Sources of the British Constitution

Sir John Laws explains the constitution as the set of laws which recognises the ruler and defines the relationship between the ruler and the governed, describes the nature and extent of the powers and duties of the ruler and sets terms for the proper exercise of the powers. He goes on to explain that the British constitution is an “amalgam of common law and statute” in the absence of a “sovereign text.” One of the unique aspects of the British constitution is that it is uncodified, unwritten, and not a single document that contains all the constitutional principles. This sets the UK apart from other democracies like the United States and Australia, which have a single source of constitutional law. The UK’s uncodified constitution is based predominantly on practice and precedent as articulated in statute and Judicial resolution, a parliament with the power of the Crown enacts laws which no extra body is able to alter. Although two important sources of constitutional law, Royal Prerogative, and Conventions, are unwritten, the majority of the British constitutional law is contained in a number of historical and contemporary documents and legislations. This essay discusses the range of legal and non-legal sources that form part of the British constitution.

British constitutional law is contained in formal, material and historical sources. Historical sources are in the nature of legal and non-legal sources. Conventions, such as the principle of parliamentary sovereignty are non-legal sources of the British constitution. The sources of British constitutional law includes the Acts of Parliament, or Statutory law main UK form of national law which must receive Regal Consent by the Monarch to convert to law, however not all of the are constitution in nature, common law a legal precedent which is forced by judges verdicts in the Court,

external sources like EU law, Royal Prerogative and conventions. One of the significant qualities of the constitution is its unwritten character, which makes it a uniquely political constitution, which is evolutionary in nature and flexible.

Historically, the British constitution has developed through different written and non-legal sources of law. A number of historical documents and older sources have led to the development of the constitutional law in England. One of the early examples is the Magna Carta 1215, which contained certain guarantees to the landholders, and is considered to be the originator of due process principle in the English and American jurisprudence because it included an assurance that individuals would not be imprisoned or punished except by the law of the land. Other historical constitutional law documents include the Petition of Rights 1628, the Bill of Rights 1689, the Act of Settlement 1700, and the Treaty of Union 1706. Different principles of British constitutional law were developed through these sources of law, including the rights and liberties of the individuals in Petition of Right 1628, the primacy of the parliament in Bill of Rights 1689 and the principle of judicial independence in Act of Settlement 1701.

Apart from these historical legal sources, there are some contemporary legal sources that include the British constitutional law. These include the European Communities Act 1972, the Human Rights Act 1998, and the Constitutional Reforms Act 2005. The first two of these sources were enacted as per the obligations of the UK as a member of the European community. The European Communities Act 1972, Section 2(1) contains an important principle of constitutional law, this being the principle of compatibility between the statutory law and European law. British courts have adhered to this principle in different judgments, notably, the Factortame case and the Belmarsh case. The Constitutional Reforms Act 2005 has made significant changes that impact the separation of powers principle between the three government organs.

The principle of separation of powers, although not a written constitutional law, is reflected in the relationships between the state organs, which are, the legislature, the executive and the judiciary. The British Parliament performs four primary duties: legislation, taxes and government budgets, scrutiny of government administration, and debate on social and legal issues. The executive branch is headed by the Prime Minister and includes his cabinet and local government. The judiciary consists of professional judges with judicial independence. The relationships between these three organs are regulated by the British constitution through a system of law, conventions and common law.

Separation of powers has not been strictly applied in the British constitutional law, which for the most part has chosen to draw a close nexus between the executive and the legislative organs instead of strictly segregating the powers of these two organs. This has been noted by Bagehot in the words that “the efficient secret of the English Constitution is the close union, the nearly complete fusion of the executive and legislative powers.” Prior to the passage of the Constitutional Reforms Act 2005, the principle of separation of powers was not a key constitutional law. This law led to changes to the office of the Lord Chancellor, who was earlier part of all the three organs. Prior to the passage of the Constitutional Reforms Act 2005, he was the head of the judiciary, cabinet member and speaker of the House of Lords. These positions have been changed under the Constitutional Reforms Act 2005, which replaced Lord Chancellor’s position as head of the judiciary and speaker in the House of Lords. Furthermore, the UK Supreme Court is now the highest court of the UK instead of the House of Lords. These changes have a significant impact on the separation of powers.

Some of the key constitutional law provisions are to be found in the conventions, including the principle of parliamentary sovereignty and the Westminster model of government. The principle of parliamentary sovereignty was firmly established by the Bill of Rights in 1689. The Reform Act 1832 led to the incorporation of the principle of responsible government, with the Executive being a part of the Parliament and also being accountable to the Parliament. Despite not being a written law, the principle of parliamentary sovereignty has been called the “bedrock of the British Constitution.” This indicates how conventions are important sources of constitutional law. The principle of parliamentary sovereignty is essential to understanding the relationship and interworking between the Parliament, Executive and the Judiciary. It is an important aspect of the Westminster model of government, the other key characteristics of which include: control of Executive by the majority party; dominant central government; and ministerial responsibility. Another key aspect of the Government is its unitary and centralized nature, which is also established by convention.

Another key aspect of the British constitutional law is the principle of judicial review and the doctrine of ultra vires. These principles have been developed as a part of the convention of the doctrine of parliamentary sovereignty but through the means of common law, which is also a source of the British constitutional law. The convention of parliamentary sovereignty provides that the British Parliament is the supreme authority for making the law of the land, which can make law on any subject matter, does not bind future parliaments (because parliament is supreme), and is outside the domain of the courts under judicial review. The convention of parliamentary sovereignty came to be recognised through judicial authority and became a part of the common law. As an extension of this principle, the courts in the UK considered parliamentary law outside the scope of judicial review of the parliamentary law as it is outside the scope of review. Eventually, the doctrine of parliamentary sovereignty came to be recognised as a principle constructed by the common law.

Interestingly, although statutory law is not open to judicial review, the principle of rule of law has been used to define the contours of what can be reviewed by the courts; Lord Bingham recently declared it is the courts that have to define the rule of law. Since the UK is a member of the international community, particularly the European community, international law has been identified as one of the eight principles of the rule of law. Triggs notes:

“Lord Bingham appreciated the impediments to applying international custom without the consent of parliament and proposed in R v. Jones and that international law might better be understood as a ‘source’ of English law upon which the courts could draw”.

The above statement is significant when it is considered that even before the passage of the Human Rights Act 1998, which laid down the principle of compatibility between the domestic legislation and the European Convention of Human Rights, the English courts upheld the superiority of the European law over Statutory law, which can be argued to be a dilution of the principle of parliamentary sovereignty. Lord Bingham did so in Chief Constable of Kent Constabulary v Kent Police Federation Joint Branch Board and Another when he held that Article 5 of the European Convention of Human Rights embodies principles already protected by the British law even if the convention was not enforceable in the UK. It may be pointed out that in the traditional sense, judicial review has been considered to be a supplement to parliamentary sovereignty, with the use of the doctrine of ultra vires to test the validity of executive action by seeing whether it is accorded to the law laid down by the parliament. The changing and flexible nature of the British constitution can be seen in the way the courts have used the principle of rule of law by linking it to international law for reviewing the decisions of the parliament irrespective of the principle of parliamentary sovereignty.

Three important points can be made here in pursuance of the above discussion. Firstly, this discussion indicates that the common law is an important source of the British constitution and it regulates the relationship between the judiciary and other organs through judicial review. Secondly, external sources like the European law are also sources of British constitutional law and are so recognised by the courts. Thirdly, British constitutional law is flexible and evolving, which may be linked to the fact that the British constitution is not codified and written. This allows the constitution to evolve. The question is whether it is desirable that the constitution be unwritten.

Royal prerogatives are also the non-legal sources of British constitutional law. These are the issues under the authority of the monarch acting on the advice of the Prime Minister and the Cabinet. The Prime Minister and the Cabinet are responsible to the parliament for the advice and decision that is given under the Royal prerogative. Like the doctrine of Parliamentary Sovereignty and the Westminster model of Government, Royal prerogatives are sources of British constitutional law but of the non-legal character.

Ringen emphasises that the British constitution is a “complex and evolving living organism that cannot be set in stone once and for all.” This is an important insight into how the British constitution has evolved over time as well as the reasons why instead of codified constitutionalism, the UK chose political constitutionalism. Ringen argues that it is not desirable that the constitutional principles should be decided once and for all at any period of time but should evolve over a period of time. This allows for constitutionalism to be developed with consensus and consultation.Adam Tomkins supports the growth of British constitutional law through political means because these are more effective in checking the Government and holding the Government responsible for its actions.

To conclude this essay, a variety of legal and non-legal sources make up the British constitution, with the essential character of the constitution becoming its uncodified and largely unwritten nature. This is a unique feature of the British constitution and one that finds support in academic writing as well. The British constitution is flexible and evolving in nature because of its unwritten character. The unwritten nature of the British constitution and the non-legal sources of the constitution give a political character to the constitution. This makes the constitution responsive to new issues and also allows consensus and wide consultation for formulating new principles of constitutionalism.

Cases

A v Secretary of State [2004] UKHL 56.

Burmah Oil Company Ltd v Lord Advocate [1965] AC 75.

Chief Constable of Kent Constabulary v. Kent Police Federation Joint Branch Board and Another [2000] 2 Cr.App.R. 196.

Jackson v Attorney General [2006] 1 AC 262.

Pickin v British Railways Board [1974] AC 765.

R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70.

R v. Jones and Ors [2006] 2 All ER 741.

Books

Allison JWF, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford University Press 2000).

de Smith S and Brazier R, Constitutional and Administrative Law (Penguin 1998).

Bagehot W, The English Constitution (Chapman & Hall 1867).

Barnett H, Constitutional & Administrative Law (Oxon: Routledge 2014).

Laws J, The Common Law Constitution (Cambridge University Press 2014).

Marsh D, Richards D, Smith MJ, Changing Patterns of Governance: Reinventing Whitehall (Palgrave 2001).

Martin J, The English Legal System (London: Hachette 2013).

Oliver D and Drewry G, The Law and Parliament (Cambridge University Press 1998).

Ringen S, ‘Constitutional authority in British democracy’, in Chris Bryant (ed.), Towards a new constitutional settlement (The Smith Institute, 2007).

Seidle LF and DC Docherty, Reforming parliamentary democracy (McGill-Queen's University Press 2003).

Tomkins A, Our Republican Constitution (Oxford: Hart, 2005).

Journals

Bingham, ‘The Rule of Law’, (2007) 66 (1) The Cambridge Law Journal 67.

Garrett BL, ‘Habeas Corpus and Due Process’ (2012) 98 Cornell L. Rev. 47.

Triggs G, ‘Lord Bingham: Of Swallows and International Law’ (Legal Studies Research Paper No.8/116, October 2008)