BRITISH CONSTITUTION-1

Introduction:
The study of the constitution of the UK involves acquiring an understanding of a variety of historical and,
a legal philosophical and political factor which have, over centuries, shaped the organization of the
State. UK appears to be almost unique in not having a constitution which is conveniently set out in a
single document. Thus, if a constitution is meant as a single document or set of documents which
creates a set of institutions-parliaments, Executive Govt, Head of State, Courts etc. If that is what is a
constitution is, then the UK does not have one. It is certainly true that is what we would normally expect
a constitution to have.

NOTE: The UK, New Zealand and Israel are the only countries in the world which lack a written
constitution (though New Zealand has rules codified in its Bill of Rights 1990).

❑ Definition of a Constitution:
(a) Narrow/ Concrete Def: It is a single document containing the most important rules of a State’s
constitutional law which is enacted by the legislature. Or it is a set of documents containing the
basic rules of a State.

Note: The problem with the above definition is that in the UK, there is no single document to be pointed
at and say that this is the constitution of the UK.

(b) Wide/ Abstract Def: Prof. Hood Phillips defined the constitution of the State as “the laws,
customs and conventions which define the composition of powers of organs of the State and regulate
the relation of various State organs to one another and to the private citizens.”

Prof whereas defined the constitution of the state as “a whole system of government of a country, the
collection of rules which establish and regulate or govern the government.”

❑ What are the contents of most constitutions:

• A stipulation of the powers, functions and limitations of the three organs of State I.e., the
executive, legislation and judiciary;
• A stipulation of the rights and liberties citizen possess- ‘positive rights’ I.e., rights that are given
by the constitution;
• The ideology of the state I.e., unitary or federal etc.;
• The constitution is usually regarded as the highest law of the land unless, like the UK there is an
unwritten constitution;
• Provisions of the entrenchment of the constitution against later repeal by a mere Act of the
legislature which will usually be insufficient to change the constitution unless the special
procedure stipulated in the constitution is followed.

Note: The difference between an unwritten and written constitution, if there is such.... are one of form,
but not of substance.

❑ Why doesn’t the United Kingdom have a written constitution?

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Essentially because the country has been too stable for too long. The governing elites of many European
nations, such as France and Germany, have been forced to draw up constitutions in response to popular
revolt or war.

Great Britain, by contrast, remained free of the revolutionary fervor that swept much of the continent in
the 19th century. As a result, this country’s democracy has been reformed incrementally over centuries
rather than in one big bang. For younger countries, including the United States and Australia,
codification of their citizen's rights and political systems was an essential step towards independence.
Ironically, several based their written constitutions on Britain's unwritten version.

• The British Constitution has evolved over many centuries. Unlike the constitutions of America,
France and many Commonwealth Countries, the British Constitution has not been assembled at
any time into a single, consolidated document. Instead, it is made up of common law, statute
law and convention.
• Of all the democratic countries in the world, only Israel is comparable to Britain in having no
single document codifying the way its political institution's function and setting out the basic
rights and duties of its citizens.
• Britain does, however, have certain important constitutional documents including Magna Carta
(1215) which protects the rights of the community against the Crown; the Bill of Rights (1689)
which extended the powers of Parliament, making it impracticable for the Sovereign to ignore
the wishes of the Government; and the Reform Act (1832) which reformed the system of
parliamentary representation.
• Common law has never been precisely defined- it is deduced from custom or legal precedents
and interpreted in court cases by judges.
• Conventions are rules and practices which are not legally enforceable, but which are regarded
as indispensable to the working of Government. Many conventions are derived from the
historical events through which the British system of Government has evolved.
• The constitution can be altered by the Act of Parliament, or by general agreement to alter a
convention.
• The flexibility of the British Constitution helps to explain why it has developed so fully over the
years.
• However, since Britain joined the European Community of Human Justice in 1973, the rulings of
the European Court of Human Justice have increasingly determined and codified sections of
British law in those areas covered by the various treaties to which Britain is a party.
• In the process, British constitutional and legal arrangements are beginning to resemble those of
Europe.
❑ Does the United Kingdom have a constitution?
The answer is YES. Although it has been acknowledged that the UK does not have a written constitution;
I.e., a documentary or codified constitution, the UK constitution has been referred to as recognizable
entity. However, whilst this reflects the orthodox view, it is worth nothing that there is an alternative
view, namely that there is no UK constitution.

❑ Should the UK have a written, codified constitution?

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At present in Britain, they have no written constitution, but instead a collection of laws and customs
which govern our political system. Along with Israel, they are one of only two democracies in the world
not to have a written constitution.

The Constitution is a set of rules which governs the actions of government ensuring that they are lawful.
It implies something far more important than the idea of legality which requires official conduct to be in
accordance with prefixed rules. More importantly, a constitution will vary with society. This answer
considers both sides of the arguments in order to reach a judgement on the issue-

The arguments for codification:

• Provide clarity and certainty e.g., fundamental rights are clearly stated in a written constitution
and also laws are well defined.
• Written constitution will define the scope and set out the legal rules and to some extent political
limitations on the functions and powers of the respective organs of government (limit the
excesses of governmental power). For example, Article 1 of the US Constitution vest legislative
power in the Congress; Article 2 reveals that executive power is conferred on the US President
and Article 3 provides information about the terms of office and the powers of the judiciary.
• Adoption of a written constitution does not destroy flexibility. Because a written constitution
does not contain all the detailed rules. There will be plenty of avenues available for enactment
of rules, as long as these rules do not contradict the contents of the written constitution.
• Written constitution will preserve the best existing constitutional practices and will remove
major defects. For instance, exercise of discretion, abuse of power etc.
• Minorities who are certainly at present poorly represented in Parliament will be protected by a
written constitution.
• A written constitution might educate the public about the nature of their rights and civil
obligations. It might even generate reverence and public loyalty.
• Remedies will be available in courts.
→ Defects of a written constitution:
• Rigid: give rise to temptation to violence and the end result may be a revolution. The term ‘rigid’
was used by Dicey. He defined a ‘rigid’ constitution: ‘One under which certain laws generally
known as constitutional or fundamental laws cannot be changed in the same manner as
ordinary laws.
• Court interference with politics.

The arguments against codification:

• No formal restraints upon the exercise of power I.e., the flexibility of the UK’s constitution
(parliamentary sovereignty).
• The passing of the Human Rights Act 1998 and its effect: there is no pressing need for a written
constitution.
• Absence of special procedure prescribed for the enactment or repeal or amendment of
legislation of constitutional importance I.e., the European Communities Act 1972.
• Dependence of the constitution is more on political and democratic principles than legal rules.
• Question or issue of drafting the British constitution if it is to be codified I.e., who would draft it
and what rights should it include would be potentially divisive.

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 • Question or issue of interpretation I.e., who would interpret it? The nation’s judges would
obviously have this power of interpretation, but this would probably give the judiciary new
powers to strike down government legislation as ‘unconstitutional’. The idea of unelected
judges challenging measures passed by a democratically elected government is certainly
controversial.
• Codification of the constitution will purchase certainty but it will be at the expense of flexibility.
→ Defects:
• Rights not well protected because Parliament is supreme.
• No remedies in court’s because courts cannot question an Act of Parliament (case Pickin vs
British Railway Board)
• Uncertainty- many parts of the constitution are obscure e.g., Conventions on ministerial
responsibilities.
• Lack of entrenchment.
❑ Nature of the UK constitution:
The unwritten nature:

If the layman knows anything about the UK constitution, it is that is unwritten. As we have already seen,
however, this is only correct if we further qualify what we mean by unwritten; If we mean that the UK
constitution does not existing documentary form, then the statement is correct. If, however, we mean
that the rules of the UK constitution are unwritten, then the statement is erroneous. Several of the
principal sources of the UK constitutions are clearly written. Acts of Parliament are written law as are
the principles of the common law which have been established by the courts and subsequently
reported.

The changing nature of the UK constitution:

• Constitutional change maybe gradual and barely perceptible. It may affect some actors or
institutions within the constitutional framework to a significant degree while leaving others
relatively untouched.
• Traditionally, the development of the UK constitution has been regarded as an incremental
evolutionary process. However, this no longer seems to be the case. In the words of Professor
King:

“Although few people seem to have noticed the fact, the truth is that the United Kingdom’s constitution
changed more between 1970 and 2000, and especially between 1997 and 2000, than during any
comparable period since at least the middle of the 18th century.”

• In support of this observation Professor King enumerates 12 important individual changes that
have taken place in the UK Constitution since 1970. These are as follows:
1. Joining the EEC
2. The use of popular referendums
3. The changing position of local government
4. The increasing use of judicial review
5. The fragmentation of the political party system
6. The handing over of control over interest rates to the Bank of England

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 7. Devolution to Scotland and Wales
8. Devolution to Northern Ireland
9. The creation of a new local authority for London
10. New electoral systems for electing members of the European and Scottish Parliaments and the
Welsh Assembly
11. The Human Rights Act 1998
12. The reform of the House of Lords.
• Writing several years after Professor King, Professor Bongdanor has argued that the years since
1997 have been unprecedented and perhaps uncompleted series of constitutional reforms. His
list of reforms, which number 15, is broadly similar to that identified by Professor King with the
obvious exception of the significant modifications made to the office of Lord Chancellor and
establishment of a Supreme Court.

HISTORY OF BRITISH CONSTITUTION

“The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law.”
-Jack Straw, Secretary of State for Justice, 2008

Many nations around the world govern through a written constitution, which lays out the fundamental
laws of the land and rights of the people in one single legal document.

Emerging nations around the world have had to start from scratch and produce a written constitution
setting out their laws and citizens’ rights. Some more established countries have had to adopt a written
constitution due to revolt or war. However, Britain escaped the revolutionary zeal of the late 18th and
19th centuries, and so the UK constitution, often referred to as the British constitution, has evolved over
centuries.

Democracy in Britain is based on Acts of Parliament, historical documents, court judgments, legal
precedence and convention.

1. MAGNA CARTA:

The earliest date in the history of our constitution is 1215 when the barons forced King John to accept
the Magna Carta, the ‘Great Charter of the Liberties of England’, which limited the power of the king,
making him subject to the law of the land. Two of its key principles, the right to a fair trial by one’s peers
and protection from unlawful imprisonment, form the basis of common law in Britain. Magna Carta
would also be a major influence on the US constitution.

The year of 2015 marked the 800th anniversary of the Magna Carta, and on that day the four surviving
copies of the 1215 document had been brought together for the first time in London.

Magna Carta, which means ‘The Great Charter’, is one of the most important documents in history as it
established the principle that everyone is subject to the law, even the king, and guarantees the rights of
individuals, the right to justice and the right to a fair trial.

➢ King John signing the Magna Carta When was it signed?

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The Magna Carta was first authorized in June 1215 at Runnymede, on the River Thames, near Windsor.
Paintings depicting the signing of the document often show King John with a quill in his hand, thought
he most likely authorized the document using the Great Seal rather than a signature.

In fact, the Royal Mint has been criticized for the design on its commemorative 800th anniversary £2
coin, which shows King John brandishing the document and a quill.

➢ Why was it created?

1215 King John agreed to the terms of the Magna Carta following the uprising of a group of rebel barons
in England.

The barons captured London in May 1215, which forced King John’s hand and caused him to finally
negotiate with the group, and the Magna Carta was created as a peace treaty between the king and the
rebels.

➢ What does it say?

The whole document is written in Latin, and the original Magna Carta had 63 clauses. Today, only three
of these remain on the statute books; one defends the liberties and rights of the English Church, another
confirms the liberties and customs of London and other towns, and the third gives all English subjects
the right to justice and a fair trial.

➢ The third says:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled,
or deprived of his standing in any other way, nor will we proceed with force against him, or send others
to do so, except by the lawful judgement of his equals or by the law of the land.

“To no one will we sell, to no one deny or delay right or justice.”

➢ Did it achieve its short-term goal of creating peace?

No. Although King John agreed to the Magna Carta at first, he disliked it when its terms were forced
upon him.

He wrote to the Pope to get it annulled, who agreed with John despite the strain between the King and
the Church at the time. The Pope called the Magna Carta “illegal, unjust, harmful to royal rights and
shameful to the English people”. He then declared the charter “null and void of all validity forever”.

The Provisions of Oxford in 1258 set out the basis for the governance of England. 24 members would
make up a Council governed by the monarch but supervised by a parliament. The first parliament, made
up of knights, lords and common men drawn from the towns and cities, was presided over by Simon de
Montfort, widely regarded as the founder of the House of Commons.

2. PETITION OF RIGHTS 1628:

Petition of Right, 1628, a statement of civil liberties sent by the English Parliament to Charles I . Refusal
by Parliament to finance the king's unpopular foreign policy had caused his government to exact forced
loans and to quarter troops in subjects' houses as an economy measure. Arbitrary arrest and
imprisonment for opposing these policies had produced in Parliament a violent hostility to Charles and

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George Villiers, 1st duke of Buckingham. The Petition of Right, initiated by Sir Edward Coke , was based
upon earlier statutes and charters and asserted four principles: no taxes may be levied without consent
of Parliament; no subject may be imprisoned without cause shown (reaffirmation of the right of habeas
corpus); no soldiers may be quartered upon the citizenry; martial law may not be used in time of peace.
In return for his acceptance (June, 1628), Charles was granted subsidies. Although the petition was of
importance as a safeguard of civil liberties, its spirit was soon violated by Charles, who continued to
collect tonnage and poundage duties without Parliament's authorization and to prosecute citizens in an
arbitrary manner.

3. BILL OF RIGHTS 1689:

The English Bill of Rights is an act that the Parliament of England passed on December 16, 1689. This
followed the ‘Glorious Revolution’ of 1688, in which William III and Queen Mary replaced King James II.
The Bill creates separation of powers, limits the powers of the king and queen, enhances the democratic
election and bolsters freedom of speech.

➢ Effects of the Bill-

• In England, during the Glorious Revolution of 1688, King James II abdicated and fled the country.
He was succeeded by his daughter Mary and her Dutch husband, William of Orange. Before
William and Mary could be proclaimed king and queen, they had to agree to accept the Bill of
Rights, which they did in February 1689.
• The English Bill of Rights, which was an act of Parliament, guaranteed certain rights of the
citizens of England from the power of the crown. The Bill of Rights was later added on by the Act
of Settlement in 1701. Both of these contributed to the establishment of parliamentary
sovereignty, which gives the legislative body of Parliament absolute sovereignty and makes it
supreme over all other government institutions. The Bill of Rights also shrunk many of the
powers of the crown. In fact, the United States Bill of Rights was modeled after the English Bill of
Rights.

➢ Provisions of the Bill:

• The first provision of the Bill states that the crown should have no interference with the law. The
king and/or queen may not by themselves establish new courts of law nor may they act as a
judge.
• The second provision of the Bill states that the crown may not create new taxes without approval
of Parliament. An act must be passed in Parliament in order for new taxes to be created.
• The third provision of the Bill states that Parliament may petition the crown to do something
without fear of the crown retaliating against them.
• The fourth provision states that no army may be kept during peace time without consent of
Parliament.
• The fifth provision gives the people the right to bear arms so long as they are allowed to by law.
This provision was important at the time of creation of the Bill because that point Protestants
were not allowed to bear arms, only Catholics were. This provision abolished that law and
reinstated the rights to Protestants as well as Catholics.

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 4. ACT OF SETTLEMENT 1700:
• James II's flight in 1688 had given Parliament the opportunity to alter the succession to the
English throne and to elect a King. Having once used this power to offer the throne to William
and Mary, Parliament was not hesitant in exercising its influence over the succession again.
• Apart from enacting as statute the rights of the subject, the 1689 Bill of Rights legislated that the
succession to the throne would pass first to any children of James II's two daughters Mary and
Anne before going to any children born to William by a second marriage. Furthermore, it stated
that Catholics or those married to Catholics could not succeed to the throne.

➢ The Protestant Succession-

There was little concern in 1689 that the Protestant Succession was in danger, but there was unease
when Queen Mary died in December 1694 without leaving any children.

This turned to great concern when the Duke of Gloucester, the only surviving child of Princess Anne,
died aged 11 in July 1700. This left Anne's half-brother James, the infant whose birth in June 1688 had
spurred William of Orange to invade, Anne's successor.

➢ The Hanover connection-

In June 1701 Parliament hoped to resolve this problem by passing the Act of Settlement. It confirmed
the provision of the Bill of Rights that no Catholic or person with a Catholic spouse could sit on the
throne.

The Act also legislated that, to preserve the Protestant Succession in case neither Anne nor William had
any more children, the Crown would pass at Anne's death to a Protestant relation. This was Sophia, the
electrets of Hanover in Germany, the granddaughter of James I by his daughter Elizabeth, and first
cousin to Charles II and James II.

Sophia's son George I succeeded to the throne upon Anne's death in 1714, and his descendants,
including the current Queen, have ruled Britain ever since - all because of a decision of Parliament in
1701 to alter the succession and to choose its own monarch.

5. ACT OF PARLIAMENT

The powers of the House of Lords are limited by a combination of law and convention. The Parliament
Acts, although rarely used, provide a way of solving disagreement between the Commons and the Lords.

➢ Parliament Acts: background-

Until the early years of the 20th century, the House of Lords had the power to veto (stop) legislation.

However, this arrangement was put under pressure when the House of Lords refused to pass David
Lloyd-George's 'people's budget' of 1909. Eventually, the budget was passed after a general election in
1910; a second general election was then fought on the issue of reform of the House of Lords.

➢ Parliament Act ,1911

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The result was the Parliament Act 1911, which removed from the House of Lords the power to veto a
Bill, except one to extend the lifetime of a Parliament. Instead, the Lords could delay a Bill by up to two
years. The Act also reduced the maximum lifespan of a Parliament from seven years to five years.

➢ Parliament Act ,1949

The Parliament Act 1949 further reduced the Lords' delaying powers to one year.

The Parliament Acts define the powers of the Lords in relation to Public Bills as follows:

➢ Money Bills

Money Bills (Bills designed to raise money through taxes or spend public money) start in the Commons
and must receive Royal Assent no later than a month after being introduced in the Lords, even if the
Lords has not passed them. The Lords cannot amend Money Bills.

➢ Other Commons Bills

Most other Commons Bills can be held up by the Lords if they disagree with them for about a year but
ultimately the elected House of Commons can reintroduce them in the following session and pass them
without the consent of the Lords.

6. ACT OF UNION 1707:

The Acts of Union, passed by the English and Scottish Parliaments in 1707, led to the creation of the
United Kingdom of Great Britain on 1 May of that year. The UK Parliament met for the first time in
October 1707.

Here we look at the relationship between the two independent kingdoms of England and Scotland in the
16th and 17th centuries. We explore the critical period leading up to the passing of Acts of Union by
both parliaments what happened afterwards, and the development of a British identity.

➢ Revolution and civil war

In March 1625 James VI and I died and was succeeded by his son Charles I. Unlike his father, Charles
was not interested in uniting his kingdoms - but he was determined to assert his authority in each of
them. Early struggles with his Parliament at Westminster came to a head in 1629, and for the next
eleven years he ruled by decree without summoning Parliament at all.

7. ACT IF UNION 1801:

The Act of Union came into effect on January 1, 1801, joining Ireland to Great Britain, creating the
United Kingdom of Great Britain and Ireland.

At the beginning of the 19th century, England was still at war with France, and there were fears that
Ireland would once again resort to rebellion or fall to a renewed invasion attempt by the French.

In 1799, William Pitt, the British prime minister had introduced a bill to the Irish parliament for the
unification of Ireland and Great Britain as a single kingdom. Central to this bill was the repeal of the last
two Penal laws which forbade Catholics from becoming members of parliament and exclusion from
certain public positions.

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The bill was defeated due to the resistance of many members of the Irish parliament to the proposed
Union. Many members of this Protestant parliament were antagonistic to the idea of Catholic
emancipation. This antagonism was shared by the monarch, King George lll, himself. With reluctance,
Pitt had to drop the emancipation of Catholics from the bill. The first attempt to have the Act of Union
failed in January 1799.

However, Pitt was not to be put off and throughout 1799 he, along with Lord Cornwallis the Lord
Lieutenant of Ireland and Viceroy Castlereagh the Chief Secretary, worked hard in winning over the Irish
parliament to acceptance of the bill. In order to achieve this, they had resorted to bribery and patronage
on a massive scale. Castlereagh was so disgusted by this that he wrote:

my occupation is now of the most unpleasant nature, negotiating and jobbing with the most corrupt
people under heaven…I despise and hate myself every hour for engaging in such dirty work

Their endeavors were successful and on 15th January 1800, after a very lively debate and accompanied
by street fighting in Dublin, the bill was passed with a majority of 60 by the Irish Parliament. The Union
was also ratified by the British parliament and on 1st January 1801, the two kingdoms joined together
becoming The United Kingdom of Great Britain and Ireland.

Many of the rising Catholic middle class were enthusiastic towards the Union believing that they would
soon gain emancipation. For the same reason, the Orange brethren were opposed to the union. A new
flag was created incorporating the crosses of St. Patrick, St. George and St. Andrew.

The Irish parliament was dissolved and one hundred Irish MPs and thirty-two Irish peers took their seats
in the London Houses of parliament. Another union also took place. That was the union of the Church of
Ireland to the Church of England thus sending four bishops also into the House of Lords.

Ireland would remain part of the Union until the introduction of the Anglo-Irish Agreement in 1921
bringing the War of Independence to an end.

Entry into the European Economic Community in 1973 and membership of the European Union brought
Britain under the jurisdiction of the European courts in many areas. Some people today see this as an
undermining of parliamentary sovereignty, commonly regarded as the defining principle of the British
constitution, and cite this as one of the arguments for Brexit (Britain leaving the European Union).

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