
R v Secretary of State for
Transport Ex-parte Factortame Ltd (1990)
European Community Law
EC law as a source may be
found in:
Treaties: ( for example Treaty
of Rome 1957)
Regulations
Directives
The European Communities Act
1972 has great significance for the constitution.
4. Royal
Prerogative
The prerogative powers of
the Crown are those powers which arise out of the common law which are unique
to the Crown. Most of these powers are now exercised by the government in the
name of the Crown.
Two definitions of
prerogative powers :
By A.V Dicey – “the residue
of arbitrary and discretionary powers legally lest in the hands of the Crown
which being exercised by the government in the name of the Crown entails every
act which the executive government can do without the authority of an Act of
Parliament”
By Blackstone – that special
pre-eminence which the King hath over and above all persons and out of the
ordinary course of the common law…and…only applied to those rights and
capacities which the King enjoys in contra distinction to others.
NON
LEGAL SOURCES
1. Conventions
Much of the constitution is
regulated not by law but by conventions.
These unwritten obligations
and rules are central to the operation of the constitution.
Definition : a non- legal rule which imposes an obligation
on those bound by the convention, breach or violation of which will give rise
to legitimate criticism and the criticism will generally take the form of an
accusation of “unconstitutional conduct”
These traditional practice
or rules that governs the government does not have the legal effect of law.
It provides the constitution
a degree of flexibility so that evolution can take place without formal changes
to the legal structure of the constitution.
2. Authoritative textbooks
The writings of scholars,
experts and academicians on both the constitution of the
However, the authority of
scholarly literature is only persuasive, though some academic writers really
have influenced judges.
Example: A.V. Dicey, Sir
Ivor Jennings,Blackstone, David Hume, Prof S.A. De Smith and the 3 editions of
his book on judicial reviews of administrative action.
Should the UK
Arguments For
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Arguments Against
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A written has its
practical advantage because the functions, powers and more importantly the
limits of the governments power will be clearly defined under a written
constitution. Hence, it can prevent abuse of power by the government.
Example: Burmah Oil v Lord
Advocate |
History has shown us that
a written constitution is not a guarantee that the rights of the citizens
will be protected against dictators or other forms of anarchy or chaos. What
really makes the difference therefore is the attitude of the people, the
character of the leader, the history of the country, and the overall
political and social circumstances. A mere piece of paper is no guarantee or
safeguard against tyranny, totalitarianism, or autocracy. |
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Clarity - If there is a
written constitution, it will be easy for the people to know their
rights.--even the common man on the street will know his rights. In the
absence of a written constitution, it will be difficult to distinguish
precisely what is and what is not a ‘constitutional issue’. |
By having a written
constitution, does not mean that everything will be absolutely clear. It was
written in an ambiguous form and it can only be clear after referring to text
or judicial decision. |
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Better protection for
Human Rights. HRA 1998 may not be sufficient because it’s just another act of
parliament that at anytime can still be repeal. Compare to a written constitution,
it will be more difficult to amend. (Points to note: On the other hand, the
government will most likely not to amend or repeal the HRA 1998 as it will be
a political suicide. Thus there is still some security) |
It is very difficult and
tedious to amend a written constitution. The law will then be inflexible as
laws cannot develop accordingly to the current society. Written constitution
will be rigid as the old laws might be abused today |
Points to Ponder:
Although The Human Rights
Act 1998 was marked by an unusually high quality of debate and was regarded
as constitutionally important, technically speaking, it is no different in
status than any piece of domestic legislation. In practice therefore, the
constitution depends far less on legal rules and more on political and
democratic principles. A important question would be: “Can the politicians be
trusted to observe and adhere to these informal restraints on their power?
F.F. Ridley has pointed
out "In the absence of legal criteria that distinguish constitutional
law from other laws, the definition becomes so broad that it defines nothing
at all. In the context of the British legal system, the term constitutional
law is thus literally meaningless." What is your view on this?
What if there is a change
of government for example if the Conservative Party takes charge after a new
election, would all these ambitious plans for the constitution fall apart? Is
there going to be a return to the dark old Thatcher era? Tips:
Consider KD Ewing’s
statement :
After all the Human Rights
Act 1998 and all the various reforms planned by the Labour Government to
quote K.D. Ewing “Is a metaphor for a much deeper transformation of the Labour
party and indeed the principles of democratic socialism to which the party is
constitutionally committed to”. |