PUBLIC LAW

CHAPTER 1: BRITISH CONSTITUTION

I. “CONSTITUTION”

1. Definition:

• Governing document – collection of rules, codes, principles, arrangements and precedents that serve the
purpose of regulating and governing

• An instrument embodying the rules and basic principles governing a state/country – determining powers,
functions and rights all who come under the state

• “A document having a special legal sanctity which sets out the framework and the principal functions of
the organ of the government within the state and declare the principles by which the state must operate”:
Bradley & Ewing, Constitutional and Administrative Law (2007)

• “Body of rules and arrangements concerning the rules and arrangements of a country”: Colin Munroe

2. Purpose:

• To establish and set out a complete account of all constitutional matters in a state

• To bring together laws, legal theories, founding concepts, rules, and precedents that dictate the
relationship between the different arms of government and between the state and citizens, in particular,
powers, functions, responsibilities and rights

• To affirm particular values and goals

• To ensure that the government operates properly and without abuse of power

• To ensure stability, order, legitimacy, legality, morality and principled government and existence within
a country

3. Nature and Characteristics:

• Constitutions usually exist in the form of a document – constitutional rules and principles are codified in
one place. Examples of countries that have a codified constitution: Malaysia, India and the United States
of America.

• However, the constitution of a state may exist in an abstract manner as well – legal and non-legal sources
(written and unwritten sources) are acknowledged as forming the constitution of a country. Examples of
countries that have an uncodified constitution: Britain, Israel and New Zealand

• Constitutions can change over time – amended to accommodate growing needs or to abandon outdated
rule.

• However, the procedure for amendment varies based on countries. Constitutions are usually more
difficult to amend compared to statutes

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II. BRITISH CONSTITUTION – CHARACTERISTICS

• In other countries, many of whom have experienced foreign rule, revolution and regime change, it has
been necessary to start from scratch or begin from first principles, constructing new state institutions and
defining in detail their relations with each other and their citizens. This usually results in the adoption of
a written constitution.

• By contrast, the British Constitution has evolved over a long period of time, reflecting the relative
stability of the British polity. It has never been thought necessary to consolidate the basic building blocks
of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions,
judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus
more accurate to refer to Britain's constitution as an 'uncodified' constitution, rather than an 'unwritten'
one. (The Constitutional Unit of the University College of London)

• “The British Constitution is the collection of legal rules and non-legal rules that govern the government
in Britain”: Wheare

• “If a constitution means a written document, then obviously Great Britain has no constitution. In
countries where such a document exists, the word has that meaning. But the document merely sets out
the rules determining the creation and operation of government institutions, and obviously Great Britain
has such institutions and rules. The phrase ‘British Constitution’ is used to describe those rules.” Sir
Ivor Jennings in Law of the Constitution’

• Monarchical – the Crown is the head of the state – plays a symbolic role today

• Uncodified/largely unwritten – there is no single document containing all constitutional principles of

• Separation of Powers – executive, judiciary and legislature are largely separate in their powers,
functions and duties although overlaps exist

• Parliament is sovereign – in the absence of a single constitution document, sovereign power is vested
in Parliament is the law-making body and the arm of state that overpowers the remaining arms of state –
Parliament prevails as the sovereign authority on law and government. The supremacy of Parliament is
one of the twin pillars of the British Constitution (A.V. Dicey)

• Rule of Law and Responsible Government – the doctrine of rule of law underpins the British
Constitution. Under this doctrine, the rule and reign of law is preferred over the rule and reign of man/
institution. The doctrine propounds the supremacy of law. This doctrine is the other one of the twin
pillars of the British Constitution, alongside Parliamentary Supremacy.

• Unitary – ultimate power and authority is held by one government centralized in England – local
governments govern at the local level. Note, however, devolution of power exists but this doesn’t change
the unitary nature of the English government.

• Flexible – grown over time and capable of growing further: “Every law of every description can be
changed with the same ease and in the same manner” by Parliament (A.V. Dicey). Also, “the British
Constitution was not made, but was grown.” (Sir Ivor Jennings)

• These characteristics mark the British Constitution because there supposedly is no break in the history,
never invaded or ruled by another power. In total, it is difficult to identify what does and does not make
up the constitution

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II. SOURCES OF THE BRITISH CONSTITUTION

• Since there is no single document of constitution in the UK, all provisions that make up its uncodified
constitution exist in different forms.

• They exist broadly in two forms: written and unwritten sources

• Written sources, also known as legal sources, are the main sources of the British Constitution. They
mainly comprise statutes, i.e. Acts of Parliament – these are also called primary legislation. Primary
legislation/ statutes can then be divided further into constitutional statutes and others. Secondary
legislation can also contain constitution rules that add to written sources

• Constitutional statutes are on constitutional matters, such as: Magna Carta 1215, Petition of Rights
1628, Bill of Rights 1689, Act of Settlement 1700, Parliament Act 1911 & 1949, European
Communities Act 1972, Human Rights Act 1998, Scotland Act 1998, House of Lords Act 1999,
Constitutional Reform Act 2005, Fixed Term Parliament Act 2011, Succession to Crown Act 2013
and the European Union Referendum Act 2015. This is not an exhaustive list.

• This form of written source, also codified, is unlike an actual codified constitution because Acts of
Parliament may be repealed, or amended. There is less certainty, but greater flexibility in that
constitutional principles are not frozen in time, or set in stone.

• Yet, usually constitutional statutes are quite firmly entrenched, are rarely repealed and remain
authoritative for years to come. This is seen in Jackson v AG (2006).

• Here, the applicant challenged the validity of the Hunting Act 2004, which was passed without the
approval of the HOL. However, the Parliament Act 1949, permits legislation to be passed and received
Royal Assent even without the HOL’s approval, upon the expiry of 1 year. The applicant challenged the
validity of the Parliament Act 1949, arguing that even this legislation was passed without the approval
of the HOL. However, the House of Lords upheld the validity of both Acts on the basis of the Parliament
Act 1911. This Act allowed bills to be presented for Royal Assent without the approval of the House of
Lord, if they had been passed by the House of Commons in three successive parliamentary sessions and
two years have expired.

• It was held that Parliament Act 1911 was valid and courts had to acknowledge it is binding. The
subsequent Parliament Act 1949 that amended the 1911 Act, permitting Royal Assent for bills not
approved by the HOL after 1 year, was also acknowledged to be valid and binding. As such, the Hunting
Act 2004 too was validly legislated.

• In Jackson, Lord Bingham held that while Parliaments can be bound by procedural requirements placed
on them by previous parliaments, statutes passed by Parliament must be accepted as valid law unless
repealed.

• In this case it is clear that constitutional statutes will usually remain as sources to the constitution and
are upheld and applied by courts, without challenge. Parliament rarely repeals constitutional statutes.
However, in theory there is nothing to stop the sovereign Parliament from doing so.

• Non-written sources mainly comprise constitutional conventions and royal prerogatives. Constitutional
conventions are norms and practices that have been followed for many years. They dictate how important
constitutional matters are to be carried out in the country, such as the formation of the government and
appointment of the Prime Minister, after the election. Royal prerogatives are unwritten powers of the
Crown, that are exercised in different areas of government. These powers continue to be exercised by
the Queen today. Some of these powers are exercised by the Prime Minister on behalf of the Queen, such
as the power to declare war or enter into diplomatic ties.

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 • Other sources: Decisions of courts also form sources to the uncodified constitution. These are common
law sources – they take the form of judge-made law, also referred to as case law. Many such sources
continue to apply and bind the government to constitutional behavior long after they were decided.
Examples include: Entick v Carrington (1765), Council for Civil Service v Minister of Civil Services
(1985) (“GCHQ”), Jackson v AG (2006), R v A (2001), Burmah Oil v Lord Advocate (1965)

• However, common law sources are inferior to statutory sources, thus, their power, reliability and
prevalence as a constitutional source is not guaranteed.

IV. CODIFICATION

1. Problems with the British Constitution at present:

• An uncodified constitution creates a number of problems.

• First, it makes it difficult to know what the state of the constitution actually is. The provisions of the
constitution are also more difficult to identify. Whether a power or right truly exists is vaguer compared
to when all matters are stated explicitly in a written constitution.

• Second, it suggests that it is easier to make changes to the UK Constitution than in countries with written
constitutions, because the latter have documents with a 'higher law' status compared to statutes. Thus, it
would not be possible to simply change constitutional principles at the whim and fancy of the ruling
party. To amend a constitution usually involves a more elaborate procedure than amending a statute.

• Third, the vacuum created by the absence of a document of constitution is filled by Parliament and to
ensure its effect, it is bestowed supremacy over other institutions of the state. Parliament is sometimes
viewed as too powerful and unchecked as it is unlimited in its powers. This is dangerous seeing as the
government of the day sits in Parliament and rules through legislation.

• Fourth, the monarch is still an important component of the constitution of UK. The absence of a codified
constitution means that the exact extent of the monarch’s powers and limits thereof is not clearly spelt
out.

2. Codification – How?

• UK need not put all the current major, minor, written and unwritten sources together in one document,
specifying detailed composition, procedure, powers, rights of all components of the government and
people. This would be too complex – the constitution would be an overwhelming document

• Instead, John Kwan of The Wilberforce Society, published in A Written Constitution for the United
Kingdom suggested a constitution that entrenches fundamental rights because the HRA 1998 can be
repealed anytime, the ECHR rights need to form part of the British constitution, Courts have been
upholding rights and they are consistent with historical laws of the UK since the Bill of Rights 1689.

• John Kwan also suggested, to better clarify constitutional arrangements and the role of different
branches of government; it is important to note that a constitution does not necessarily have to specify
composition or structure of institutions but can expound general ideas of separation of powers, otherwise
the document will be overly-complex. Indeed, the US Constitution did not address electoral methods of
either the House of Representatives or the Senate.

• Looking at how the UK determines major constitutional matters such as (i) Succession to the throne, (ii)
Devolution of powers to Scotland, (iii) Brexit and (iv) anti-terrorism measures, at times there is disregard

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 for the rule of law and proper constitutional processes. Referendums held on some of these issues were
done as a matter of political expediency rather than constitutional requirement.

• Alternatives: A new Bill of Rights might be enacted focusing only on rights rather than institutional
structures (John Kwan)

• The constitution should entrench the power of the judiciary, vesting in the judiciary, the power of
interpretation of the constitution, following the model of the Supreme Court of the United States, which
can strike down legislations ruled incompatible with the constitutions. This will exercise better check on
the power of the Executive. (John Kwan)

3. Arguments for Codification

i) Clarity and certainty as to the composition, powers and roles of all the organs of the state

ii) Overcome the fear of elective dictatorship flowing from the unchecked sovereignty of Parliament and
lack of separation of powers between executive and legislature (Lord Hailsham)

iii) A written constitution would serve as a check and balance mechanism over the potential arbitrariness of
Parliament

iv) A more independent judiciary – judges are inferior to Parliament. Even though decisions like R v A
(2001) show the power of the judiciary downplaying the supremacy of Parliament, Jackson v AG (2006)
reminds us that judges’ powers may be ousted via Acts of Parliament. Judges would bound by such
legislation, if ever, and must uphold the same. Also, Lord Woolf’s opinion a written constitution would
protect the independence of the judiciary

v) Clearer separation of powers

vi) Better protection of human rights and fundamental freedoms – HRA 1998 may be repealed at any time
– Mr. Justice Sullivan’s decision on the Afghan hijackers case and Tony Blair’s response. Lord
Alexander also says that the ECHR should be directly incorporated in the form of a Bill of Rights

vii) Easier to educate the people on the working of organs of government and their rights as citizens

viii) Constitutional conventions are political customs and the executive draws its authority from such tools
rather than law – these have to be re-considered and important conventions substantiated by law and
legal principle may be codified. To exist as they do at present leaves unchecked power in the hands of
politicians

ix) Royal prerogatives and the role of the monarchy in modern day Britain – need to be clarified – is it
constitutional to maintain such powers in a democratic society – Burmah Oil v Lord Advocate (1965)

x) Jack Straw "We can learn a great deal from the US example, and particularly with regard to the
enviable notion of civic duty that seems to flow so strongly through American veins. It is made much
easier to fulfil your civic duty when you have a clear sense of to what you belong, and what is expected
from you… In the UK, many duties and responsibilities already exist in statute, common practice or are
woven into our social and moral fabric. But elevating them to a new status in a constitutional document
would reflect their importance in the healthy functioning of our democracy."

4. Arguments against Codification

i) It would take up unnecessary time and financial expenses would be high

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ii) The whole process, being so fundamental, could well be very lengthy, expensive, absorb huge media
attention and government energy and generally act to the detriment of other areas of government: Kwan

iii) Rodney Brazier: the UK has ample constitutional statutes to serve as codified constitutional documents
– a written constitution is unnecessary – Parliament is well-equipped to pass constitutional statutes as
and when needed

iv) There is no historical reason for the adoption of a written constitution – England has never been subjected
to alien rule, and after two World Wars, has managed to continue upholding a responsible, legitimate
and constitutional government

v) William Hague: “…we already have internal stability and democratic accountability, and Britain has
been well served by its unwritten constitution”.

vi) A codified constitution would increase the authority of the judiciary since it is the judiciary that will have
to resolve constitutional disputes and rule on whether the government has complied with the constitution.
Courts gain supremacy. They will have to interpret and determine constitutional matters. The constitution
will have to be worded in broad terms and judges will be dragged into the political arena, asked to
determined political matters. This would be undemocratic – judges are not elected, thus, to place power
to determine political and constitutional matters would be an affront to democracy. Lord Falconer in
his speech at the British Institute of International and Constitutional Law Seminar stated: “I do not
believe that the public want issues which most of us would regard as political being resolved by the
courts - capital punishment, abortion, racial discrimination - these are issues which the US Supreme
Court has resolved, and which we rightly expect parliament to resolve.”

vii) John Kwan agrees on this point: “power of interpretation should perhaps not be vested in the judiciary
which nevertheless consists of unelected judges.”

viii) Codification will result in placing flexible rules such as conventions in written form, thus depriving the
British Constitution of its flexibility. Some important rules must be left uncodified/ unsaid in writing, to
enable change with time. To codify everything will “freeze” the constitution and set it in stone: Foley.

ix) Hilaire Barnett argues that one of the strengths of the British Constitution is conventions. This would
be lost with codification. She says of conventions: “… such flexibility results, in part, from the use of
conventions whereby ancient ones can be discarded with ease and constitutional changes brought about
with the minimum of constitutional formality”. Codification would probably end this virtue of the current
British Constitution

x) Codification might create too strict separation of powers which might then interfere with proper
administration of the country

xi) To codify the British Constitution now could result in a very lengthy document and the length could just
make it impractical: John Kwan

xii) Jack Straw has said that a written constitution must be written on a "bipartisan, consensual basis" and
could take up to 20 years. Resort to referendums may be necessary if reforms were too sweeping.

xiii) John Kwan: a constitution now would just enshrine the present state of affairs rather than what should
be the state of affairs for all time – the preferences of the present ruling party will prevail – biased