This article is written by Sahaja, from NALSAR University of Law, Hyderabad. This article exhaustively explains the important aspects of the British Constitution.
Table of Contents
Introduction
England, Wales, Scotland, and Northern Ireland make up the United Kingdom of Great Britain and Northern Ireland, which is a constitutional monarchy with a parliamentary system of government. The written and unwritten procedures that establish the United Kingdom of Great Britain and Northern Ireland as a political body are referred to as the British constitution. The United Kingdom is often referred to as having an “unwritten” constitution. This is not entirely accurate as it is mostly written but in various documents. However, it has never been codified or compiled into a single document. In this regard, the United Kingdom differs from most other countries with written constitutions.
Salient features of the British Constitution
Although the British Constitution is not a completely codified one, certain rules, acts, conventions, and regulations are considered constitutional documents. These documents determine the working of the country and impart certain features to this ‘unwritten’ constitution. Some of the most significant features are listed in the following sections:
British Constitution is unwritten
As mentioned previously, the British Constitution is not a particular codified document like that which exists in India (the Indian Constitution). However, it is unwritten and is an aggregate of several documents which together constitute the rules of the land. The unwritten character of the British constitution is by far the most important element. There is no documented, accurate, and compact document that can be referred to as the British constitution. The fundamental reason for this is that it is founded on customs and political traditions that are not codified in any text. Historical Documents, Parliamentary Statutes, Judicial Decisions, and Constitutional Characters, such as the Magna Carta (1215), Petition of Rights (1628), Bill of Rights (1689), and Parliamentary Acts of 1911 and 1949, are among the written portions.
It is significant to note the British Constitution is also a mixed Constitution. The British constitution is a mix of monarchical, aristocratic, and democratic values. The institution of monarchy in England is demonstrated through the institution of kingship. The presence of the House of Lords suggests that the institution of kingship is in existence. The administration of England is aristocratic. The House of Commons is a reflection of how a full-fledged democracy works in this country. However, all of these disparate political aspects have been expertly welded together to make a flawless representative democracy.
The British Constitution keeps evolving with time
The British constitution is an example of how things have evolved over time. There was no presence of a constituent assembly to frame the British Constitution like the one that framed the Indian constitution. This nature is due to the fact that it is the result of slow growth and evolution. A particular date of its creation cannot be provided, and no one group of people can claim to be its authors. It has had a continuous evolution for over a thousand years. It has a variety of sources, and its evolution has been influenced by both accidents and high-level designs. The British Constitution is said to be the result of both wisdom and social circumstances. It has had a continuous evolution and reforms for over a thousand years from the Magna Carta to the Bill of Rights 1689 to the Act of Settlement 1701 to the Treaty and Acts of Union of 1706-1707 to Act of Union 1800 to the Parliament Acts 1911 and 1949 to the European Communities Act 1972 to the Human Rights Act 1998 to the House of Lords Act 1999 and to the European Union (Withdrawal) Act 2018.
British Constitution is flexible
One of the most obvious features of an unwritten constitution is the flexibility that comes with the uncodified structure, which might be considered a merit and demerit at the same time. A typical example of a flexible constitution is the British constitution. Because no distinction is established between constitutional legislation and ordinary law, it can be passed, changed, and repealed by a simple majority of Parliament. Both are treated the same way. The virtue of adaptation and adjustability has long been associated with the flexibility factor in the British constitution. This trait has allowed it to adapt to changing circumstances. The Indian Constitution, in contrast, is both flexible as well as rigid. However, amendments to the Indian Constitution are approved only after a tedious process.
British Constitution has a unitary character
In contrast to a federal constitution, the British constitution is unitary in character. The British Parliament, which is a sovereign body, has complete control over the administration. It is subservient to the executive organs of the state, which have delegated powers and are accountable to it. There is just one legislature in the United States unlike in the UK. England, Scotland, Wales and the rest of the United Kingdom is composed of administrative, rather than political autonomous units. Instead of adopting a federal model like the United States, the United Kingdom uses a devolutionary system in which political power is gradually decentralised. Devolution differs from federalism in the aspect that unlike federalism, in devolution, regions are not guaranteed constitutional powers.
British Constitution promotes a parliamentary executive
The United Kingdom is governed by a Parliamentary system. All of the King’s powers and authority have been taken away from him. Ministers who belong to the majority party in Parliament and continue in office as long as their party’s trust in them is maintained are the true functionaries. Acts and policies of the Prime Minister and his ministers are accountable to the legislature. The executive and legislative branches of government are not separated in this system, as they are in the Presidential form of government.
British Constitution promotes a Sovereign Parliament
Parliamentary sovereignty is a key aspect of the British constitution. Parliamentary sovereignty refers to the fact that parliament is superior to the executive and judicial spheres of the government and so has the power to adopt or repeal any law. Parliament is the sole legislative body in the country with unrestricted legislative powers, allowing it to enact, amend, and abolish any law it sees fit. There is no purer way for the courts to call into question the legality of laws approved by the British Parliament than through the courts. The parliament can even alter the constitution on its own authority as if it were ordinary law. It has the power to make what is legal, illegal and legalise what is illegal. Parliament became sovereign as a result of a series of power battles involving the king, the church, the courts, and the people throughout history.
British Constitution upholds the Rule of Law
Modern legal systems, like the United Kingdom’s, see the rule of law as a fundamental premise. It has been referred to as “as important in a free society as the democratic franchise,” and even “the ultimate governing principle on which the constitution is founded.” This prevents the Executive from acting arbitrarily. It has evolved to only work in tandem with the equal application of the law to all citizens (‘equality before the law,’) and to maintain the legal philosophy of parliamentary sovereignty within the framework of the constitutional monarchy. The main function of the judiciary is to uphold the rule of law. The principles of the rule of law are:
- In the eyes of the law, everyone is equal, regardless of their position or rank.
- This theory emphasises that the law, not any individual, is supreme.
- Without a fair and adequate trial by a competent court of law, no one can be detained or imprisoned. A person cannot be punished or deprived of his or her life, liberty, or property unless there has been a specific breach of law proven in a regular court of law through a regular procedure.
British Constitution prescribes an Independent Judiciary
The Rule of Law in the United Kingdom is protected by the fact that judges can only be removed from office for significant misconduct and only after a procedure that requires the approval of both Houses of Parliament. As a result, the judges are free to make their decisions without fear or favour. The same approach has been taken in India, where judicial independence is regarded as an unambiguous component of the Constitution.
Sources of the British Constitution
The United Kingdom’s constitution is made up of character and statute, as well as judicial decisions, common law, precedents, customs, and traditions. There are thousands of documents, not just one. The British Constitution can be found in a variety of places. The UK constitution’s sources include both law and other less formal documents that have no legal force. Acts of Parliament, court cases, and conventions in the way the government, Parliament, and the monarch act are the key sources of constitutional law.
Historical constitutional documents
The evolution of UK constitutional legislation from the establishment of England, Wales, Scotland, and Ireland to the current day is the subject of the history of the UK constitution. The history of the United Kingdom constitution dates back to a time before the four nations of England, Scotland, Wales, and Ireland were fully created, despite the fact that it was formally established in 1800. Great charters and treaties, which define and limit the Crown’s power and citizens’ rights, are the earliest source of the British Constitution. Some of the historical constitutional documents are mentioned hereunder:
Magna Carta (1215)
The Magna Carta, or “Great Charter,” was undoubtedly the most influential historical document among other influences, on the long historical process that led to the rule of constitutional law in the UK today.
After King John of England broke a number of old rules and practises that had controlled England, his subjects forced him to sign the Magna Carta, which enumerates what would later be known as human rights. The right of the church to be free from government intervention, the rights of all free citizens to own and inherit property and be protected from exorbitant taxes, and the right of widows who held property not to remarry were among them. It also included rules prohibiting bribery and official corruption.
Magna Carta’s role as a source of liberty has long been recognised. One of the fundamental stipulations of the 1215 Charter was that no one should be imprisoned without first going through the legal system. This also introduced the concept of a jury trial. ‘No free man shall be seized, imprisoned, exiled, or in any manner ruined… except by the lawful judgement of his peers or by the law of the realm,’ according to Clause 39 of the 1215 Charter. This successfully established the rule of law notion, which protects people from arbitrary punishment.
Petition of Right (1628)
The Petition of Right, which was passed on June 7, 1628, is an English constitutional instrument that establishes explicit individual safeguards against the state and is said to be on par with the Magna Carta and the Bill of Rights of 1689. It was part of a larger dispute between Parliament and the Stuart monarchy that culminated in the Wars of the Three Kingdoms, which lasted from 1638 to 1651 and were finally settled in the Glorious Revolution of 1688. King Charles-I surrendered to the Petition of Right (1628), which featured protests against taxes without Parliament’s authorisation, unjust detention, and military grievances.
Bill of Rights (1689)
It is an original Act of the English Parliament that has remained in Parliament’s possession since its inception. The Bill established the ideals of frequent parliaments, free elections, and freedom of speech in Parliament, which is now known as Parliamentary Privilege.
All of the Bill of Rights’ main principles are still in effect today, and the Bill of Rights is frequently mentioned in judicial proceedings in the United Kingdom and Commonwealth countries. It occupies a central position in a larger national historical narrative of papers that established Parliament’s rights and established universal civil liberties, beginning with the Magna Carta in 1215.
Act of Settlement (1701)
The Act of Settlement of 1701 was enacted to ensure the Protestant succession to the crown and to enhance the guarantees that a parliamentary system of government would be maintained.
Acts of the UK Parliament
An Act of the UK Parliament is an action or a step taken by the Parliament that enact new legislation or modifies existing legislation. An Act is a Bill that has received Royal Assent from the Monarch after being approved by both the House of Commons and the House of Lords. Acts of Parliament, when taken collectively, make up what is known in the United Kingdom as Statute Law. The UK constitution is based on a number of articles of fundamental law. Devolution agreements; the right to vote and elections; the protection of human rights; the prohibition of discrimination; the existence of the Supreme Court; and much more are all covered by these laws. Despite their constitutional significance, there is no obvious formal distinction between these statutes and regular laws.
These acts of influential value which have a constitutional significance, include the Act of Habeas Corpus (1679), the Act of Settlement (1701), the Reform Acts of 1832, 1867, 1884, 1918, and 1928, the Parliament Acts of 1911 and 1949, and the West Minister’s Statute of 1931, among others.
The Habeas Corpus Act safeguards an essential right against detention. A person who is imprisoned without legal basis can be released under the Habeas Corpus Act. Previously the Act of Settlement dealt with the succession of the authority, according to which, The King must be a Protestant. The right to vote (franchise) and Parliamentary representation are determined by the different Reform Acts. the Reforms Act is the main basis for election and parliamentary representation issues till date. The House of Lords’ powers is governed by the Parliament Act of 1911, as revised in 1949. The Statute of Westminster establishes the Dominion status and their connection with the home country, the United Kingdom.
The most essential source of the British Constitution is the statute law as the Parliament is a sovereign body and it makes legislations. As a result, any law passed by Parliament (a Statute Law) supersedes all other constitutional sources. In the United Kingdom, the Constitution is generally modified through Statute Law. The Human Rights Act of 1998 and the Devolution Acts of 1998 are two notable instances. As a result of Parliamentary Sovereignty, there is no way to overturn Statute Law other than for Parliament to repeal it. In Common Law, Statute Law is utilised to resolve inconsistencies or areas of ambiguity.
Common Law
The third branch of law is common law. Common law, often known as case law or precedent, is a body of law created by judges, courts, and other tribunals. It is one of the many sources of the unwritten constitution of the United Kingdom. It will be mentioned in rulings that decide particular cases, but it may also have precedential implications for future cases. The majority of the rights that the British people have today are the result of legal battles. In England, judicial decisions have established the right to personal liberty, the right to public assembly, the right to freedom of speech, and so on. It is distinguished from and is on an equal footing with statutes, which are enacted through the legislative process, and regulations, which are enacted by the executive branch.
Conventions
Constitutional conventions play an important role in the uncodified British constitution. Some regulations are followed by the various constituent components despite the fact that they are not written in any legally binding instrument. There are often underlying enforcing principles that are not codified. A convention is a rule referring to strict behaviour that does not have the authority of law. Certainly, repeated practice can become formalised as a norm of conduct and, in that sense, become customs. Conventions are however obeyed by the people because they are extremely beneficial to the government’s smooth operation. Written conventions include ‘the Cabinet Manual‘ and ‘the Ministerial Code.’ Conventions have traditionally not been put down in official papers. However, in recent decades, accounts of them have become increasingly common in writings published by institutions such as the UK government. The courts’ approach to constitutional conventions is unquestionably distinct from their approach to legal standards. Conventions are beyond the scope of the courts’ authority to rule on.
Works of Authority
Books created by constitutional theorists that are regarded as authoritative guides on the UK’s uncodified constitution are known as works of authority on the UK constitution. On England’s constitutional law, legal authorities and notable jurists have written opinions. Arson’s Law and Customs of Constitution, May’s Parliamentary Practice, and Dicey’s Law of Constitution are considered authoritative commentaries on English constitutional law and practice. Because the United Kingdom lacks a codified constitution, these documents serve as guides to the country’s regulations and practises. Acts of Parliament can either adopt or override them.
Institutions
The Parliament
Over the course of three centuries, the British Parliament has evolved. Because there is no written constitution in the United Kingdom, the Parliament can be said to be the sole entity that exercises sovereign powers and has no boundaries. The British Parliament is bicameral, meaning it consists of two houses or chambers: the House of Lords (whose strength is not fixed) and the House of Commons (whose strength is fixed) (strength fixed at 650 members). Hereditary members make up the House of Lords.
The House of Lords
The House of Lords is the United Kingdom’s bi-cameral (two-chamber) parliament’s second chamber, or upper house. The House of Lords, along with the House of Commons and the Crown, make up the UK Parliament. Members of the house are divided into four categories: life peers, law lords, bishops, and elected hereditary peers. The House of Lords has the power to propose and pass amendments. Its powers, however, are restricted; if it does not agree with a piece of legislation, it can only postpone its enactment for up to a year. Following that, there are rules in place to ensure that the views of the House of Commons and the current government are carried out.
The House of Commons
The Speaker of the House of Commons presides over the lower chamber. The number of members fluctuates slightly over time as the population changes. In current practice, the Prime Minister leads the government and is always a member of the House of Commons majority party or a coalition. Although members of the House of Lords have served as Cabinet ministers, the Cabinet is usually made up of House of Commons members who belong to the majority party. Despite being the head of government and a member of Parliament, the Prime Minister is no longer the leader of the House of Commons. The Speaker of the House of Commons is the majority party’s chief spokesman.
Amendments and changes to the British Constitution
An amendment is a change to the wording of a Bill or a motion offered by a member of the House of Commons or the House of Lords. The term “consideration of amendments” refers to the final step of a bill’s development. When a Bill is passed by one House and then amended by the other House, the first House must consider the amendments.
The Executive
In the United Kingdom, the executive is known as the Crown. Previously, the Crown represented the monarchy. The King is now a member of the Crown. Her Majesty Queen Elizabeth II, a hereditary queen since 1952, is the formal head of state. The King, Prime Minister, Council of Ministers (CoM), Permanent Executive, Civil Servants, and the Privy Council make up the Crown as an institution.
The United Kingdom is governed by a Cabinet system. A cabinet is a form of governance that is multiple or collegiate. The entire Council of Ministers wields power, not just one individual. “All Ministers Sink and Swim Together,” is the principle. It is founded on a sense of shared responsibility for the Lower House. The Cabinet came from the Privy Council, which was established to advise the King.
The Monarchy
In the United Kingdom, monarchy is the oldest form of governance. In a monarchy, the head of state is a king or queen. The monarchy of the United Kingdom is regarded as a constitutional monarchy. This means that, while the Sovereign is the Head of State, an elected Parliament has the power to make and pass legislation. Despite the fact that the monarch no longer has a political or executive role, he or she continues to play a vital role in the country’s administration. The monarch is the head of state in the United Kingdom’s uncodified Constitution. Excluding the monarch’s responsibility, decisions to exercise sovereign powers are delegated from the monarch to ministers or officers of the Crown, or other public entities, either by statute or by convention.
As head of the state, the Monarch’s principal responsibilities include appointing the Prime Minister and all other ministries, opening new sessions of parliament, and giving royal assent to measures enacted by parliament, indicating that they have become law. As ‘Head of Nation,’ the Monarch has a less formal role. The Sovereign serves as a focal point for national identity, solidarity, and pride, as well as providing a sense of stability and continuity, formally recognising success and greatness, and encouraging voluntary service.
The Judiciary
In the United Kingdom, the judiciary is responsible for safeguarding the rule of law, democracy, and human rights. The composition of the judiciary is clearly demonstrated for the first time inside the Constitution, thanks to the Constitutional Reform Act of 2005. This type of codified law establishes a new arm of government. Separate from the House of Lords, an independent Supreme Court has been established, with its own appointment mechanism, staff, budget, and facility. Because Parliament is sovereign, the government can utilise amendment legislation to try to override court judgements. The power of judicial review gives the courts the ability to play a substantial role in the policymaking process.
Merits and demerits of an uncodified Constitution
The uncodified constitution, according to some, leaves the political system vulnerable to exploitation. There are a few restrictions on the authority of a government with a majority in the House of Commons to change the rules for its own benefit in the UK system. A strong government may theoretically dissolve devolved legislatures and remove the Human Rights Act. There are likewise few hurdles to a government ramming through ill-considered constitutional amendments. Every government branch’s powers are defined and established in codified constitutions. This means that individual government branches have restricted power in terms of enforcing laws, formulating laws, and forming government bodies, so that none of them may dominate the others.
The legislative branch of government has the authority to define and enact laws that govern society’s inner workings. Countries with codified constitutions limit this branch’s power, ensuring that the laws it makes are not damaging to society. Uncodified constitutions do not contain provisions that prevent the creation of legislation that may exacerbate inequality in a society, provide protection to the wealthy, or even limit the rights of the poor. Because an uncodified constitution is unrestricted, it may collect excessive taxes or even send its men to war without popular support. The greatest problem of an uncodified constitution, however, is the formation of conflict. Because there are no written laws, there may be misconceptions about customs and the application of the constitution’s provisions.
However, an uncodified constitution is highly beneficial as well, in many aspects. There are no specific methods for drafting constitutional law, unlike a codified constitution, and it will not be necessarily superior to other legislation. A country with an uncodified constitution lacks a defining moment when its government’s ideals were deliberated. Instead, they are permitted to develop in response to the political and social factors that have arisen over time.
The unwritten nature of the UK constitution is a result of history and the gradual evolution of concepts and regulations. Unlike in other countries, where the codification of the constitution is given special attention, the UK has never done so. Despite the lack of definition, it is clear that the United Kingdom has a constitution that outlines the norms and procedures that govern governmental institutions.
The UK constitution is highly flexible and can easily evolve and adapt to changing circumstances because it is an unwritten constitution. In order to accommodate new trends, attitudes, and ideas, regulations must be changed in modern times. All that is required is for parliament to recognise the need for change and to keep amending the law. As a result, historic provisions in the UK constitution are observed to not stifle progress, but rather are subject to revision in order to conform with changing circumstances.
Parliament and Brexit
The un-codified and unwritten nature of the British Constitution caused a crisis during Brexit and there was an uncertainty as to how the matters of constitutional importance would then be dealt with. The absence of a codified constitution resulted in a serious constitutional debate regarding what a government can do without Parliament’s assent. The lack of clear referendum rules highlighted an underlying political debate of who has ultimate sovereignty.
Conclusion
The United Kingdom’s Constitution is in constant flux due to its lack of codification. Each new statute, each new big judicial decision, adds another stone to the British Constitution’s building. As a result, the British constitution is always changing, albeit slowly and often subtly. Britain advances through evolution rather than upheaval.
References
- https://consoc.org.uk/the-constitution-explained/the-uk-constitution/#what-are-the-sources-of-the-uk-constitution
- https://www.ucl.ac.uk/constitution-unit/explainers/what-uk-constitution
- https://about-britain.com/institutions/constitution.htm
- https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
