Discuss the UK Constitution

The United Kingdom has no constitution set down in a fully written legal document; however this is not to say that the United Kingdom lacks constitution. In ‘The Law and the Constitution’(1959) Ivor Jennings writes, “If a constitution means a written document, then obviously Great Britain has no constitution…But the document itself merely sets out rules…The phrase ‘British Constitution’ is used to describe those rules.” This quote highlights the idea that although the United Kingdom lacks one single document outlining the institutional rules and regulations, it still has a constitution. The House of Lords Select Committee on the Constitution 2002 expanded this idea by stating “The British Constitution… is not ‘unwritten’…but it is uncodified.” The lack of codification in the constitution can definitely lead one to the thought that the Constitution is indeterminate. There are three very distinct places in which to find the British Constitution the first is in statutes set out by Parliament.

There is much debate over which acts are actually constitutional documents in Thoburn v Sunderland City [2002] EWHC Admin 195 Laws J gave a list of statutes that are believed to be constitutional examples include; The Magna Carta 1297, Bill of Rights 1689,Union with Scotland 1706 and The Human Rights Act 1998. There is however debate over certain other statutes such as; Treason Act 1351, Parliament Act 1911, Police and Criminal Evidence Act 1984 and Constitutional Reform Act 2005, along with various other acts. The fact there is so much debate over which acts are constitutional and which are not supports the idea that the British Constitution is indeterminate and wholly indistinct, by having so many different acts that may contain important constitutional issues it makes the law regarding the constitution incredibly uncertain to all people. The constitution is ideally as stated by the House of Lords Select Committee on the Constitution 2002, “‘the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between different institutions and between those institutions and the individual.” If the constitution is supposed to set out the relationship between the institutions and the individual how is it possible to ascertain this information when there are so many areas and statutes to consult?

Similarly statute law on the constitution is virtually un-entrenched and unprotected. The most important rights and regulations governing the institutions and government are, in theory, completely vulnerable to amendment or even repeal. There are two different schools of thought on the hierarchy of the constitution. The first of these is the orthodox view, “Although the Magna Carta 1215 and the European Communities Act 1972 are in one sense fundamental laws, then can be as easily repealed, as say, the Animals Act 1971…” – Barendt. This view is effectively saying that all statutes are of the same status, the constitutional statutes have no more protection than ordinary statutes. This view highlights quite clearly how un-entrenched the British Constitution actually is. However, in reality repealing such Acts as the Magna Carta and the European Communities Act could be seen to be almost impossible, therefore the alternate approach to constitutional hierarchy, may serve as more logical and give the constitution some amount of certainty and entrenchment. Lord Wilberforce stated he held some reluctance to statutes of “such constitutional significance importance…being subject to the doctrine of implied repeal.” Although Lord Wilberforce was speaking extra-judicially here it still highlights that, at least in the eyes of the judiciary, there is some entrenchment in relation to the constitution, and this opinion is shared by Laws J in the case of Thoburn.

Another place in which to find constitutional documents are in the Common Law, which are judicial decisions which; “declare important rules of Public Law which often would not have been enacted by Parliament.” (Pg 16 Constitutional and Administrative Law 15th ed) Therefore there are many constitutional elements of law contained in cases as a means of ‘filling the gaps’ that has been left in the absence of statute. This method, however, does lead the constitution to be incredibly indeterminate; Case Law itself is unpredictable and easily changeable also shows that the constitutional ideas present within are completely unprotected and not able to be determined by ordinary citizens – unless they know where to look. In addition, parliament can easily set aside or even repeal judicial decisions easily, even retrospectively, further showing that the constitutional common law is even more un-entrenched than statutes. A case that has a large impact on the constitution is Entick V Carrington [1765] EWHC KB J98 a case which set out the limits of the Secretary of State’s power to issue warrants. Similarly the court exercised power over the home secretary in M v Home Office [1994] 1 AC 377 when they held the Secretary had committed contempt of court by not allowing a Zairean teacher back into the United Kingdom. It is a positive aspect of the Common Law that it protects the right of citizens while making the government accountable to the citizens for their actions, the only issue being the uncertainty behind the Common Law, these decisions are not easily accessible and as mentioned previous, very indeterminate and ever changeable.

Another source of the British Constitution are non-legal rules called Conventions, these are described by Jennings as; “The flesh which clothes the dry bones of the law.” Conventions are binding upon the public bodies that operate the constitution, however they are not enforceable by the courts, even still, they are an incredibly important part of the British Constitution. Conventions are, though, probably the most indeterminate and un-entrenched parts of the Constitution. It is difficult to identify a convention and they are incredibly easy to suspend, reformulate or even ignore as they are not binding or punishable. Conventions of the British Constitution include such things as the Queen’s right to refusing a Royal Assent, however it is unlikely that the Queen will ever refuse royal assent due to convention. Similarly the Queen has the power to appoint anybody to be her Prime Minister, but convention dictates that she will choose the leader of the party with the most seats in Parliament. Another convention is that minister has a responsibility towards parliament, in which ministers speak with one voice and have confidentiality and unanimity. Although these conventions have no punishment failing to comply with them will seriously damage political reputation and could lead to anarchy if, for example, the queen decided to appoint a Prime Minister not part of the Commons or Lords. Conventions have also been involved within cases one example of such is Carltona Ltd v. Commissioner of Works [1943] 2 ALL ER 560 which established the idea that government department official’s acts are synonymous with the ministers in charge, showing the convention of unanimity between ministers being translated somewhat into case law. In general, however constitutional conventions are unwritten, hard to identify and unenforceable legally speaking.

A final source of the Constitution are Crown Prerogatives, Dicey described this as; “…the residue of discretionary and arbitrary authority, which at any time is legally left in the hands of the crown.” Similar to Conventions these prerogatives that can be exercised historically by the Crown only, however now the Prime Minister and Cabinet need to be involved for prerogative to be exercise. One of the most important crown prerogatives is the dissolution of parliament and the declaration of war. In theory the Crown can do this at any time; however in reality it would cause many problems. Although Crown Prerogative is not usually demonstrated in these ways much in the modern day, it doesn’t mean they are any less a part of our constitution, however once again as they are unwritten and unknown to most citizens they can be seen to be another indeterminate part of the British Constitution.

To conclude, it is plain to see that much of the British Constitution is indeterminate and indistinct in the way that it is presented and available. It can be seen as un-entrenched in a significant way, however due to political and social pressures, deviating from Conventions and reforming or repealing Constitutional Statutes, although easily done, will be difficult in reality for politicians to do. The reason for such a constitution I feel is to allow Parliament extreme flexibility. The way the constitution can be changed and moved so easily is not to limit Parliament’s power, as if our constitution was as rigid as one such as the American Constitution it would severely limit Parliament if they felt they needed to amend or change any part of it, having an uncodified constitution allows far more flexibility for Parliament, and each Parliament that follows.