1. Britain’s uncodified constitution

2. An “uncodified” constitution
No single document which sets out the laws outlining how the state works
Several different sources (many of which are written)
The British Constitution has evolved over time
No single document which sets out the laws outlining how the state works
Several different sources (many of which are written)
Britain’s lack of a ‘written’ constitution can be explained by its history.
In other countries which have experienced revolutions, it has been necessary to construct new state institutions and decide how they will interact.
By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British political life.
Briefly had a Constition between 1653 and 1660, during the period after the English Civil War when it was a republic, but it was abolished when Charles II returned as monarch.
(Charles 1 executed 1649)

3. Sources of the constitution

4. 1) Historic constitutional documents
Key to the transition from absolute monarchy to constitutional government
Magna carta (1215)
emphasised the importance of the rule of law
stated that the monarch was subject to the law
Bill of Rights (1689)
limited the power of the monarch
required regular parliaments, free elections, and freedom of speech in Parliament (=Parliamentary privilege)
Historic constitutional documents form a very important source of the British constitution.
There are two in particular which were seen to be key for the transition from absolute monarchy to constitutional government
Magna carta (1215)
> emphasised the importance of the rule of law
stated that the monarch was subject to the rule of law
“No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.
“To no one will we sell, to no one will we deny or delay right or justice.”
The Bill of Rights (1689) < act of Parliament
limited the power of the monarch
required regular parliaments, free elections, and freedom of speech in Parliament (=Parliamentary privilege)
It sets out certain rights of individuals including the prohibition of cruel and unusual punishment

5. 2) Acts of Parliament Parliamentary sovereignty
Acts of Parliament are the highest source of law – they cannot be struck down by the courts
Parliament is not bound by any existing law
=any statute can be amended or repealed by a simple majority
= any precedent can be overruled by a statute
Acts of Parliament are the highest source of law – they cannot be struck down by the courts
Parliament is not bound by any existing law
=any statute can be amended or repealed by a simple majority
= any precedent (law created by a judge) can be overruled by a statute

6. 2) Acts of Parliament The Great Reform Act (1832)
The Equal Franchise Act (1928)
The European Communities Act (1972)
The House of Lords Act (1999)
Constitutional Reform Act (2005)
The Human Rights Act (1998)
Scotland, Wales and Northern Ireland Acts (1998) and their successors
Many acts of Parliament have no constitutional significance, but there are some very important Acts which have a big impacts on the development of the Constitution.
The Great Reform Act (1832) > moved towards popular sovereignty by increasing the number of adult males who could vote (> 6% of pop)
The Equal Franchise Act (1928) > gave all men and women over 21 the right to vote
The European Communities Act (1972) provided for the supremacy of EU law
The House of Lords Act (1999) > reformed the House of Lords
Constitutional Reform Act (2005) > created the UK Supreme Court.
The Human Rights Act (1998) > incorporated provisions of the ECHR into English law
Scotland, Wales and Northern Ireland Acts (1998) and their successors > granted devolution and established legislatures (with limited powers) in Scotland, Wales and Northern Ireland
However, the judgment of Lord Justice Laws in the Thoburn case in 2002 indicated that there may be a special class of "constitutional statutes" such as Magna Carta, the Human Rights Act 1998, the European Communities Act 1972, the Act of Union and Bill of Rights which have a higher status than other legislation. This part of his judgment was "obiter" (i.e. not binding) – and, indeed, was controversial. It remains to be seen whether the doctrine will be accepted by other judges.

7. 3) The Common Law
Judicial decisions on the interpretation of constitutional rules
The Royal Prerogative
privileges and powers which are still held by monarch, but which today are exercised by the prime minister and government > see more on this next week
allows the Executive to act in certain circumstances to act in certain circumstances without involving Parliament eg make treaties
These powers are not set out in statute, and there is no definitive list, meaning that there exact extent is uncertain

8. 4) Convention Traditions
Have no legal force, but often treated as if they do
Examples:
the Monarch will not veto Acts of Parliament
the Salisbury Convention
the House of Lords will not oppose any government legislation promised in its election manifesto

9. 5) Works of authority
A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)
Walter Bagehot The English Constitution (1867)
Because the Constitution is uncodified, works by legal scolars which explain constitutional principles and conventions have also been very influential. They are seen as authorities and referred to in judicial decisions

10. 6. EU Law
> Next week

11. An uncodified constitution
Advantages
Disadvantages
Advantages
Flexibility
Disadvantages
No absolute protection of rights and liberties > a simple Act of Parliament can override any protections
No limits to Parliament’s decision-making power > eg Lisbon Treaty approval in 2007

12. The Human Rights Act (1998)

13. The Human Rights Act (1998)
The UK ratified the European Convention on Human Rights in 1953
but claims could only be brought in the ECtHR in Strasbourg.
The Human Rights Act (1998)
incorporated provisions of the ECHR into British law
allowed claims for breaches of the ECHR to be brought in UK courts
The UK ratified the European Convention on Human Rights in 1953 (ECHR)
but claims could only be brought in the ECtHR in Strasbourg.
(expensive, slow, complicated)
In 1998, Parliament finally passed the H.R.A.,
incorporated ECHR rights into British law
allowed claims for breaches of the ECHR to be brought in UK courts
Claims can still be brought before the ECtHR, but only if all possibilities of appeal in UK courts have been used (=exhaused)

14. Parliamentary sovereignty and the HRA
Judges cannot strike down an Act of Parliament which violates the ECHR
judges issue a Declaration of Incompatibility
Parliament then chooses whether to amend or repeal the offending law
However the HRA maintains Parliamentary sovereignty
Judges cannot strike down an Act of Parliament which violates the ECHR
issue a Declaration of Incompatibility
Parliament then chooses whether to amend or repeal the offending law
The ECtHR have ruled against the UK numerous times
The Conservatives plan to introduce a British Bill of Rights
> This may supplement (or replace?) the ECHR

15. British Bill of Rights and Duties
The European Court of Human Rights have ruled against the UK numerous times
The Conservatives plan to repeal the HRA and introduce a British Bill of Rights and Duties
would make ECtHR decisions “advisory” only
The ECtHR have ruled against the UK numerous times
The Conservatives plan to repeal the HRA and introduce a British Bill of Rights and Duties
make ECtHR decisions “advisory” only > allow Parliament to ignore ECtHR decisions which they disagree with