Understanding the Sources of the British Constitution

The British constitution is not to be found in a single codified document, but in a wide range of legal and non-legal sources.’ Discuss.

The UK does not have a written constitution unlike comparable democracies like the United States, France, Australia and Canada, to name a few. What this means is that unlike these countries where a single document contains the entire constitutional law, the UK does not have any such single document. However, that does not signify that the UK does not have a constitution. There are several constitutional documents that are part of the British constitution, which will be discussed in this essay. A range of legal and non-legal sources are a part of the British constitution. This essay will first discuss the definition of sources of law and then discuss the various legal and non-legal sources of the British constitution.

Sources of law are the methods that are used to develop the law and the originating sources of law. In other words, sources of law are the sources where the law can be said to have originated and the methods that have led to the development of the law. Sources of law can also be described as the sources that the courts refer to for deriving the rules by which cases can be decided, and which include statutes, judicial precedents, custom, and even the opinion of experts. Clearly, not all sources of law are legal, as some sources, like, customs or opinion of experts, are non-legal sources of law. It may also be noted that sources of law can be formal and material sources, the former being the source from where law derives its force and validity, and the latter being those sources where the content the law is to be found. An example of a formal source of law can be found in legislation. Salmond also mentions historical sources of law, which are not authoritative but can explain the history of the law.

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In light of the above discussion on the sources of law, it may be noted that the sources of the British constitutional law can be formal, material and historical sources, which may include both legal and non-legal sources. For instance, one of the important principles of British constitutional law is the principle of parliamentary sovereignty, which is a convention developed by the parliament and recognised by the judicial authority, which has described the principle of parliamentary sovereignty as the “bedrock of the British Constitution.” Thus, the principle of parliamentary sovereignty is an important part of the British constitution, even though it is not laid down in a statute, but is a convention. Four sources of British law are clearly identified: the common law, statutory law, external sources like EU law, and the conventions. The Common law is the oldest source of law but the statutory sources are the most important, being primary law as per the doctrine of parliamentary sovereignty. Due to UK’s membership of the European Union and the European Convention on Human Rights, external sources of law are also applicable.

The British approach to constitutionalism is different from the approach adopted by other comparator countries like the United States, which have chosen to adopt written constitutions at one time. Instead, the British approach to constitutionalism has seen the development of constitution over a long period of time so that it cannot be said that the British constitution was adopted as a single document at one point in time, rather it can be said that the British constitution has evolved through a number of sources over a period of time. Ringen explains

this approach by writing that the British constitution “a complex and evolving living organism that cannot be set in stone once and for all.” Ringen does not only state that the constitution of Britain is not contained in one document, he also argues that it is desirable that the constitution should not be set in stone once and for all. What this means is that instead of having a written constitution with set principles, it is more appropriate that the British constitution should keep developing in response to the changing social conditions and challenges. The ground for supporting the development of the British constitution through time is that if the constitution is developed in this manner, there is more broad consensus and consultation over a variety of areas that the constitution responds to. This refers to political constitutionalism. The Ministry of Justice seems to support this argument because it has also noted that it is only though extensive and wide consultation did the British constitution include important constitutional documents like the Bill of Rights, Habeas Corpus Act, and other such constitutional documents. Adam Tomkins has supported political constitutionalism on the ground that it is more effective in democratically and effectively checking the government and holding it to account.

One of the issues that comes up for discussion because the constitution of Britain is largely unwritten or uncodified, is that there is no single source of the constitutional law, but many sources. The concern then is the identification of the sources of British constitution. Because the British constitution has grown over a long period of time and includes a number of historical documents as well, it may be a challenge to identify the sources of British constitutional law. Some of the older sources of British constitutional law include the Magna Carta, first issued in 1215 by King John, in which the King guaranteed certain rights to the landholders. There are other such historical documents like the Petition of Rights, 1628, the Bill of Rights, 1689, the Act of Settlement, 1700, the Treaty of Union, 1706, and the Habeas Corpus Act. The Magna Carta is considered to be the foundational document in the British constitutional law, which led to the development of representative institutions and democracy. The Petition of Right 1628 led to the recognition of rights and liberties of the individuals. The Bill of Rights 1689 recognised gave primacy to the Parliament. The Act of Settlement 1701 recognised the principle of judicial independence.

Thus, while the British constitution may be uncodified, it is certainly not for the most part unwritten. Much of the written part of the constitution is contained in the acts of Parliament and even the judgments of the courts of law. As mentioned earlier, the British constitution has evolved over a period of time and therefore, there are a number of such legal sources of constitution.

Conventions are also very important part of the British constitutional law. Conventions are important because these regulate the relationship between the institutions of state, which include the office of Prime Minister, the government, the Parliament and the Monarch. Conventions are in the nature of unwritten rules of constitutional practice. Conventions include the rule that the monarch gives assent to the Bills passed by both houses of the Parliament. The Westminster form of parliamentary government is also a convention of the British constitution. As per this convention, the government ministers must have a seat in Parliament; the Prime Minister and Chancellor of the Exchequer, is required to have seats in

the House of Commons. The Westminster system of parliamentary government ensures executive responsibility and accountability to the legislature. This brief discussion on the political conventions demonstrates that even though the UK does not have a codified constitution, it does have rules determining political conduct and regulating relationships between different institutions, which indicates the presence of the constitutional law in the UK.

One of the most significant of conventions is the doctrine of parliamentary sovereignty. As per the traditional doctrine of parliamentary sovereignty, the British Parliament is the supreme lawmaking authority in the UK. Judicial authority also recognised the principle of parliamentary sovereignty, so much so that the courts do not conduct judicial review of the parliamentary law as it is outside the scope of review. Interestingly, judicial authority also indicates that the doctrine of parliamentary sovereignty is a construct of the common law as noted in the by Lord Steyn. This indicates the relevance of judicial authorities as sources of British constitutional law.

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Since the UK became a member of the European Union, there are also certain external sources of constitutional law in the UK; these include, the European Communities Act 1972, and the Human Rights Act 1998. When the UK became a member of the European Union, it chose to restrict its law making authority by providing for a principle of compatibility with the European Union law. This was done by the British Parliament through the statutory instrument of the European Communities Act 1972, Section 2(1). In the Factortame case, Section 2(1) was used by the House of Lords to suspend the operation of parliamentary law and refer the matter of compatibility between the statutory law and the European Union law to the European Court of Justice. In the Belmarsh case, similar action was taken, when the indefinite detention provisions contained in the Anti-Terrorism, Crime and Security Act 2001 were suspended by the House of Lords because these conflicted with the European Convention of Human Rights, Article 5. Therefore, as long as the European Communities Act 1972 and the Human Rights Act 1998 are applicable, British constitutionalism would require compatibility between the statutory law and the European Union law and the European Convention of Human Rights.

The recent Constitutional Reforms Act (2005) is also be a part of the British constitutional law. It may be said to be a recent addition to the British constitutional law. The important aspects of the constitutional law that is dealt with in this statute relates to the principle of separation of powers. Traditionally, the principle of separation of powers has not been strictly applied in the UK. Noted constitutional expert Bagehot noted that “the efficient secret of the English Constitution is the close union, the nearly complete fusion of the executive and legislative powers,” implying that the principle of separation of powers was not the

important aspect of British constitutional law. However, the Constitutional Reforms Act 2005 has made some key changes to the organisation of judiciary, which has relevance to the principle of separation of powers. Earlier, the Lord Chancellor was earlier part of all the three Branches of the government; he was the head of the judiciary, a member of the cabinet and speaker of the House of Lords. The Constitutional Reforms Act 2005 abolished Lord Chancellor’s position as head of the judiciary and speaker in the House of Lords. The purpose of these changes was to effect a stricter application of the principle of separation of powers. The Act also led to the establishment of the UK Supreme Court so that the House of Lords is no longer has appellate judicial functions. The Supreme Court is now the highest appellate court in the UK. The Constitutional Reforms Act 2005 is a new and important legal source of the British constitutional law.

In conclusion, it may be noted that there is some support for the political constitutionalism in the British constitution, because it allows the organic growth of the constitutional law over a period of time. This can happen through consensus and consultation as has been done in the UK. There are legal as well as non legal sources of British constitutional law. Political conventions are non legal sources of law. At this time, there are also some external sources of British constitutional law. It can be said that the British constitutional law is uncodified, but it cannot be said that it is unwritten for its most part because the British constitutional law contains a number of legislations as well as judicial authorities, all of which are written sources of law. Unwritten sources of British constitutional law are contained in conventions like the principle of parliamentary sovereignty.

Table of cases

A v Secretary of State [2004] UKHL 56.

Jackson v Attorney General [2006] 1 AC 262.

Pickin v British Railways Board [1974] AC 765.

R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70.

Books

Allison JWF, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford University Press 2000).

Bagehot W, The English Constitution (Chapman & Hall 1867).

Barnett H, Constitutional & Administrative Law (Oxon: Routledge 2014).

Broadbent G, Public Law Directions (Oxford: Oxford University Press 2009).

de Smith S and Brezier R, Constitutional and Administrative Law (Penguin 1998).

Fuller LL, Anatomy of the Law, Vol. 933 (FA Praeger 1968).

King A, The British Constitution (Oxford: Oxford University Press 2007).

Martin J, The English Legal System (London: Hachette 2013).

Ministry of Justice, The Governance of Britain Cm. 7170 (London: The Stationery Office 2007).

Oliver D and Drewry G, The Law and Parliament (Cambridge University Press 1998).

Ringen S, ‘Constitutional authority in British democracy’, in Chris Bryant (ed.), Towards a new constitutional settlement (The Smith Institute, 2007).

Salmond JW, Jurisprudence (Stevens and Haynes 1913).

Tomkins A, Our Republican Constitution (Oxford: Hart, 2005).

Turpin C and Tomkins A, British Government and the Constitution: Text and Materials (Cambridge: Cambridge University Press 2011).

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