Governmental Power in the United Kingdom

“The rules that allocate and control governmental power in the United Kingdom are diverse in nature, sometimes uncertain in content and nearly all of them are easy to change; as a result, it is doubtful that there is such a thing as the “constitution of the United Kingdom.”

Introduction

An overarching theme in any popular academic commentary of United Kingdom constitutionalism surrounds the issue of codification or the lack thereof, in providing a platform for the suitable systematisation of laws that can be described in many ways as ‘foundational’.¹ The very existentialism of the question – ‘does the United Kingdom have a constitution?’ has been historically attributed to the multiplicity of the sources ² of the same and the absence of an otherwise globally accepted traditional ‘Capital-C’ structure of an entrenched and all-encompassing set of laws.

The absence of these ‘Capital-C’ characteristics has naturally galvanised a large degree of academic inquiry into whether the United Kingdom does indeed have what it can call its own ‘constitution’. Furthermore, with academic interpretation having reached verdicts on both accounts, it can be logically inferred that the debate often surrounds itself on the ambiguity in the very definitions of what might constitute a ‘constitution’.

Hence over the course of this analysis, various key sources of governmental power in the United Kingdom will be critically examined, keeping in mind the nature, purpose, and course of development of the same. Additionally, to ensure that inferences made are logical and coherent, questions surrounding the key characteristic features of constitutions shall also be scrutinised.

What is desired out of a constitution?

By highlighting the role of constitutions in establishing governments, being an authority over the established order, being superior to and a source of all others laws along with being entrenched, FF Ridley sets out objectively the characteristics required from a constitution in the modern world in his commentaries on the topic. However, he admits the impact of historic revolutions and the modern international interpretation of the word has on his rather watertight characterisation.³

In fact, the role revolutionary constitutionalism has played in the establishment of constitutions around the world, from the United States to India, cannot be wholly disregarded. The internationally accepted ‘Capital-C’ style of constitutions itself owes its popularity to political revolutions whose outcomes involved the ideals of the revolution being codified and entrenched via the medium of a constitution.⁴

Meanwhile, the constitutional instruments in Britain owe their development to general socio-political developments, with only the Glorious Revolution and English Civil Wars of the seventeenth century being instances of upheaval that helped in partial constitutional codification.⁵

Where is public law in Britain derived from?

To answer the larger question regarding whether the United Kingdom does indeed have a constitution, it is necessary to examine the sources of the rules allocating governmental power and why their content and nature in applicability has given rise to polar opinions on the topic.

In a country having a ‘Capital-C’ style constitution, the principal sources of public law other than the main constitution text itself would be constitutionally significant statutes or legislation and judicial decisions of a similar nature. Hence, in the United Kingdom scenario, where the constitution itself is missing, the latter two assume greater significance in matters of public law. ⁶

When legislation as a constitutional source is addressed, the concept of parliamentary sovereignty as stressed on in the works of Dicey,⁷ requires special attention. While historical statutes of constitutional significance such as the Magna Carta and the Bill of Rights are crucial to analyse the development of primary legislation, the supreme legal authority of the United Kingdom Parliament to create or strike down primary legislation in the modern context demands keen scrutiny. In many ways, the existence of parliamentary sovereignty provides the foundational legal stability a ‘small-c’ constitution may arguably lack.

However, this silver lining is weakened by the fact that Parliament itself can unmake or strike down its own laws. Hence the stability of an entrenched constitution is never availed of fully.

This weakness continues in a greater capacity with regards to secondary legislation as the Supreme Court has the authority to challenge their validity. This competence of the Supreme Court in a broader sense is also crucial in understanding the role it plays in ensuring compliance of domestic law to European Union law via judicial review.⁸

In terms of legal sources outside statutes, case law has played an important role in not only helping interpret statutes but also act as a source of constitutional rules themselves. A debate that may arise in this context is if constitutional principles derived from judicial decisions can be held in the same legal prominence as article-based provisions of written and codified constitutional texts. For instance, fully taking into account the novel and landmark nature of the case Entick v Carrington,⁹ can the principles of civil liberty and limitation of state powers laid down in the same be held of similar constitutional nature as the Fourth Amendment to the United States Constitution?¹⁰ Furthermore, sufficient doubt will continue to persist on how pursuers of Ridley’s model of constitutions would classify case laws on their own within the four characteristics he defined.

Nature of Non-Legal Sources in United Kingdom Constitutional Theory

Investigating the other side of the spectrum, the prominence of non-legal constitutional conventions in the United Kingdom arguably denote the ‘political’ nature of the country’s constitutional system and arguably support statements that argue the volatility of the same as they are capable of being relatively easier to change.¹¹

Scrutiny around the uncertainty of the status of conventions arises on multiple grounds. Immediate questions arise on whether conventions can enjoy judicial recognition in the same manner as a statutory instrument or case law, and whether the obligations they impose are simply moral rather than legal.¹²

This is a matter of concern as this implies that courts cannot keep a check on the preservation of conventions on legal grounds due to their reliance on non-legal obligations.¹³ It is not to say their existence will be disregarded by courts,¹⁴ but it will largely be left to the discretion of political actors in respective circumstances to ensure compliance.¹⁵

Does the United Kingdom have a constitution?

As one aims to answer the aforementioned question that this entire analysis has developed towards, it is necessary to recall the points of academic inquiry and disagreement regarding the very rules allocating governmental power in the United Kingdom. The diverse nature of these sources of constitutional law and their frequent uncertainty in practice themselves as demonstrated in this analysis, are the very reasons this question continues to rise in the academic context.

Taking into account the culmination of these factors and juxtaposing them against the characteristics desired out of constitutions in the comparative context in much of the modern world, there appears to be insufficient evidence to substantiate the existence of a constitution in the United Kingdom.

While it may be argued that the current legal and political mechanisms in practice fulfil the “functions” a constitution would be reasonably expected to¹⁶ or that no constitutions in the world are entirely written down in the first place;¹⁷ taking into account the path of development modern constitutions have taken globally, the legal premises in the United Kingdom fail to demonstrate a convincing case for the presence of any legal order that may be called a constitution.

BIBLIOGRAPHY

BOOKS

• — Fenwick H, Phillipson and Williams A, Text, Cases and Materials on Public Law and Human Rights (4^th edn, Routledge 2016)
• Bradley AW, Ewing KD and Knight CJS, Constitutional and Administrative Law (16th edn, Pearson 2015)
• Dicey AV, Introduction to the Study of the Law of the Constitution (8^th edn, Macmillan and Co. 1915)
• King A, The British Constitution (Oxford University Press, 2007)
• Masterman R and Murray C, Constitutional and Administrative Law (1^st edn, Pearson 2013)

STATUTES

• Bill of Rights 1689
• Magna Carta Libertatum 1215

CASES

• Attorney General v Jonathan Cape Ltd and Ors [1976]QB 752
• Entick v Carrington & Ors [1765] EWHC KB J98
• Manuel v Attorney General [1983] Ch 77
• R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603

JOURNAL ARTICLES

• Blick A, ‘Codifying or Not Codifying the United Kingdom Constitution: The Existing Constitution’ [2012] Centre for Political and Constitutional Studies
• Barendt E, ‘Is there a United Kingdom Constitution’ [1997] Oxford Journal of Legal Studies 17(1)
• Epstein RA, Entick v Carrington and Boyd v United States: Keeping the Fourth and Fifth Amendments on Track [2015] University of Chicago Law Review, 82(1)
• Gardbaum S, ‘Revolutionary Constitutionalism’ [2017] International Journal of Constitutional Law, 15(1)
• Griffith J, ‘The Political Constitution’ [1979] Modern Law Review, 42(1)
• Jaconelli J, ‘Do Constitutional Conventions Bind?’ [2005] Cambridge Law Journal, 64(1)
• Marshall G, ‘What are Constitutional Conventions?’ [1985] Parliamentary Affairs, 38(1)
• Phillips LW, ‘A Long Look at the British Constitution’ [1984] Parliamentary Affairs, 37(4)
• Ridley FF, ‘There is No British Constitution: A Dangerous Case of the Emperor’s New Clothes’ [1988] Parliamentary Affairs, 41(3)

OTHER SOURCES

• US Const amend IV

¹ Andrew Blick, ‘Codifying or Not Codifying the United Kingdom Constitution: The Existing Constitution’ [2012] Centre for Political and Constitutional Studies

² Leslie Wolf-Phillips, ‘A Long Look at the British Constitution’ [1984] Parliamentary Affairs, 37(4) 385

³ FF Ridley, ‘There is No British Constitution: A Dangerous Case of the Emperor’s New Clothes’ [1988] Parliamentary Affairs, 41(3) 340, 342-343

⁴ R Masterman and C Murray, Constitutional and Administrative Law (1^st edn, Pearson 2013) 15

⁵ Stephen Gardbaum, ‘Revolutionary Constitutionalism’ [2017] International Journal of Constitutional Law, 15(1) 173

⁶ AW Bradley, KD Ewing, and CJS Knight, Constitutional and Administrative Law (16^th edn, Pearson 2015)

⁷ Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8^th edn, Macmillan and Co 1915)

⁸ R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603

⁹ Entick v Carrington & Ors [1765] EWHC KB J98

¹⁰ Richard Epstein, Entick v Carrington and Boyd v United States: Keeping the Fourth and Fifth Amendments on Track [2015] University of Chicago Law Review, 82(1) 27

¹¹ J Griffith, ‘The Political Constitution’ [1979] Modern Law Review, 42(1) 1, 19

¹² Geoffrey Marshall, ‘What are Constitutional Conventions?’ [1985] Parliamentary Affairs, 38(1) 33

¹³ Manuel v Attorney General [1983] Ch 77, 107

¹⁴Attorney General v Jonathan Cape Ltd and Ors [1976]QB 752

¹⁵Joseph Jaconelli, ‘Do Constitutional Conventions Bind?’ [2005] Cambridge Law Journal, 64(1) 149

¹⁶ E Barendt, ‘Is there a United Kingdom Constitution’ [1997] Oxford Journal of Legal Studies 17(1) 137

¹⁷ A King, The British Constitution (Oxford University Press, 2007) 5