Sources of the British Constitution

‘The British constitution is not to be found in a single codified document, but in a wide range of legal and non-legal sources.’ Discuss.

Aristotle said in The Politics that there “are three elements in each constitution …first, the deliberative, which discusses everything of common importance; second the officials; and third, the judicial element." Thus, in a discussion on the British constitution sources, one may seek the three, the deliberative, the officials, and the judicial element; also a discussion on the sources of British constitution would also include the conventions like the principle of parliamentary sovereignty as these are non legal sources of the British constitution. This essay discusses the various legal and non legal sources of British constitution. For those seeking clarity or assistance in navigating all these complexities of politics dissertation help, understanding these foundational elements is very essential.

The term sources of law, refers to the different methods used for developing the law and the sources where the law can be said to originate. When applied to British constitutional law, the term source would mean the point of origin of constitutional law in the UK as well as the source where the constitutional rules of the UK can be found. As noted by Locke, constitutionalism will also include the laws that relate to the limitation of powers on government, as per the principles of checks and balances; the principle of checks and balances is a part of the British constitution as well as the principle of parliamentary sovereignty, which is deeply embedded in the constitutional law and has been described as the “bedrock of the British Constitution”. In the British law, there are four sources primarily. The Common law is the oldest source of law in the UK. Statutory sources have come later in time, but these are primary law. In the UK, even external sources of law can be found especially due to the UK’s membership of the European Union (EU) and the membership of the European Convention on Human Rights. All these sources are part of the British constitutional law today. Along with these sources, one can also see the presence of conventions like the principle of parliamentary sovereignty as a part of the British constitutional law.

The constitution of Britain is largely unwritten or uncodified in nature, which means that there is no one source of the constitutional law, but many sources, most of them legal and some of them non-legal, which form part of the English constitution. The British constitution has grown over time and as such it is a matter for historical growth and not a single piece of legislation the enactment of which can be identified at some point in history. The British theory about the constitution is that a constitution is “a complex and evolving living organism that cannot be set in stone once and for all.” According to this approach, it is not possible or even desirable to have a single written or codified document as a constitution; rather it is desirable that the constitution be contained in a variety of sources. This allows the development of a variety of sources of constitutional law that demand broad consensus and consultation that needs time. This is possible only when the constitution develops over a period of time in a historic sense and not at one time where the entire constitution is contained in one document. This is also supported by the following observation by the Ministry of Justice:

Hillarie Barnett, Constitutional and Administrative Law (Oxon: Routledge 2014) 68.
Jacqueline Martin, The English Legal System (London: Hachette 2013).
Jackson v Attorney General [2006] 1 AC 262, [1].
Stein Ringen, ‘Constitutional authority in British democracy’, in Chris Bryant (ed.), Towards a new
constitutional settlement (The Smith Institute, 2007) 20.

consultation, and not without broad consensus upon the values upon which they were based and the rights and responsibilities which derived from them.”

Therefore, there is some support for the unwritten or uncodified nature of the British constitution as it is believed that the British constitution has evolved over the years through a number of sources including the Bill of Rights. The many sources of the British constitution can be found in some documents, statutes, and case laws, which are the legal sources of the English constitution as well as some non-legal sources. As UK does not have a codified constitution, that is, a single document or collection of documents within which the constitutional rules are contained, but at the same time, the UK does have rules determining political conduct, it is said that the UK does not have a codified or written constitution, although it does have constitution because it does have rules determining political conduct.

Starting with the Magna Carta (1215), there are various documents and sources of the English constitution, such as, the Petition of Rights (1628), the Bill of Rights (1689), the Act of Settlement (1700), the Treaty of Union (1706), the Habeas Corpus Act, the European Communities Act, and the Human Rights Act (1998). The recent Constitutional Reforms Act (2005) is also be a part of the British constitutional law. All of these documents are written parts of the British constitution, which means that although the UK does not have a written constitution, it does have constitutional charters and documentation that are a part of the constitution of the UK. For instance, the 1215 Magna Carta is the foundational document for the development of representative institutions and democracy in the UK. Even the concept of liberties of the human person, were first laid down in the Magna Carta. The Magna Carta is also central to the development of other constitutional documents like the Petition of Right 1628, which relied on Magna Carta for identifying rights and liberties of the individuals. Similarly, the Bill of Rights 1689 recognised the primacy of the Parliament over the prerogatives of the monarch. The Act of Settlement 1701 provided rules for the succession to the Crown, and the principle of judicial independence. All of these sources are legal sources of the British constitution.

The non-legal sources are constituted by the constitutional conventions, which guide the three organs of the state. The organs of the state, which are, legislature, executive and the judiciary, are guided by certain principles like the doctrine of separation of powers and the principle of parliamentary sovereignty. The principle of parliamentary sovereignty is the more important of these principles. As per the conventions established in the British constitutional law and the case law, the British Parliament is the principal controlling organ for the executive and the supreme law making authority of the land. The principle of parliamentary sovereignty has been taken to the point that even judicial review is not done over primary legislation but over executive action to test whether the acts of the executive are intra vires legislation.

Thus, the principle of parliamentary sovereignty can be said to be one of the established principles within the British constitution. Interestingly, this principle is not laid down in the statute and it is in itself a construct of the common law as noted in the by Lord Steyn Jackson v Her Majesty’s Attorney General:

“Doctrine of the supremacy of the Parliament is a construct of the common law. The judges created this principle. If that is not so, it is not unthinkable that

Ministry of Justice, The Governance of Britain Cm. 7170 (London: Stationery Office 2007) 63.
Anthony King, The British Constitution (Oxford: Oxford University Press, 2007).
JWF Allison, A Continental Distinction in the Common Law : A Historical and Comparative Perspective on English Public Law (Oxford University Press 2000) 16.
Pickin v British Railways Board [1974] AC 765.
Jackson v Her Majesty’s Attorney General [2005] UKHL 56.

circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.”

Earlier in Ghaidan v Godin-Mendoza, the court had held that any change in a fundamental constitutional principle should be the consequence of deliberate legislative action. The use of constitutional conventions to guide the organs of the government in their actions, indicates that the uncodified constitution of the UK includes conventions as well.

It is also believed that the constitution of Britain is more political than legal as it is not contained in any codified document, includes conventions that also create checks and balances, separation of powers and rule of law. For instance, Adam Tomkins supports the continuance of the political constitution over a legal one because through a political constitution or politics, we are able to “democratically and effectively to stop government, to check the exercise of executive power, to hold it to account. The courts, no matter what their powers and no matter what their composition, will always find it more difficult.” Therefore, there is some support for political constitutionalism over legal constitutionalism and continued uncodified nature of the British constitution.

Sources of British constitution also include some external sources, particularly the EU law. Even though EU law and the European Convention of Human Rights are external sources of constitutional law in the UK, these external sources are internalized due to the enactment of the laws in the UK. Thus, the British Parliament enacted the European Communities Act 1972 to give effect to EU law in the UK, Section 2(1) of which provides that the British law should comply with the EU law. This is a significant point to understand the current constitutionalism of the British law which requires that the law made by the British parliament must comply with the EU law, a point that makes an exception to the principle of parliamentary sovereignty. The caselaw developed by the British courts supports the principle of EU law supremacy as exemplified in Factortame case, wherein the House of Lords suspended the operation of a domestic legislation because it was contrary to the EU law. Similar position was taken by the House of Lords in another case. These cases present an important position in the British constitutional law at this point in time which mandates an accord between the British law and the EU law.

Recent addition to the British constitutional sources is the Constitutional Reform Act 2005, which has made some changes to the way the principle of separation of powers is applied in the UK; earlier, the principle was applied loosely, but in the Constitutional Reform Act 2005 has applied the principle more strictly. It may be noted that the British constitution has traditionally taken a very different position on separation of powers with there being more synergy between the executive and the legislature, as noted by Bagehot who said that “the efficient secret of the English Constitution is the close union, the nearly complete fusion of the executive and legislative powers”. Keeping this in mind, one may note that the passage

Lord Anthony Lester, ‘Beyond the Powers of the Parliament’ (2005) Judicial Review 96.
Ghaidan v Godin-Mendoza [2004] UKHL 30, [57].
Adam Tomkins, Our Republican Constitution (Oxford: Hart, 2005) 10.
Hilaire Barnett, Constitutional & Administrative Law (Oxon: Routledge 2014).
Graeme Broadbent, Public Law Directions (Oxford: Oxford University Press 2009) 7.
R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70.
Colin Turpin and Adam Tomkins, British Government and the Constitution: Text and Materials (Cambridge: Cambridge University Press 2011) 351.
R v Secretary of State for Employment, ex p Equal Opportunities Commission, (1995) 1 AC 1.
S de Smith and R Brezier, Constitutional and Administrative Law (8th ed, Penguin 1998) 18.
Walter Bagehot, The English Constitution (Chapman & Hall 1867) 12.

of the Constitutional Reforms Act 2005 has changed this position significantly, due to which it must be seen as a part of the British constitutional law because it has made an effective change in the relations between the organs of the government in some respects.

To conclude this essay, there are a number of legal and non-legal sources that constitute the British constitution. Some of these sources are internal and some, like the EU laws, are external to the UK. There is some support for the uncodified nature of the British constitution because it is considered that the uncodified nature of the British constitution reflects its historical growth, which includes the important parts of the British constitution that need consultation and consensus building.

Books

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

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

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

Broadbent G, Public Law Directions (Oxford: Oxford University Press 2009).

de Smith S and Brezier R, Constitutional and Administrative Law (8th ed, Penguin 1998).

King A, The British Constitution (Oxford: Oxford University Press, 2007).

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

Ministry of Justice, The Governance of Britain Cm. 7170 (London: Stationery Office 2007).

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

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

Turpin C and Tomkins A, British Government and the Constitution: Text and Materials (Cambridge: Cambridge University Press 2011).

Journals

Lester A, ‘Beyond the Powers of the Parliament’ (2005) Judicial Review 96.

Looking for further insights on ccupier's Liability and Res Ipsa Loquitur in the English Law of Tort? Click here.