The British Constitution

1) Characteristics of British Constitution

a) Uncodified - The law in UK exist in a scattered form. They are not complied in a single piece of
document in which it can be called a constitution. There is no single source sub the constitution
b) Flexible - The fact that the UK constitution is uncodified, earns it its flexibility. An uncodified
constitution can be easily amended compared to a codified constitution. Amendment in both types of
constitution requires compliance with due procedure, however the procedures in an uncodified
constitution are simpler. In order for an amendment to take place in an uncodified constitution, only and
approval of simple majority in Parliament is required (50+1).This is a lower threshold compared to a
codified constitution where a two-third majority approval is required.
c) Monarchical - The Head of State in UK is the Queen (or King) and the Head of Government is Prime
Minister. This is in contrast with a Republican where the Head of State is the President. Although the
Queen is the Head of State, the widespread of her powers are mostly ceremonial in nature. In present
time most of her power are put to use by her Ministers (the Executive).
d) Unitary/Federal – A unitary system of government or unitary state, is a sovereign state governed as a
single entity. The main parliament is supreme and the subservient parliament exercise only powers that
the main parliament has devolved to them(devolution). There is a different between a unitary and a
federal. In a unitary system powers are vested within the Westminster parliament. In a federal system
power are vested in federal constitution. Malaysia constitution is a federal system and UK constitution is a
unitary system. However, there has been reason debate in the UK where people are arguing that UK is
moving from a unitary system to federal system which is more federal in nature as a unitary system
should have more than one parliament as UK has more than one parliament.
e) Largely unwritten n character- Sir Ivor Jennings in ‘Law of the Constitution’ states: “ If a constitution
mean a written document, the obviously Great Britain has no constitution. In countries where a such
document exists, the word has that meaning. But the document merely set out the rules determining the
creation and operation of government institution obviously Great Britain has such institution and rules.
The phrase ‘British Constitution’ is used to describe these rules.” Thus in the broader sense thus, the
word constitution refers to the whole system of government of a country, the collection of rules which
establish and regulate or govern the government. In this sense, UK has a constitution in that it has a
complex and comprehensive system of government. Unwritten part includes custom, constitution
convention.
f) Bicameral-There are two tiers of parliament. Being the House of Commons and the House of Lords.
The two houses make up the parliament. This is similar to Malaysia where there is the Dewan
Rakyat(HOC) and Dewan Negara(HOL)
g) Democratic- The membership of the House of Commons are directly elected once every 5 years. Party
that win a majority makes up the government. The leader of the political party that wins the general
elections is appointed by the Queen to be the Prime Minister, who then nominates the Ministers of the
government.
2)The Sources of The UK Constitution

# Legal
a) Statute - Statute refers to the statues that are created for the purpose of state administration. It pass
by the parliament and also known as Act of Parliament which are Parliamentary Act 1911/1949 / HOLA
199 and etc. In order to pass a statute, it will start from HOC to HOL and move to Queen. In HOC they
have to pass a majority vote before move to the HOL. In HOL check and balance will be provided and if
pass a majority vote will move to the Queen for Royal Assent.
b) Magna Carta 1215 - Aimed to protect citizens against arbitrary powers and guaranteed the right to
fair trail and trial by jury. It’s a settlement with crown and barons protecting the rights of individual,
challenging the powers of the King freedom of church & trial by jury, merchants free from exorbitant
taxation by jury.
c) Bill of Rights 1689 – Altered the balance of power in favour of parliament over the crown. After this
the crown required certain consent from parliament. (Parliament became more authoritative than the
crown)
1. Raising / keeping an army without the consent of parliament is illegal.
2. Execution of laws without the consent of parliament is illegal.
3. Jury trial is available.
4. Freedom of speech in parliament is not to be questioned in court or any place in parliament.
5. Election of members of parliament is to be free.
6. The increase of tax without parliamentary consent is illegal.
7. The crown and parliament recognition act 1689 was passed, and the meeting of Parliament Act
1694 provided that parliament must be summoned at least once in there years.
d) The Treaty of Union 1706 and 1707 - United England and Scotland under one parliament. It
preserved the law of Scotland in private tights.
e) The HRA 1998 - HRA 98 is a human rights document based on the ECHR, key provision of the ECHR
was codified into HRA 98. ( It’s a document on fundamental freedom) eg: the right to fair trial , freedom
of speech.
f) The Act of Settlement 1700 – Provided the line of succession to the throne to be only protestant
heirs, and prohibited succession to the throne of those who are Roman Catholics or many Roman
Catholics. It also provided the security of tenure for judges for good behavior. It ending the power of the
crown to dismiss judges at will.
g) ECA72 - This document make UK to be a member of the EC. In return it had to “ Relinquish its
supremacy to the EC”
h) Common Law/case law - Duty of Care(Donoghue v Stevenson), the doctrine of “Stare Decisis”, “Treat
like cases alike” , “Judicial Precedent” , “Judge made law”.
i) Royal Prerogative – Residual or arbitrary power of the crown.
j) Succession to the Crown Act 2013 - Remove male preference to the throne and remove the bar on
marrying a Roman Catholic. Royal consent no longer needed to marry a Roman Catholic.

#Non-Legal
a)Parliamentary Privilege - The rules concerning parliamentary procedure ,for example freedom of
speech , disclosure of document and etc.
b) Constitution Convention – Political practices for examples Royal Assent, Ministerial Responsibility
and etc. Constitution convention are rules but not the law as its not written.
3) The Rules of The Three Organs

The contents of most constitution stipulate the powers function and limitation of the threeorgans of
the state which are the legislature , executive and judiciary. It also includes citizens’ right and liberties ,
the ideology of the state and he relationship between the domestic/municipal law of the country and
international law.
a) Legislature – A legislature is a deliberative assembly with the authority to make laws for a political
entity such as a country or city. Legislature form important parts of model, they are often contrasted with
the executive and judicial branches of government. Law enacted by legislatures are usually known as
primary legislation.
b) Executive – The executive is the branch of government exercising authority in and holding
responsibility for the governance of a state. The executive executes and enforce law.
c) Judiciary - Judiciary also known as judicial system, judicature, judicial branch and court or judiciary
system. It’s the system of court that adjudicates legal disputes and interprets and applies law in legal
cases.

4)Argument For The Codification of The British Constitution

a) Providing better clarity to the people – Clarity would allow the law to be accessible as well as
intelligible to the people. According to Lord Bingham, there are one way to uphold the rule of law. Apart
from that, clarity will allow people to be more aware to their rights and the ever changing and evolving
laws. Every year, the UK passes numerous laws and amendments to keep up with changing time and
conditions. A codified constitution and help people to keep up with the changing laws. In short, a written
constitution would make it easier to educate citizens as to their rights, as we only need to point out to a
singular text. The present task of going through various legislation is an uphill task.
b) Providing certainty – The laws that are laid down in black and white, compiled and ready to be
accessed by the people not only provided clarity but also certainty. The law are better defined in a
codified constitution. The UK constitution suffers from many grey area, most argument revolving around
conventions and prerogative powers. In an article, “Royal Prerogative a Source of Constitution
Confusion”, Emma Rickets writes how the undefined, uncertain, residual powers retained by the
sovereign - should be replaced with clearly defined statutory law. On the other hand , unwritten
convention are impenetrable to the most people and are only understood by the political alite.
c) Better check and balance - A written constitution would serve as a check and balance mechanism
towards arbitrariness of parliament. Currently 51% of the HOC is needed to amend the British
Constitution, this means laws of the land can be changed with an ease, but if there is a written
constitution then 67% of the HOC is needed and this provides better checks.
d) Eliminates parliamentary sovereignty – At present, parliament is supreme in the UK and this is one of
the pillars to the British constitution. It is said that Parliament can make or unmake whatever law it wants,
however repugnant, totalitarian or unpopular. The infamous example would be Parliament passing a law
to ban smoking in the streets of Paris. The current system gives parliament arbitrary powers & due to the
concept of Parliamentary Supremacy they cannot be questioned. Advocates argue that such power opens
up a large possibility for Parliament to abuse its power. However what extent to Parliament would utilize
these powers is questionable.
 e) Abuse of powers – With the current parliamentary model, and without the existence of a codified
constitution, governing parties can too easily push measures onto the statute to make amendments that
suit their political benefits. Constitutional principles are able to change without support of the people.
The government of the day is able to change its principle based on its own manifesto/policies. It is better
to have a Written Constitution that acts as a check towards the actions of the government. A written
constitution would redress this problem, setting down a minimum set of procedures that govern major
constitution changes.
f) Better integrated - A codified constitution would make the different regions of the country more fully
integrated within the UK. The current structure of Scotland, Ireland and wales are complex and
asymmetrical, each at present having different rules and institutions in various statutes with no regional
tier of government.
g) Lord Woolf-“growing encroachment by the government on judicial independence is a warning that
Judges may need a written constitution to protect themselves from political influences.-Tun Salleh
Abas1988.
h) Lord Woolf-“growing encroachment by the government on judicial independence is a warning that
Judges may need a written constitution to protect themselves from political influences.-Tun Salleh
Abas1988.
i) Lord Alexander-argues that while our rights may be ultimately enforced at the ECtHR, the ECtHR itself
should be incorporated into a bill of rights preventing the need for costly trials in Strasbourg.

5) Argument Against The Codification of The British Constitution

a) It is flexible – The current uncodified constitution of the UK has an evolutionary system of

government that adapts smoothly to changing social and political conditions. This will be the case in a
codified constitution that requires compliance with complex procedures before any change is made. A
codified constitution has its laws entrenching its institution. Its imposes a danger of it becoming rigid and
more difficult to change with a danger that it might fossilize and become out of date.
b) Its not broken, why fix it? – The British system of government and its unwritten constitution works
well in its present form and “if it is not broken , why fix it?”. The UK has survived generations without a
written constitution if this has been proven effective for them, then there is no need for change. Its is
impossible to codify the constitution without changing it, and change is not wanted.
c) No political revolution. It is unnecessary – Codified constitutions around the world almost always exist
as a result of either a political revolution or a domestics catastrophe or a grant of independence from a
colonial power. None of these circumstance exist in the UK today.
d) Not worth - To create a codified constitution would require time, resources & sufficient funds,
millions of pounds would be needed to pool together which may not be worth. “William Hague” –There
is no need for a written constitution as we already have internal stability and accountability. To do so
would make judges unelected legislators. The terms would have been couched in broad terms subject to
courts and its interpretation. To make judges unelected legislators would be affront to democracy, it
would be undemocratic for unelected judges who are not accountable to the electorate at the ballot box
to be able to overturn the decision of democratically elected people.
e) Britain has never been subject to alien rule since 1066. As a written constitution is a legacy of a
foreign rule. Eg: Malaysian Federal Constitution
6) Piecemeal reforms/ Developments in the unwritten constitution

a) Northern Ireland Act 1998 (re-established the Northern Ireland assembly)

b) The Scotland Act 1998 (re-established the Scottish assembly)
c) The Government of wales act 1998 (re-established the Wales national assembly)
d) Devolution Acts 1998 (Gives autonomic powers to states)
e) Constitutional Reform act 2005 (Position of the Lord Chancellor)( No longer the head of all 3 organs
now a member of the L and the E)
f) Political Parties Elections and Referendums act 2000 ( determines who is able to and not able to make
donations to a political parties)
g) Those who are to make donations are to register their details
h) Fixed Term Parliamentary Acts 2011 (Parliament to dissolve once every 5 years)
i) Constitutional Reform and Governance Act 2010- Regulate the appointment of civil servants and all
treaties must be tabled in parliament first
j) 2012 Scottish Referendum
k) Consider British Bill of Rights by the Conservative Party (To remove HRA and reduce dependency on
the EU and the ECtHR
l) HOLA 1999 (Removed hereditary peers)
m) Parliamentary Acts 1911& 1949 (delaying powers to the HOL)
n)2016 EU Referendum (BREXIT)