The British constitution and the law

It is easier to say what the British constitution is not, than to say what it is.

In countries favoured with a written constitution it is easy to define the constitution. It may be the basic law, a legal document or a set of documents to which all enquiries may refer – which is interpreted and upheld by the courts, and with which other laws must comply. Britain has no codified text and we are often faced with problems of definition, description and interpretation. But, this problem might also be seen as an opportunity – to escape from the confines of a single document and include in the notion of the constitution a fuller and more realistic account of the fundamental structure of government.

In Britain there is a danger that breaking away from the confines of a written constitution leaves it exposed in embracing the whole of political activity in what is known as the ‘political system’.

The British constitution is not:

. A codified set of rules in a single document: possibly revered and certainly accepted as authoritative;

. A collection of rules handed down by a higher authority having recognised constituent power;

. Whatever the government says, does and ‘gets away with’.

However, there is a British constitution in the extensive sense in the form of rules, customs and understanding empowering and limiting government. Such a constitution is derived from political history and may perhaps best be described as a political and historical constitution.

Vernon Bogdanor characterised as follows:

"The essence of the British constitution is … better expressed in the statement that it is a historic constitution whose dominating characteristic is the sovereignty of parliament, than in the statement that Britain has an unwritten constitution".

The historical nature of the British constitution makes it to some extent a mystery to be understood only by the initiated and eliciting a loyalty based on myth rather than substance. Thus, Magna Carta, parliamentary sovereignty or the rule of law can become slogans in a sentimental argument, rather than statements or concepts of serious constitutional significance. The lack of having a full written and established constitution makes these sentiments and emotions very real. If the constitution is viewed from an historical perspective, components may well likely be discovered in laws and authoritative works and other documents.

The 'British constitution' relies very much on the courts accepting and upholding the principle of parliamentary sovereignty, although whether they accept it as a political fact or a legal rule is subject to debate and conjecture.

The sources of the British constitution include the following:

• Statute law, made by Parliament;

• Common law, made by judges working by precedent previously set or by setting precedents where necessary in order to accommodate political reality and legal principle;

• The treaties and laws of the European Community and the judgements passed by the European Court of Justice;

• Ministerial statements: the conclusions of commissions of inquiry and other official statements carrying or purporting to carry authority;

• Authoritative works by academics. Bagehot (1867/1963) and Dicey (1885/1959) having set a high standard of public influence.

The British constitution has a number of several fundamental defects and has been referred as resembling a camel - a horse designed by a committee - but without the camels fitness for purpose and its visual appeal. Areas of weakness and defect include:-

• The absence of a higher authority , except the government of the day, and in consequence some doubt, to say the least, about the enforceability of constitutional rules. The occasional intervention of the courts can remedy certain defects but broadly the courts will never be involved in every defect that surfaces from government legislation;

• Inadequate procedures for amendment, no procedure for formal amendment, and no bar to informal modification by practice;

• No basis for and no encouragement to the development of a vigorous element in the public philosophy or political culture - apart from a now diminishing respect for ancient institutions, Parliament and the monarchy;

• Inadequacy of the basic institutional provision for the limitation and accountability of power.

Against this catalogue of constitutional defects there can be set two substantial arguments.

1. Under the fundamental principle and political fact of parliamentary sovereignty, power resides effectively in the House of Commons; and, since the House is subject to periodic election by universal suffrage, power rests ultimately with the people. No doubt the government of the day has many means at its disposal to enlarge and extend its power, but in the end that power may be diminished or ended by popular vote.

2. The British historical constitution, for all its faults, is free of the litigiousness and domination by lawyers which is a normal consequence of a proper, written constitution, backed by a constitutional court. But a price has to be paid for this advantage.

Conventions

In a constitution lacking a basic foundation document, custom and practice play a larger role than is the case in a well-founded constitution. Dicey (1959, p.417) referred to these non-legal rules as the ... "conventions of the constitution or, constitutional morality" and actually inferred that some conventions were more important in constitutional terms than the law itself.

As a general take on conventions my own thoughts are that they could be open to dispute as to meaning and practical consequences because they do not carry the full-weight of the legislature. Although some conventions are very credible they do however remain static. For example, how does any Convention reflect changed perceptions of what is proper in the constitution of a modern parliamentary democracy? Statute, of course, is often amended through parliamentary bills and motions put forward such as Private Members Bills or a general acceptance by ministers to change Acts of Parliament for the better of the Act itself and/or society.

Conventions are not 'lesser laws' or laws in the making; they become law only if they are enacted as such. This is however where the great difficulty is encountered. Conventions normally relate to customary practices for which there is by definition some kind of precedent. So, if this is the case then a convention may be recognised as forming a rule which imposes an obligation on those acting within the constitution. Does it not therefore also serve the purpose on the regulation of discretion? How many Acts of Parliament are open to discretion and varying levels of interpretation? Furthermore, a convention serves a political purpose; otherwise it will not be sustained.

Attorney-General -v- Jonathan Cape Ltd [1976] QB 752

The recognition of Conventions by the courts and the way in which they are used to aid interpretation and understanding was demonstrated in the above case. However, ironically, the case also served to emphasise the non-enforceability, in the legal sense, of conventions. Although a legal paradox is generally inferred from such a case authoritative writings by Stair (Scots Law), for example, have proved highly influential in the determination of many civil cases in Scotland. Authoritative writings and Conventions are clearly one thing (written documents), a British Constitution based on an unwritten document is clearly another.

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