Does UK have constitution?

“Even broken or bad promises

are better in writing” [1]

Antoine Clarke

Does the “promise” matter?

Leaving aside all the tedious and monotonous definitions of the word “constitution”, I will move straight to the point. Constitution, from broad perspectives, serves as a guarantee (maybe even a contract) between state and the citizens, who gave up their sovereignty[2] in exchange for security. Now that we are clear about the meaning, you may ask yourself whether you want your “contract” to be in a written or any other form. That, perhaps, was the reason for Antoine Clarke, not so well-known philosopher, to describe constitution as “promises” made by government. Although the British Constitution is frequently described as “unwritten”, that is a misnomer.[3] Most of the legal materials that make up the British Constitution are written down somewhere — including Magna Carta, the Parliament Acts, Human Rights and Devolution Acts. What the British lack is a codified or canonical constitution — a single document that purports to collect their constitutive commitments in one place and, perhaps, entrench that set of commitments against easy change.[4] As the word “unwritten” in the question is discarded, a new thesis: whether the fact that U.K lacks a codified or canonical constitution leaves it without a constitution (in any sense of the word) at all, can be put forward for the further development of the question. The argument whether the existence of the U.K constitution can be analyzed on a content-based (i.e. formal content of the document) approach, consequently, would now be abandoned. Instead, the functions, that is to say, more practical aspects of the body should now be our central focus in consideration. Constitutions, in most legal systems, perform two basic so-called constitutive functions: establishment, by extension, of state institutions and conferment of rights on individuals. In most jurisdictions, seemingly not in British one, there is also a third function: the entrenchment of above stated institutions and rights against easy change. Therefore, it is only the matter of above listed three functions that help to determine the existence of the constitution of UK.

“Power-conferring” Function of Constitution

The initial heading for this paragraph, “the Function of Creating Institutions of Government”, carried a broad and at the same time quite a confusing meaning. The heading would better reflect the constitution of United States, or that of the post-revolution USSR. In the case of the former, the Constitution of 1787, which Americans dogmatically place higher than any other document, created the basic institutions of government — ordained their structure, conferred their powers, limited their jurisdiction and determined methods for selection, supervision, and discharge of their officers for the newly independent state. Similarly, due to the shift (if we can name the revolution that way) in the course of the government[5], the Soviet Constitution largely performed its “creating” function. In the British instance, in which the course of the government has not faced much of shifts in a long time[6], however, the Constitution does not generally execute its “creating” role. Instead, it confers powers upon the existing institutions and limits their discretionary powers. Three major legal doctrines, namely Parliamentary Sovereignty, Separation of Powers and the Rule of Law, that “run like a thread throughout the Constitution of U.K”[7] are fundamental to the organization of a state, which primarily includes the power-conferring function. The concept of sovereignty, as pointed out by Heringa and Kiver, helps to determine the “maker” of a constitution, who is not necessarily its physical author, but rather the entity from whose authority the constitution is derived.[8] This authority resides with the sovereign: the original source of all public power from which all other power flows. Most constitutions derive their claim to authority from having been enacted by the people, a concept called popular sovereignty.[9] As an instance, the Preamble that is a vital element of most constitutions (in my case the ones that I observed — the U.S and Indian constitutions) begins with the words “We the people”, surely confirming the concept stated above that the authority is vested in the people. In the instance of the UK, John Austin points out, sovereignty as a legal concept lies with the Queen in Parliament.[10] Current disposition of Austin’s argument, however, is merely incorrect, largely due to the changes in the form of government. The powers of the Queen have been immensely evaded (at least in practice) and the well-known concept of Parliamentary Sovereignty, which makes the UK constitution exceptional internationally, came to force. The origins of the concept and partial evasion of Royal Prerogatives, however, date back to the Bill of Rights 1689, Article 1 that stated:

…the pretended power of suspending of laws, or the execution of laws by regal authority without consent of Parliament is illegal.

The literature broadly suggests that parliamentary sovereignty refers to the idea that Parliament can legislate how it chooses, that no authority supersedes it, and that, in the words of Lord Hailsham: ‘The limitations on its power are only political and moral’.[11] The supremacy of Parliament, in short, as described by AV Dicey carries the meaning that

Parliament has the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.[12]

Another popular doctrine, first propounded by Aristotle in his Politics and later by Montesquieu, is the doctrine of separation of powers that describes three branches of government: the legislative, the executive and the judicial; and prohibits the mixture of their functions or the embracement of all three by one body. Historically, all three branches were controlled by the King and his Curia Regis. Even currently, the system does not seem to have changed much, with its inconsistencies where Parliament seems to control the other two branches and the executive ministers must be the members of one of the Houses (which in its turn are the legislative branch). The concept, albeit curled, seems to exist in U.K in the form of ‘checks and balances’, which have been interpreted by Munro as a British version of separation of powers[13]. Moreover, as Lord Mustill put in R v Secretary of State for Home department ex parte Fire Brigades Union [1995] 2 AC 513: despite the formal theory suggested by Montesquieu or others, it is a peculiar British conception that Parliament, the executive and the courts have each their distinct and largely exclusive domain.[14] Consequently, the extensive exercise of the “power-conferring” doctrines of sovereignty and separation of powers (in any form — internationally analogous or British exclusive) makes a huge step towards proving the existence of the constitution of the UK itself.

Individual Rights as the Central Concern

In order to identify the compliance of the body of British constitution with provision of basic human rights, the “telos” (i.e. the end result or the purpose) of constitution, in general, should be defined.[15] Aristotle puts forward the conception of a ‘better life’ as the purpose of a constitution. It might also be assumed that a written constitution is a better way of achieving these ‘telos’. The Soviet Constitution of 1977, complete with the Helsinki agreement on human rights can be brought as an example of a failed canonical text if I began describing any kind of a written constitution as an ideal “guarantee” of the social contract mentioned in the introduction. In order to investigate the ideal constitution, as Aristotle notes in his Politics, the best way to live must be defined in the first place. You may argue that it is in reality what the Parliament is struggling to establish — the best and most comfortable way to live. Perhaps, you are right and possibly, that was the aim of the soviets when forcing their dogmatically accepted socialistic views through the so-called constitution. John Locke, in his Two Treatises of Government, supported revolutionary and seditious ideas that challenged the very basis of state authority.[16] In his writings he asserted that the people had the right to resort to revolution, once the “line in the sand”[17] was breached. When “the line” is breached, Antoine Clarke highlights, the time has come to consider Thomas Hobbes’s dilemma: is the violation so severe as to justify the horrors of a civil war?[18] The answer nowadays is usually “No. Let’s go shopping instead.” Here, Hobbes was merely pointing to the possibility of occurrence of minor infringement of human rights if it is not substantial enough to be noticed. Immanuel Kant, a well-known philosopher, suggests more current-day suitable concept of ideal constitution and stresses that governments should, as their first goal, set up a fair framework of rights within which citizens may pursue their own conception of a good life. Arguing Aristotle’s idea of a virtue, Kant says that basing the constitution on any particular conception of a good life runs the huge risk of coercion.[19] From this vantage point of Kant’s idea, it can be said that U.K lacks an ideal constitution (since Parliament theoretically sets up the virtue), yet, the set of documents regarded as constitution include the basic unamendable and unalienable human rights mentioned by Kant and many other philosophers. Additionally, those sets of documents certainly provide freedoms and possibility of setting up individual conceptions of a good life with minimum state intervention[20] (oft-cited as main points of liberal-democrats) and possibly make the second step towards proving the existence of UK constitution.

Entrenchment of its own Content

Apart from the above listed two constitutive functions, most constitutions perform a third function: entrenchment of certain institutions and rights, which are created and granted through constitution itself, against easy change. Not all constitutions do this; as stated earlier, the British constitution is not generally entrenched. (It might be more precise to say that all constitutions perform an entrenchment function in the sense that they all contain, explicitly or implicitly, a rule setting the requirements for changing their own content. In systems like the British, however, that rule is identical to the requirements for ordinary legislation.)[21] I would not be putting too much attention to the entrenchment, if it was not for the House of Commons Justice Committee’s the Constitutional Reform and Renewal report of 2009 that simply hit me with a vital idea for consideration, which stated that:

There are two models of a Constitution. One is a text which seeks to bring together the fundamental principles, sometimes called conventions, of our constitutional arrangements, the most important of which is that Parliament is sovereign…The second model is an entrenched and overarching Constitution which is more powerful than Parliament.[22]

If the question of entrenchment is considered from comparative constitutional theories — namely Legal Realism and Constitutional positivism, the former would highlight the tenuous relationship of the “working constitution” (that seemingly does exist in UK) to the “canonical text”. In many states with so-called “working constitution”, no less than in Britain, constitutional functions are pervasively performed by a “constitution outside the constitution” — that is, a set of extra-canonical norms and institutions that structure the government, confer the rights, and specify the requirements for legal change. Professor Ernest Young in his legal paper for constitutionalism points the mere difference between the norms that are practically entrenched though formally can be amended or repealed by ordinary legislation. The US Social Security Act, which is not a part of the constitution, has been given as an example of a “quasi-constitutional” law, for it has been eliminating any propositions offered to repeal the Act. In the case of the U.K, even the statutes with their constitutional importance seem to be reluctant to the entrenchment function and it is only the matter of Parliament to decide whether to entrench or repeal Acts. The absence of a wholly codified constitution and internationally exclusive concept of parliamentary sovereignty, perhaps, make it impossible for UK to entrench its body of rules regarded as constitution (with or without the performance of the entrenchment function).

In a “nutshell”

If a political scientist is asked about the key features and peculiarities of the U.K constitutional order, the answer, I suspect, would include not only canonical or entrenched features, but also features like conventions, formally constitutional — monarchical system and a large administrative bureaucracy that have no grounding in the canonical document. I do not mean to suggest that these features are illegitimate, but rather that constitutional lawyers should pay more attention to them as constitutional features. A key characteristic of the British constitution is that the appearance and reality are often different. Even if the British Constitution is not wholly codified into a single canonical document, it has a set of rules and regulations (some of them albeit unwritten) that are collectively regarded as the constitution of the United Kingdom of England and Ireland (in a more practical meaning of the word) and does not forget to perform its vital functions. By analogy, my paper would possibly fail if I do not manage to include relevant points and not because it is badly written. Even if I do the research and by mysterious forces fail to write the essay down, some Legal Realists might argue in the favor of the productive process of learning the essences. Once again addressing to the thesis — if there, in reality, no constitution existed in U.K, it would be unreasonable to study Constitutional Law of the U.K as a part of our Public Law module.

Bibliography

Printed Sources

Barnett H, Constitutional & Administrative Law (4th edn, Cavendish Publishing Limited 2002)

Benioni F, Separation of powers in written and unwritten constitutions, (Oxford University press, 2006)

Clements R. and Jones P, Q&A Public Law 2011 and 2012 (Oxford University Press, 13 January 2011)

Fenwick H and Phillipson G, Constitutional & Administrative Law (7th edn, Routledge 2011)

Munro C, Studies in Constitutional Law (2nd edn, Oxford University Press 2005)

Finer S.E, Bogdanor V and Rudden B, Comparing Constitutions (Oxford University Press 2006)

Electronic Sources

Baulet D, Dicey’s views on the rule of law and the supremacy of parliament (Everything 2, Oct 16, 2002) <http://everything2.com/title/Dicey%2527s+views+on+the+rule+of+law+and+the+ supremacy+of+parliament> accessed 2 November 2011

Blick A, ‘Codifying — or not codifying — the UK constitution: A Literature Review’ (CPCS, February 2011) < http://www.parliament.uk/pagefiles/56954/CPCS%20Literature20Review %20(4)> accessed 28 October 2011.

Clarke A, ‘The Case for Written Constitutions’ (1996) Libertarian Alliance <http://www.libertarian.co.uk> accessed 27 October 2011

University of London, Constitutional fundamentals, (n/a), P1, London International, <http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/public_law/public_ch2. pdf> accessed 28 October 2011

Young E, ‘The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda’ 10(2) Journal of Constitutional Law <http://www.law.upenn.edu/journals/conlaw/articles /volume10/issue2/Young10U.Pa.J.Const.L. 399(2008).pdf> accessed 26 October 2011