BRITAIN’S UNCODIFIED CONSTITUTION SECOND-Year law – class 4

Questions about last class What are the four sources of English (and Welsh) law? Define common law. What is the difference between primary and secondary legislation? What impact does EU legislation have on UK sovereignty?

Key Concepts What is a Constitution? It is a set of principles, written or unwritten, establishing the distribution of power within a political system, relationships between political institutions, the limits of government jurisdiction, the rights of citizens, and the method of amending the Constitution itself. What is the difference between a codified and uncodified Constitution? A codified Constitution has a single source; it is written down in a single document. On the contrary, an uncodified Constitution may contain written parts, but they are not in one single document. What is entrenchment? It is a device which protects the Constitution from short term amendment. In the UK it is impossible to entrench the Constitution because Parliament is sovereign. What is judicial review? This is when a court interprets what the Constitution is, often as the result of a legal challenge. In the UK, Parliament is sovereign: judges may declare that an act of Parliament is incompatible with the Human Rights Act (e.g. in 2004 the indefinite detention of foreign terror suspects - The Guardian article), but it is up to Parliament whether it complies and passes remedial legislation.

The UK Constitution Constitutions organize, distribute and regulate state power. They set out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens. Britain is unusual in that it has an ‘unwritten’ constitution: unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works. Britain’s lack of a ‘written’ constitution can be explained by its history. In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. It has never been thought necessary to consolidate the basic building blocks of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than an ‘unwritten’ one. 

The UK Constitution (2) It has been suggested that the British Constitution can be summed up in eight words: What the Queen in Parliament enacts is law. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law. Other core principles of the British Constitution are often thought to include the rule of law, the separation of government into executive, legislative, and judicial branches, and the existence of a unitary state, meaning ultimate power is held by ‘the centre’ – the sovereign Westminster Parliament. However, some of these principles are mythical (the British constitution may be better understood as involving the fusion of executive and legislature) or in doubt (Parliamentary sovereignty may now be called in question given the combined impact of Europe, devolution, the Courts, and human rights). The British Constitution is derived from a number of sources. Statutes are laws passed by Parliament and are generally the highest form of law. Conventions are unwritten practices which have developed over time and regulate the business of governing. Common law is law developed by the courts and judges through cases. The UK’s accession to the European Communities Act 1972 has meant that European law is increasingly impacting on the British Constitution. The UK is also subject to international law.

The UK Constitution (3) An uncodified constitution creates two problems. First, it makes it difficult to know what the state of the constitution actually is. Second, it suggests that it is easier to make changes to the UK Constitution than in countries with written constitutions, because the latter have documents with a ‘higher law’ status against which ordinary statute law and government action can be tested, and are only amendable via elaborate procedures. The flexibility of the UK constitution is evident from the large number of constitutional reforms since 1997, including the abolition of the majority of hereditary peers in the House of Lords, the introduction of codified rights of individuals for the first time in the Human Rights Act 1998, and devolution to Scotland, Wales and Northern Ireland. Arguably, however, these recent constitutional reforms may have made the constitution less flexible in some respects: it is debatable, for instance, whether the devolution settlements could ever be repealed.

Some sources of the UK Constitution First and foremost is Magna Carta (1215), the ‘Great Charter of the Liberties of England’. It established the principle that rulers, at that time the king, could not do whatever they liked, but were subject to the law as agreed with the barons they governed. This simple concept laid the foundations for constitutional government and freedom under the law. Insofar as Magna Carta was ‘the first great public act of the nation’, it also established the direction of travel for the UK political system towards representative institutions and, much later, democracy itself. The Bill of Rights (1689) then settled the primacy of Parliament over the monarch’s prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from ‘cruel or unusual punishment’. This was shortly followed by the Act of Settlement (1701) which controlled succession to the Crown, and established the vital principle of judicial independence.

Other sources The Parliament Acts (1911–49) that regulate the respective powers of the two Houses of Parliament. The Equal Franchise Act (1928) providing for universal voting and other matters of political representation. The European Communities Act (1972) making the UK a legal partner in the European Union. The Scottish, Welsh and Northern Ireland devolution Acts of 1998 creating an executive and legislature for each of those three nations in the UK. The Human Rights Act (1998) establishing a bill of rights and freedoms actionable by individuals through the courts. Recently, some conventions have been subject to an ad hoc codification, such as the principles of ministerial responsibilities in the Ministerial Code.

Should the British Constitution be codified? Debate! Should the British Constitution be codified?

The British Parliamentary Debate Style 4 teams of 2 students. Points of information can be given to the opposing side when they are speaking (question; less than 15 seconds). The first and last minutes are protected time (no points of information). The Prime Minister speaks first. (S)he must define all the important terms. The Leader of the Opposition then refutes the Prime Minister’s arguments. The Deputy Prime Minister and finally the Deputy Leader of the Opposition speak. The member of government, the member of opposition, the government whip and opposition whip then speak.

Sentence Completion The HRA grants fundamental rights and freedoms and makes access to justice for human rights violations quicker for people residing in the UK. The British Bill of Rights is a proposal made by the coalition government in the UK to repeal the existing Human Rights Act and replace it with a new bill of rights that would offer more protection to citizens in the UK. The Convention rights are enumerated in Schedule 1 of the HRA and include rights like the right to life, the right to a fair trial and the right to personal liberty etc… The concept of Parliamentary sovereignty in the UK ensures that parliament is superior to the other two branches and that legislation passed by it take precedence over what is decided by the courts or by the executive. Judicial Rights review enables citizens to take constitutional legal action and challenge executive decisions taken by public authorities.

Fill in the gaps Parliamentary sovereignty is a principle of UK law. It makes Parliament the supreme legal authority1 in the UK, which can create2 or end any law. Generally, the courts cannot overrule3 its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution. People often refer to the UK having an 'unwritten4 constitution' but that's not strictly true. It may not exist in a single text, like in the USA or Germany, but large parts of it are written down, much of it in the laws passed in Parliament - known as statute5 law. Therefore, the UK constitution is often described as 'partly written6 and wholly uncodified7'. By ‘uncodified’ it means that the UK does not have a single,8 written constitution. Over the years, Parliament has passed laws that limit9 the application of parliamentary sovereignty. These laws reflect political developments both within and outside the UK. They include: the devolution10 of power to bodies like the Scottish Parliament and Welsh Assembly; the Human Rights Act 1998; the UK's entry11 to the European Union in 1972; the decision to establish12 a UK Supreme Court in 2009, which ended the House of Lords function as the UK’s final court of appeal. These developments do not fundamentally undermine the principle of parliamentary sovereignty, since, in theory at least, Parliament could repeal any of the laws implementing these changes.

“UK government faces pre-emptive legal action over Brexit Decision” Owen Bowcott, The Guardian, 4 July 2016 a. What is the purpose of the legal challenge launched by Mishcon de Reya? It is to force the UK Government to rely on a parliamentary authorization before it can actually trigger article 50. It is also force the Government to abandon the idea that using the royal prerogative (which is used for instance to ratify treaties) is enough. b. Comment on the underlined sentence. The purpose of the action is to seek greater parliamentary involvement and to clarify some unclear portions of the Constitution. c. According to you, from a constitutional perspective, could the UK Parliament refuse to trigger article 50? Student’s own answers.

Clearer constitutional guide needed to deal with a hung parliament, say Mps Press Association, Monday 2 February 2015 1. What is the Cabinet manual? The Cabinet manual is a guide to laws, conventions and the constitutional framework of the UK. It also deals with wider constitutional issues such as the decision to go to war and the existing convention on whether the House of Commons should continue to debate such a decision to go to war. 2. What extra guideline should be added to the manual according to MPs and why? The text states that a guideline regarding the scope of uncertainty over the use of conventions should be added. Students may mention the example given in the article regarding the convention on whether a sitting PM should resign or not as in the case of the 2010 coalition government. 3. Comment on the underlined sentence. Due to the absence of a written constitution, the Cabinet manual would enable the public and civil servants to understand the passage of new legislation, the evolution of conventions and changes to government policy making in the event of a coalition government.

“Scottish Independence: Gordon Brown in written constitution call” BBC News, 2 September 2013 1. In which context did Gordon Brown call for a written constitution? Describe the stakes. Gordon Brown took this stance that the Scottish Parliament should be made permanent - although nothing is ever permanent in the eye of parliamentary sovereignty - before the independence referendum in Scotland. 2. Read the underlined sentence: in what way does the Scottish constitutional tradition contrast with the British/English one? Contrary to the English tradition of Parliamentary sovereignty, Scotland has a tradition of popular sovereignty wherein the power lies in the hands of the people and not parliament. 3. How does former First Minister Alex Salmond see Scotland’s constitutional future? He stressed that the lack of what he calls “written” constitution in the UK is an antiquated and somewhat embarrassing feature of the UK constitutional organization. He claims that if Scotland becomes independent, they will draft a codified and written constitution and retain the Queen as head of state.

Homework for next time Britain’s Uncodified Constitution Read the lesson. Prepare the Comprehension of the Facts exercise A (ps. 25-27) and the grammar exercise (ps. 31-32).