The Role and Content of the UK Constitution
Essay in constitution: UK have a written constitution, there is not a single document, or series of related documents, codifying the main rules of the constitution. Indeed, the fact that the UK does not have a written constitution in this sense is sometimes used as part of the argument that it has no constitution at all.
However, the terms ‘written’ or ‘unwritten’ are a little misleading because, while there is no constitutional document – known as ‘The Constitution’ – in the UK, various constitutional laws, conventions or practices are to be found in Acts of Parliament, treaties, law reports and even textbooks. Moreover, since 2011 the Cabinet Manual has existed as a record of laws, rules, conventions and practices as they relate to the operation of the executive.
These problems with the written or unwritten dichotomy when referring to constitutions have led some commentators to suggest alternatives. For instance, Adam Tomkins suggests the terms ‘codified’ or ‘uncodified’, the former being synonymous with ‘written constitution’ and the latter with ‘unwritten constitution’. Others has suggested the term ‘concrete’ as an appropriate replacement for ‘written constitution’ and ‘abstract’ for ‘unwritten constitution’.
In summary, the UK has a written constitution in the sense that much of it is written down but it is not a written constitution in the way constitutional lawyers usually use the term: to mean a constitutional document codifying the main rules of the constitution.
The assertion in the question that the UK has a constitution indicates that the matter would be disputed by some and there is, indeed, a valid argument that the UK does not have a constitution. One of the best known arguments to this effect has been made by Ridley in his 1988 article: ‘There is no British Constitution: a dangerous case of the Emperor’s New Clothes’. He contends that in the UK certain ‘essential characteristics’ of a constitution are missing, including: that there is no superior constitutional law; that the constitution is not entrenched; and that the constitution did not exist prior to, and so establish, the system of government. These are arguments that may be challenged. In the first place, it may no longer be true to claim that the UK has no superior, entrenched constitutional law. In Thoburn v Sunderland City Council (2003) Laws LJ stated that there is a hierarchy of Acts of Parliament in the UK with constitutional statutes being superior to ordinary statutes. In addition, he stated that constitutional statutes could not be altered by mere implication; that is, that the implied repeal rule does not apply to them. He suggested that Parliament could alter them only by the use of express language. It should be noted here that Laws’ assertions are merely obiter dicta. They are, though, also commensurate with the House of Lords decision in R v Secretary of State for Transport, ex parte Factortame (No. 2) where the Merchant Shipping Act 1988 was held not to impliedly repeal the European
Communities Act 1972 but, rather, the 1988 Act was disapplied. The importance of Laws’ claims for present purposes are that, if he is correct, it means that constitutional statutes cannot be altered as easily as ordinary statutes and so they are, to this extent at least, a form of superior, entrenched law.
Ridley’s contention that the UK constitution did not exist prior to, and thereby establish, the system of government is correct. His criticism here echoes Paine’s assertion that a constitution should be ‘antecedent’ to the system of government and the suggestion that, where this is not the case, the government is a ‘power without right’. It is certainly the case that in many countries the constitution does establish the system of government. This will usually be because the constitution of such countries has been drafted following a significant event, such as the gaining of independence from a colonial power, which has caused a break with the past and a perceived need to create a constitution prescribing the main rules by which the government should operate. Generally speaking, there has not been such an event in the history of the UK. Rather, the UK’s constitution has developed piecemeal, over the centuries.
However, it may be asked why it should be thought more desirable that a constitution exists prior to, and establishes, the system of government. Indeed, it might be argued that it is preferable for a constitution to develop organically, as is the case in the UK, altering where appropriate to meet changing circumstances. Moreover, such piecemeal development occurs in other countries. For instance, there have been 27 amendments to the US Constitution, introducing or amending some of the most significant laws of the constitution, and it cannot be said that these laws existed before, and established, the system of government; yet no one would claim that such piecemeal development somehow invalidates the US Constitution.
In fact, it may be said that Ridley’s argument that there are essential characteristics which should be present before one can say a constitution exists is simply an argument for a particular type of constitution and that, just because the UK constitution does not fit that type, it does not mean that it does not have a constitution.
As noted above, the absence of a written (i.e. codified) constitution is sometimes used to claim that the UK does not have a constitution. Such an argument may be challenged by imagining that an Act of Parliament is passed, containing all the main existing rules of the UK constitution, and called ‘The Constitution of the UK’. In such a circumstance, it would surely no longer be possible to argue that the UK has an unwritten (or uncodified) constitution. Yet, given that no substantial change would be achieved by such an enactment, it may be argued that a written, codified constitution is not as important as may sometimes be claimed.
Finally, it may be said that the UK has a constitution because it performs the functions that one would want a constitution to exercise. In 2001 the House of Lords Select Committee on the constitution produced a working definition of a constitution. They claimed that a constitution is the ‘set of laws, rules and practices that create the basic institutions of the state and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.’ The UK can certainly meet this, more functional, definition. As the creation of the Supreme Court by the Constitutional Reform Act 2005 demonstrates, the UK has the ‘laws, rules and practices’ to enable the creation of the ‘basic institutions of state’ and to stipulate their powers. Likewise, there are laws, rules and practices governing the relationship between the different institutions of government – for instance, constitutional conventions govern the relationships among the three arms of state – and between the institutions and the individual: the Human Rights Act 1998 is an appropriate example of a law governing the relationship between the institutions of the state (public authorities in the terminology of the Act) and the individual.
