Omar Bennett
The British conception of a constitution is unique in that it is uncodified, unlike most other countries. Instead of being contained in a single document, the UK constitution is spread across various statutes, conventions, judicial decisions, and treaties. This makes it harder to decipher, and its interpretation by experts becomes particularly important and influential. The UK constitution includes leading statutes such as the Bill of Rights 1689, Acts of Union 1707 and 1800, and the Human Rights Act 1998. The core principles of the British Constitution include parliamentary sovereignty, the rule of law, the separation of powers, and the independence of the judiciary. The UK's uncodified constitution provides flexibility, enabling amendments by simple majority votes in Parliament and facilitating changes such as the introduction of the Human Rights Act and devolution to Scotland, Wales, and Northern Ireland.
| Characteristics | Values |
|---|---|
| Not a 'written' or 'codified' constitution | The UK constitution is not codified in a single document, but rather spread across multiple sources. |
| No 'higher law' concept | There is no clear distinction between constitutional law and regular law, and no special procedures for constitutional change. |
| Parliamentary sovereignty | The UK Parliament has the ultimate law-making power, including the ability to create or abolish any law. |
| Rule of law | The principle of a "democratic society", with a functioning representative and deliberative democracy, that upholds human rights. |
| Separation of powers | The government is separated into executive, legislative, and judicial branches. |
| Judicial independence | The judiciary maintains its independence from other branches of government. |
| Human rights | The Human Rights Act 1998 and the European Convention on Human Rights protect fundamental rights and freedoms. |
| Flexibility | The uncodified nature allows for easier amendments and flexibility, enabling changes such as the introduction of the Human Rights Act and devolution to Scotland, Wales, and Northern Ireland. |
| Interpretation | The interpretations of experts, such as legal scholars and political journalists, can become influential and shape the understanding of the constitution. |
| Historical development | The UK's constitution has evolved over time, with sources including Magna Carta, habeas corpus, and various Acts of Parliament. |
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What You'll Learn
The UK's unwritten constitution
The UK's constitution is often referred to as 'unwritten', but this is not strictly true. While it has never been codified, or contained in a single document, the constitution does exist in various written sources, including statutes, conventions, judicial decisions, and treaties. These sources, taken together, govern how the UK is run and are referred to collectively as the British Constitution.
The UK's constitution is spread across multiple documents and sources, which can make it challenging to interpret. The interpretations of experts, such as legal scholars and political journalists, have been highly influential in shaping the understanding of the UK's constitutional system. For example, the views of the legal scholar Albert Venn Dicey in the late 19th and early 20th centuries helped to establish the doctrine of 'parliamentary sovereignty', a core principle of the British Constitution.
The UK's constitution includes a range of statutes, such as the Bill of Rights 1689, the Acts of Union 1707 and 1800, the Act of Settlement 1701, the Parliament Acts 1911 and 1949, and the Human Rights Act 1998. There are also conventions, such as the monarch acting on ministerial advice and the Prime Minister sitting in the House of Commons. These conventions have been codified in documents like the Cabinet Manual.
The UK's system differs from countries with 'written' constitutions, such as the United States, where the constitution is considered the 'supreme law'. In the UK, there is no clear distinction between constitutional law and regular law, and no special procedures are required to amend the constitution. A 'constitutional statute' can be repealed or amended by a simple majority vote in Parliament, just like any other legislation.
The main disadvantage of an uncodified constitution is its complexity and the challenge of interpreting and understanding it. However, this flexibility can also be seen as an advantage. The UK's uncodified constitution has enabled amendments such as the removal of hereditary peers from the House of Lords, the introduction of the Human Rights Act, devolution to Scotland, Wales, and Northern Ireland, and the creation of the Supreme Court.
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Parliamentary sovereignty
The UK's constitution is not a single document but is spread over a number of documents and sources, including statutes, conventions, judicial decisions, and treaties. Examples of constitutional statutes include the Bill of Rights 1689, Acts of Union 1707 and 1800, the Act of Settlement 1701, Parliament Acts 1911 and 1949, the Human Rights Act 1998, and the Scotland Act. Conventions include the monarch acting on ministerial advice, the Prime Minister sitting in the House of Commons, and the Queen appointing as Prime Minister the person most likely to command the confidence of the House of Commons.
The UK's constitution is not codified, meaning it has never been brought together in a single document. This is because the UK has not experienced a major historical turning point, such as a revolution or defeat in war, that would have caused the need to codify its constitution. The lack of a codified constitution makes the UK system unique compared to most other countries, although New Zealand and Israel also lack a codified constitution.
The principle of parliamentary sovereignty is supported by the concept of a "democratic society", which underpins the European Convention on Human Rights as applied in British law. This concept of a democratic society is further reinforced by regulations such as the Representation of the People Act 1983 and the Political Parties, Elections, and Referendums Act 2000, which restrict spending and foreign interference in elections to uphold the principle that "each person has equal value".
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Rule of law
The rule of law is a fundamental principle of the UK constitution. It is one of the longest-established common law principles of governance in the country, dating back to the Magna Carta of 1215. The rule of law holds that everyone within a state should be bound by and entitled to the benefit of the law.
The rule of law has three dominant characteristics, as described by Albert Venn Dicey: firstly, the predominance of regular law over arbitrary power; secondly, equality before the law; and thirdly, that constitutional laws are not the source but the consequence of the rights of individuals. Dicey summed up the second characteristic as the idea that "no man is above the law". The rule of law is intertwined with the concept of fundamental rights, and it is broadly accepted that legislation which contravenes fundamental rights cannot be consistent with the rule of law.
The rule of law is also closely related to the concept of parliamentary sovereignty. Parliamentary sovereignty means that Acts of Parliament are the supreme source of law, and that Parliament can make or unmake any law. However, this is not without limits. For example, Parliament has acquiesced in the senior courts' ability to declare unlawful new legislation based on older Treaty-based legislation. In the UK, the rule of law has evolved to work alongside the equal application of the law to all free people, and within the framework of the constitutional monarchy to support parliamentary sovereignty.
The rule of law is necessary for a healthy democracy. It prevents the abuse of state power, requires the law to be followed by all, and ensures that legal rights are fulfilled in practice. It also provides the means for various other core aspects of democracy to be safeguarded, such as enforcing laws made by parliament and guaranteeing fair elections.
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Judicial independence
The concept of judicial independence is a fundamental aspect of the British constitution and plays a crucial role in maintaining the rule of law and safeguarding individual rights and liberties. It refers to the principle that the judiciary should be impartial and free from interference or influence by the legislative or executive branches of government.
In the British system, judicial independence is ensured through various means, including the appointment and removal of judges, security of tenure, and financial security. Judges are typically appointed through a rigorous selection process that evaluates their legal knowledge, experience, and integrity. This process aims to ensure that only the most qualified and suitable candidates are selected, promoting public confidence in the judiciary's competence and impartiality.
Once appointed, judges in the UK enjoy security of tenure, meaning they cannot be easily removed from office. This protection is crucial in safeguarding their independence, as it allows them to make decisions without fear of reprisal or removal if their rulings are unpopular or controversial. The process for removing judges may vary depending on the specific judicial position but typically involves a comprehensive investigation and review process, with decisions made by a judicial body or a panel of experts.
Financial security is another critical aspect of judicial independence. Judges in the UK are provided with salaries and benefits that are commensurate with their positions and responsibilities. This financial security shields them from potential corruption or external influences that may compromise their impartiality. It ensures that judges can focus solely on interpreting and applying the law without concern for external financial pressures.
The independence of the judiciary is further strengthened by the doctrine of separation of powers, which establishes a system of checks and balances between the legislative, executive, and judicial branches of government. This separation ensures that the judiciary has the power to review and interpret laws passed by the legislature and acts carried out by the executive, ensuring compliance with the constitution and protecting citizens from arbitrary or unjust actions.
In conclusion, judicial independence is a cornerstone of the British constitution, enabling an impartial and unbiased judiciary that upholds the rule of law. Through the appointment and removal processes, security of tenure, financial security, and the separation of powers, the British system ensures that judges can perform their duties free from undue influence, maintaining the integrity and fairness of the justice system.
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Democracy and human rights
The British constitution is an uncodified constitution, meaning it is not laid out in a single document but comprises written and unwritten arrangements that establish the United Kingdom as a political body. The UK's "modern democratic constitution" upholds the principle of democracy through statutes and case law that guarantee the right to vote in fair elections. The Supreme Court of the United Kingdom recognises and affirms constitutional principles such as parliamentary sovereignty, the rule of law, democracy, and upholding international law.
The UK's commitment to democracy and human rights is also reflected in its recognition of some Acts of Parliament with special constitutional status, such as the Magna Carta, which dates back to 1215. The Magna Carta established principles such as requiring the King to obtain Parliament's consent before imposing taxes and respecting the right to a trial by lawful judgment. After the English Civil War, the Bill of Rights 1689 in England and Wales, and the Claim of Rights Act 1689 in Scotland, further enshrined principles of representative democracy, freedom of speech in Parliament, and the prohibition of cruel and unusual punishment. These ideas inspired both the US Bill of Rights and the Declaration of the Rights of Man and of the Citizen following the American and French Revolutions.
The UK has also played a role in international human rights efforts. After World War II, the UK signed the Universal Declaration of Human Rights and joined the European Convention on Human Rights (ECHR), recognising the importance of fundamental human rights and freedoms in maintaining an "effective political democracy". The Human Rights Act 1998 further codified human rights in British law, building on the UK's long tradition of respecting human rights.
The judiciary in the UK is responsible for upholding the rule of law, democracy, and human rights. The establishment of an independent Supreme Court, separate from the House of Lords, has strengthened the independence of the judiciary. The Constitutional Reform Act of 2005 further clarified the makeup of the judiciary within the Constitution, demonstrating a commitment to transparency and the rule of law.
In conclusion, the British conception of a constitution strongly emphasises democracy and human rights. This is achieved through a combination of statutory rights, case law, and international commitments, as well as an independent judiciary that upholds these principles. While the UK's uncodified constitution allows for flexibility and ease of change, it also ensures that basic standards in political, social, and economic rights are met, enabling everyone to participate meaningfully in political life.
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Frequently asked questions
A constitution is a set of principles and rules that establish and underpin a political system. It creates and defines the powers of different political institutions and determines how they should relate to each other.
The British conception of a constitution differs from most other countries in that it is largely unwritten and uncodified, i.e., it is not contained in a single document. Instead, the British Constitution is found in various statutes, conventions, judicial decisions, and treaties. Examples include the Bill of Rights 1689, Acts of Union 1707 and 1800, and the Human Rights Act 1998.
One advantage of an uncodified constitution is its flexibility, which has enabled the UK to amend laws and introduce new ones, such as the Human Rights Act. Another benefit is that it is easier to amend than a codified constitution, which often requires additional procedures. However, a disadvantage is that it is harder to understand due to its dispersed nature.
