Sources of Establishment and Written Constitution

The quotation by Barendt, which comes from a passage in Feldman, suggests that because the power to govern and guide is held within the separation of powers, the terms of reference which lays out the rules for these political institutions, could, if viewed broadly, be construed as a constitution for the United Kingdom. This essay will examine Barendt’s proposition by outlining the sources of establishment and comparing it with countries that have a written constitution.

A constitution is best explained as the table of laws and doctrines under which a country is governed. A smaller and less complex example, it could be seen in any club or Society as the rules and procedures. However, a constitution of a country goes much further than that; it should be a blue print to protect the rights of individuals, and ensure their obligations are enforced fairly and rationally in order to achieve a harmonious society.

Unlike most other nations, the UK has no single document setting out the constitutional rules and is often referred to as the “unwritten” constitution. Compared with that of the United States (US) which has a written codified constitution in one document open for all to view. However, the word “unwritten” is misleading as the UK’s constitution does exist in written form. It consists of statutes (acts of parliament), judicial judgments or case law, where judgments of higher courts form precedents or case law that binds lower courts and Parliamentary conventions and royal prerogatives.

The beginnings of the UK constitution can be traced back to the Magna Carta of 1215. The next major constitutional source being the Bill of Rights in 1689. The Act of Settlement of 1701 setting the succession to the throne and the later Acts of Union 1707 with Scotland and 1801 with Ireland (repealed in 1983) form some of the UK’s historic constitutional documents.

Dicey, a learned and influential constitutional lawyer, suggested there were two basic principles of the UK constitution, firstly the Rule of law, whereby “everyone is equal before the law, including those in power” secondly Parliamentary Supremacy. Dicey described these as “the ‘twin pillars’ of the British constitution” in his classic work ‘An Introduction to the Study of the Law of the Constitution (1885)’.

Parliament is made up of the Sovereign, the House of Commons and the House of Lords. Acts of Parliament or statutes are an important source of the constitution because Parliament has the ability to legislate on any subject, however it wishes. This is known as Parliamentary Supremacy or sovereignty of Parliament.

All parliamentary legislation has equal validity and effectiveness. No one outside parliament can override laws passed by parliament and the courts must enforce them. As the UK’s supreme and final source of law Parliament can change the constitution simply by passing new Acts of Parliament.

Compared with the US where the legislators can’t change their constitution. Amendments are made to their constitution via a special procedure that is more arduous than that for regular legislation.

There is some debate as to whether the UK Parliament is still the final source of law in today’s modern constitution. There are two main reasons for this: first there is some debate over whether judges make law or merely interpret it; and secondly the UK’s membership of the European Union which can impose Directives and Regulations on member states.

Many Acts of Parliament have had constitutional significance. For example, the Parliament Acts of 1911 and 1949, whereby Parliament has the power to determine the length of its own term. These Acts also gave powers to the House of Commons that in certain circumstances, it can pass legislations without House of Lords approval (finance bills). Although all legislation must receive Royal Assent. Only the House of Commons has the power to pass a motion of no confidence in the Government, which requires the Government either to resign or seek fresh elections. This does not require approval by the Lords, or Royal Assent.

The United Kingdom is a constitutional monarchy, meaning that, succession to the throne is hereditary. The Monarch has executive powers, known as the royal prerogative. In exercising these powers the Monarch usually takes the advice of the Prime Minister or other ministers.

The most important prerogatives still exercised by the Sovereign is the appointment and dismissal of Prime Ministers and to dissolve parliament at any time on the advice of the Prime Minister. The last time this prerogative was exercised without reference to the Cabinet was the appointment of Harold Wilson as Prime Minister in 1974.

Constitutional conventions are ancient in origin and are binding upon those who operate the constitution. They bind the holders of public offices, not citizens; they are not enforced by the law courts nor by the presiding officers in the Houses of Parliament. Some conventions, (including the duty of the Sovereign to act on the advice of his or her ministers), are primarily observed.

EU law is formed by a number of treaties (notably the Treaty of Rome and the Lisbon Treaty). Treaties do not, on ratification, automatically incorporated into UK law. They therefore have effect in the UK by virtue of the European Communities Act 1972 (ECA 1972). Following the UK joining the European Economic Community (now the European Union) in 1972, the UK became bound by European Union (EU) law.

The principle of supremacy of European Union (EU) was outlined by the European Court of Justice (ECJ) in 1964 in the case of Flaminio Costa v. ENEL [1964] ECR 585, the ECJ said that “the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves”.

The conflict between supremacy of EU law and our own parliamentary supremacy was further illustrated in the Thoburn v. Sunderland City Council [2003] QB 151, judgment. In this case the court went further suggesting that the ECA 1972 formed part of a category of special Constitutional statutes as it conditions the legal relationship between citizen and State and changes the scope of fundamental constitutional rights. Also these types of statutes are not subject to the common law principle of implied repeal.

The case of Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62)[1963] ECR 1 and the case of Pubblico Ministerio v. Ratti (Case 148/78) [1979] ECR 1629 which set out the principle that, by virtue of Article 249 (ex 189) of the EC Treaty, that Regulations have effect on member states without need of further action. Directives are ‘binding as to the result to be achieved, but leave to the Member State the choice of form and methods’. However, where a member state has failed to implement EU law correctly, compensation can be claimed thought the courts as in the cases of R v. Secretary of State for Transport, ex parte Factortame (No. 5) [2000] 1 AC 524 and Brasserie du Pˆcheur SA v. Federal Republic of Germany [1996] ECR I-1929.

Thus EU Treaties, Directives and Regulations have a binding impact on the Sovereignty of the UK and the internal legal and constitutional arrangements of all member states (providing they meet the Van Gend criteria).

The UK signed the European Convention on Human Rights (ECHR) in 1950. This set out further rights and freedoms to the citizen and was enacted into domestic law by means of Act of Parliament, the Human Rights Act 1998 (HRA) which incorporated most of the ECHR conventions. The HRA allows for Human Rights matters to be heard by domestic courts.

The courts have the power to make a “Declarations of Incompatibility” and thus put pressure on the government to amend legislation, however government is not bound to amend any such Acts. Nevertheless, courts need to interoperate any such legislation with the HRA in mind.

Form 1997 there has been many constitutional reforms with decentralised powers from Westminster. The introduction of devolution via The Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Acts 1998 and 2006 creating a devolved system of government in parts of the United Kingdom. The UK had previously been an essentially unitary state since its foundation in 1801, although Scotland has always had a separate legal system and Ireland has repeatedly been subject to attempts to devolve power from London.

England has no legislator of its own and is controlled from Westminster where the devolved bodies are not sovereign and could, in theory at least, be repealed by Parliament.

The most recent changes include the Constitutional Reform Act 2005; this changes the structure of the House of Lords with the aim of creating a clearer separation of powers by separating its judicial and legislative functions. Prior to the 2005 Act, Judges could both sit and vote in the House of Lords. The legislative, judicial and executive functions of the Lord Chancellor have been shared between the Lord Chancellor (executive), Lord Chief Justice (judicial) and the newly created post of Lord Speaker (legislative).

The role of Law Lord was abolished and a new Supreme Court of the United Kingdom created in October 2009.

There are three separate judicial systems in the United Kingdom: that of England and Wales, that of Scotland, and that of Northern Ireland. Under the Constitutional Reform Act 2005 the final court of appeal for all cases, other than Scottish criminal cases, is the newly created Supreme Court of the United Kingdom: for Scottish criminal cases, the final court of appeal remains the High Court of Justiciary.

In conclusion, the UK has a de facto constitution which, whilst unwritten, remains accepted by the people and acknowledge by the trias politica. However, as the ties with Europe strengthen and EU law prevails over UK decisions, the emergence of a piggy-back constitution is inevitable since Articles, Regulation and Directives are codified, it is merely a matter of time until the tide of EU dictate cements a system, so encompassing, that is will become a constitution.