Britain's unwritten constitution
- Article by: Robert Blackburn
- Theme: Magna Carta today
- Published: 13 Mar 2015
From a comparative perspective, we have what is known as an ‘unwritten constitution’, although some prefer to describe it as ‘uncodified’ on the basis that many of our laws of a constitutional nature are in fact written down in Acts of Parliament or law reports of court judgments. This aspect of the British constitution, its unwritten nature, is its most distinguishing characteristic.
The Bill of Rights
This declaration of 1689, known as the Bill of Rights, stated that it was illegal for the Crown to suspend or dispense with the law, and insisted on due process in criminal trials.View images from this item (3)
Features of Britain’s unwritten constitutionThere are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one being that in law Parliament is sovereign in the sense of being the supreme legislative body. Since there is no documentary constitution containing laws that are fundamental in status and superior to ordinary Acts of Parliament, the courts may only interpret parliamentary statutes. They may not overrule or declare them invalid for being contrary to the constitution and ‘unconstitutional’. So, too, there are no entrenched procedures (such as a special power of the House of Lords, or the requirement of a referendum) by which the unwritten constitution may be amended. The legislative process by which a constitutional law is repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is similar in kind to any other Act of Parliament, however trivial its subject matter.
Another characteristic of the unwritten constitution is the special significance of political customs known as ‘conventions’, which oil the wheels of the relationship between the ancient institutions of state. These are unwritten rules of constitutional practice, vital to our politics, the workings of government, but not committed into law or any written form at all. The very existence of the office of Prime Minister, our head of government, is purely conventional. So is the rule upon which he or she is appointed, being whoever commands the confidence of the House of Commons (the majority party leader, or head of a coalition of parties).
The Monarchy is one of the three components of Parliament (shorthand for the Queen-in-Parliament) along with Commons and Lords. In legal theory, the Queen has absolute and judicially unchallengeable power to refuse her assent to a Bill passed by the two Houses of Parliament. However, convention dictates the precise opposite and in practice she automatically gives her assent to any government Bill that has been duly passed and agreed by Parliament. Another important convention is that government ministers must have a seat in Parliament (and, in the case of the Prime Minister and Chancellor of the Exchequer, specifically in the House of Commons) in order to hold office. This is a vital aspect of what is known as the ‘Westminster system of parliamentary government’, providing a direct form of executive responsibility and accountability to the legislature.
The written documents of our unwritten constitutionThere is irony in the fact that the United Kingdom today does not have a written constitution, yet historically it has had a rich heritage of pioneering constitutional charters and documentation. First and foremost is Magna Carta (1215), the ‘Great Charter of the Liberties of England’. This established the principle that our rulers, at that time the king, could not do whatever they liked, but were subject to the law as agreed with the barons they governed. This simple concept laid the foundations for constitutional government and freedom under the law. Insofar as Magna Carta was ‘the first great public act of the nation’, it also established the direction of travel for our political system towards representative institutions and, much later, democracy itself.
Magna Carta 1215
One of the four surviving copies of the 1215 Magna Carta containing the famous clause ‘to no one will we sell, to no one deny or delay right or justice’.View images from this item (1)
Usage terms: Public Domain in most countries other than the UK
Image of the House of Commons, from True Platforme and Manner of the Sitting in the Lower House of Parliament
This is the earliest representation of the House of Commons. It is unlikely to be accurate in all its details, but it gives an impression of the tall, narrow and cramped chamber in which the House met.View images from this item (1)
Usage terms: Public Domain
The Petition of Right
The Commons asserted their interpretation of the law by presenting Charles with a ‘Petition of Right’, rather than a formal bill, implying that they were claiming the subject’s existing rights, rather than creating new ones.View images from this item (1)
- The Parliament Acts (1911–49) that regulate the respective powers of the two Houses of Parliament.
- The Representation of the People Acts (1918) (as amended) providing for universal voting and other matters of political representation.
- The European Communities Act (1972) making the UK a legal partner in the European Union.
- The Scottish, Welsh and Northern Ireland devolution Acts of 1998 (as amended) creating an executive and legislature for each of those three nations in the UK.
- The Human Rights Act (1998) establishing a bill of rights and freedoms actionable by individuals through the courts.
Recently, too, some conventions have been subject to an ad hoc codification, such as the principles of ministerial responsibilities in the Ministerial Code.
Human Rights Act 1998
The purpose of the Human Rights Act was to incorporate into UK law the rights and freedoms guaranteed under the European Convention on Human Rights (1953).View images from this item (1)
Usage terms: Open Government licence
Should the UK have a written constitution?The question then arises in this 800th anniversary year — should the UK now take steps to codify all its laws, rules and conventions governing the government of the country into one comprehensive document, ‘a new Magna Carta’? The case for a written UK constitution has been debated at our universities and by politicians of all parties for several decades and has been the subject of a House of Commons committee inquiry during the 2010–15 Parliament. If a written constitution for the future is to be prepared, it must be one that engages and involves everyone, especially young people, and not simply legal experts and parliamentarians. Some of the mystique and charm of our ancient constitution might be lost in the process, but a written constitution could bring government and the governed closer together, above all by making the rules by which our political democracy operates more accessible and intelligible to all.
The text in this article is available under the Creative Commons License.