The UK constitution
1- What are constitutions and why do they matter?
The term ‘constitution’ refers to the principles, rules and laws that establish and underpin a
political system. The constitution creates and defines the powers of different political
institutions and determines how they should relate to each other. It sets out the limits of
these powers and regulates the relationship between the state and its citizens.
Constitutions place both limitations and obligations on governmental organizations in
their relationship with the people, and provide opportunities for the public to influence the
political process.
2- Is the constitution of the United Kingdom written down?
It is often noted that the UK does not have a ‘written’ or ‘codified’ constitution. It is true that
most countries have a document with special legal status that contains some of the key
features of their constitution. This text is usually upheld by the courts and cannot be
changed except through an especially demanding process. The UK, however, does not possess
a single constitutional document of this nature. Nevertheless, it does have a constitution.
The UK’s constitution is spread across a number of places. This dispersal can make it more
difficult to identify and understand. It is found in places including some specific Acts of
Parliament; particular understandings of how the system should operate (known as
constitutional conventions); and various decisions made by judges that help determine how
the system works.
3- Why is the UK’s constitution different to most other modern liberal democracies?
As described above, the UK’s constitution is different from many other countries in that its
core aspects are not contained in a single legal source. This can be explained in part by UK
history. Unlike France, Italy and many other places, the UK did not experience a revolution
or moment of political rupture in the late eighteenth century or nineteenth century, when
written constitutions were at their most popular after the American Revolutionary War.
Unlike in the United States, where the constitution is the ‘supreme law’ the UK system has
no clear concept of a ‘higher law’: there is no clear distinction between what is a
constitutional law? And what is a regular law? This also means there are no special
procedures for changing the constitution itself in the UK. If it is determined to do so, a
‘constitutional statute’ can be repealed or amended by simple majority votes in Parliament,
like any other legislation. This differs from the situation in countries such as the United
States, where the constitution is ‘entrenched’ – in other words, needing to satisfy additional
requirements in order for it to be amended. The UK constitution can be altered relatively
easily by the government of the day, meaning it changes more frequently than many other
constitutions. It is often said that the UK Parliament is ‘sovereign’. This parliamentary
‘sovereignty’ means that Parliament can make or unmake any law, without being limited
by a constitutional text.
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4- Is Magna Carta (1215) our constitution?
Magna Carta (translated as Great Charter) was an agreement reached at Runnymede in
1215 between King John and a group of English barons who had been part of a rebellion
against the King. In chapter 39 and 40 it stated that:
39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or
outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with
force against him, or send others to do so, except by the lawful judgement of his equals or
by the law of the land.
40. To no one will we sell, to no one deny or delay right or justice.
Magna Carta became significant in placing formal limits on the King’s power over his
subjects, and in articulating the notion that the monarch should not be above the constraints
of the law. In this, we can see the origins of a foundational constitutional principle: the rule
of law (that everyone within a state should be bound by and entitled to the benefit of the
law).
Many look to Magna Carta in the way people in other countries might look to a ‘written’
constitution. Although the extent of what it actually secured in thirteenth-century England
has often been overstated, it no doubt represents a significant point in the development of
our constitutional system. Much of its impact came through inspiring and supporting
future developments, such as ‘habeas corpus’: that a person may not be detained without
legal reason. Furthermore, it predated the existence of the UK by five centuries, and was an
English document (though written in Latin).
5- What are the sources of the UK constitution?
The sources of the UK constitution are various, including both law and other less formal
documents, without legal force.
Acts of the UK Parliament:
Certain pieces of primary legislation enacted by the UK Parliament form a major source for
aspects of the UK constitution. These laws provide for: the devolution settlements; the right
to vote and the holding of elections; the upholding of human rights; the prohibition of
discrimination; the existence of the Supreme Court; and much else. As mentioned
previously, despite the constitutional significance of these statutes, there is no clear formal
means of distinguishing them from more regular laws which deal with policy areas such as
education and transport.
Conventions:
Are understandings about how the constitution functions. They can be hard to define
precisely and in a way that commands wide agreement; and they lack hard legal force. But
conventions are the source of some of the most important features of the UK system of
government. For instance, that the Prime Minister should be a member of the House of
Commons able to command the confidence of that institution is only a convention.
Traditionally, conventions tended not to be written down in official documents. But,
increasingly in recent decades, accounts of them have come to be included in texts published
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by bodies such as the UK government. These include the Cabinet Manual and
the Ministerial Code.
Common law: the UK has what’s known as a ‘common law’ system, meaning that judges
declare the law as derived from custom and precedent. Although it is the role of the courts to
interpret the rules, not to make them; in practice, through identifying what the law is, judges
can create it. In doing so, they have established important features of the UK constitution,
such as individual rights and the idea that public authorities are subject to limitations and
do not possess arbitrary power.
Authoritative works: In the UK system, as we have seen, the constitution is spread over a
number of documents and sources, which can make it particularly hard to decipher. Given
this, the interpretations of experts seeking to make sense of the system can become
particularly important and influential. In fact, they can become so influential to
perceptions of the system that they seem to become part of it. The views of the late
nineteenth/early twentieth century legal scholar, Albert Venn Dicey, for instance, came to
underpin the widely accepted doctrine known as ‘parliamentary sovereignty’. The political
journalist, Walter Bagehot, writing in the nineteenth century, helped shape the conception
and operation of a constitutional monarchy. Although knowledge of these works has
declined since the twentieth century, they continue to be important today, having shaped
the ideas even of those who do not know what their source is.
6- What key reforms have been made to the UK constitution over time?
Although they do not provide a comprehensive picture, we can get a sense of the changing
UK constitution through a number of key Acts of Parliament.
1536/1543: two laws now known as the ‘Acts of Union’ between Wales and England
legally incorporated Wales into England. Among other measures, the 1536 law prevented
the use of the Welsh language in court proceedings; while the 1543 Act provided more detail
to the general settlement set out in the earlier law.
The Bill of Rights 1689: the Catholic King James II was defeated in the revolution of 168889 and replaced by Mary II and William III (the Prince of Orange), ruling jointly. The Bill
of Rights in essence established the terms of his ascension to the throne, and was the outcome
of negotiation between William and contemporary political leaders. It was a statute of
particular constitutional importance in firmly establishing the authority and
independence of Parliament in relation to the monarch. Laws could no longer be suspended
or got rid of without the consent of Parliament. It also contained provisions to further protect
the liberty and security of the individual.
The Act of Settlement 1701: prevented Catholics from taking the English throne and
provided for the ascension of the House of Hanover. In doing so, it established Parliament’s
right to decide on the line of succession, further enhancing its power. It also contained
important constitutional provisions relating to the independence of the judiciary. The Act
protected the salaries and positions of judges, aiming to give them the security to enforce the
law without fear of retribution.
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The Treaty and Acts of Union of 1706-1707: provided for the union of Scotland and
England. Two Acts were passed, one by the English Parliament and one by the Scottish
Parliament, implementing the Treaty of Union. Whilst England and Scotland had the
same monarch since 1603, they retained separate legislatures. After the Acts of Union, they
united to form a single legislature: the Parliament of Great Britain, and a single state.
Nonetheless, Scotland retained its own legal system, arrangements for education, local
government, and religion.
Act of Union 1800: brought about a Union of Ireland and Great Britain. This arrangement
began on a controversial footing because it was not accompanied by measures to remove
political discrimination against Catholics.
The Parliament Acts 1911 and 1949: established in law the primacy of the House of
Commons and reduced the power of the House of Lords. The Acts meant that the Lords could
in most cases no longer veto legislation if the Commons was determined to pass it. Bills
could be presented for Royal Assent without the approval of the second chamber, as long a
certain amount of time had elapsed and certain other conditions were met. The Lords no
longer had any power at all to reject bills certified as relating to financial matters, giving
the Commons clear control over money.
The European Communities Act 1972: provided for the UK’s ascension to the three European
Communities (the European Economic Community, the European Atomic Energy
Community, and the European Coal and Steel Community). Constitutionally, the most
significant aspect of the Act was that European Community Law (later EU law) became
incorporated and binding within UK domestic law. Furthermore, it stipulated that
Community Law was ‘supreme’ within a member state, with potential conflicts between
domestic law and EU legislation overseen by the European Court of Justice. It eventually
became established that an Act of Parliament could be ‘disapplied’ in as far as it contradicted
European law – a new departure for the UK constitution.
The Human Rights Act 1998: gave direct effect in domestic law to the rights contained
within the European Convention on Human Rights, which was adopted in 1950 after the
Second World War. The 1998 Act meant that human rights cases could be heard in UK
courts, rather than individuals having to take their case to the European Court of Human
Rights. Additionally, it stipulates that as far as possible judges must interpret Acts of
Parliament so they are compatible with the rights in the Convention. If this is not possible,
they may issue a declaration stating that the legislation is incompatible. However, this does
not affect the validity of the primary legislation and the law remains the same unless it is
altered by Parliament.
The House of Lords Act 1999: reduced the size of the House of Lords and largely removed
hereditary peerages (where an individual could inherit a seat in the Lords through their
family). It reduced the number of peers from 1330 to 669.
The European Union (Withdrawal) Act 2018: repealed the European Communities Act 1972
(see above), thus removing the provision that EU legislation automatically takes effect as
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domestic law in the UK. It was introduced by the Theresa May government in 2018 as part
of the process of the UK’s exit from the European Union. It transferred all EU law onto the
UK statute book and gave ministers powers to make changes to this ‘retained EU law’ in the
future.
7- What are the advantages of having an ‘uncodified’ constitution?
Some praise the UK’s uncodified constitution for its flexibility. As the timeline above
indicates, the constitution has been modified frequently over many years in response to
changing circumstances. Its proponents argue this allows for a pragmatic approach, where
different things can be tried, tested and developed, with an optimal arrangement being
honed over time. They point to other countries with hard to change codified constitutions
that have been unable to update their political systems in line with changing attitudes and
political realities. The issue of gun ownership in the United States provides one often cited
example of this, where controls have been hard to implement because of the 2nd Amendment.
Many also believe that having an uncodified constitution is more democratic. Rather than
being bound by the decisions of past generations, it allows for each successive generation to
influence the constitution through the representatives they elect. If a party with a
constitutional reform agenda is elected, they are able to carry out what the people have voted
for. The new Labour government of 1997 had a wide-ranging constitutional programme,
including devolution and human rights, that might have been difficult to implement
otherwise. In an uncodified constitution, its supporters argue, it is elected politicians, rather
than unelected judges, who have the final say.
8- What are the disadvantages of having an ‘uncodified’ constitution?
Critics of the uncodified constitution argue that it leaves the political system open to abuse.
In the UK system, there are few checks on the power of a government with a majority in the
House of Commons, which could alter the rules for its own advantage. In theory, a powerful
government could abolish the devolved legislatures and repeal the Human Rights Act. There
are also few barriers against a government rushing through poorly thought-out changes to
the constitution.
For some the UK’s constitution is pragmatic, for others it is piecemeal. In other words,
changes often happen in stops and starts and through gradual, sporadic tweaks. When the
constitution isn’t considered as a whole, they say, it can lead to unintended negative
consequences.
Finally, many argue that the UK’s uncodified constitution is confusing and ambiguous.
This makes it more difficult for citizens to fully understand, and therefore to know when
a government is abusing its position. This lack of clarity can also be exploited by those in
power to get away with things that would be more difficult if the rules were clearer. It also
can make the business of governing harder, as there will be doubts surrounding the roles
and responsibilities of different political institutions. Proponents of a codified constitution
argue that stating clearly all in one place how the political system operates would enable the
government to better serve the public and the public to better engage with government.
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