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LL4303 Public Law

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  • Course Code: LL4303
  • University: Kingston University London
  • Country: United Kingdom

Question:

Discuss the proposition that the UK does not have a ‘constitution’.

 

Answer:

Introduction

The constitution is explained to be the set of legal rules and regulations that govern the relationship between the ruled and the ruler in a state. It is said that the United Kingdom does not have a detailed constitution like any other country. It is recognized as the “so-called” Constitution of The United Kingdom. It has the principles and laws of the country. The United Kingdom has an uncodified or unwritten constitution. It has been mentioned that there are four sources through which the constitution of UK has been drawn. They are the Statute Law (those laws that are passed by the legislature), the parliamentary conventions, the common laws (laws that are passed by the judgment of the court) and the work of the authority. As compared to any written constitution, this unwritten constitution is also concerned about the relation between the citizens of the country, the state and the functioning system of the executive, the legislature and the judiciary. The notion of parliamentary sovereignty has been the main matter of concern that statutes that are passed by the parliament are a supreme and final source of law in the United Kingdom. It is said that parliament can modify the constitution by passing the new statute. The main principle of the United Kingdom constitution is The Rule of Law.

The thesis statement of this essay is that the United Kingdom has a constitution. The essay initially provides an argument against the proposition that the UK has a constitution. Further, the essay provides rebuttal against the above-discussed arguments and derives which of the two arguments are stronger and whether the UK has a constitution.

 

Body

According to Elliott (2018) a question which often arises is that whether the UK has a constitution or not. In order to explain this question there are two meanings of it and the first one is that the constitution of the state is a document that draws the important power of the nation. The second meaning would be that there is no written or textual document, but there are legislations that have some constitutional nature. There are many developed countries that have a written constitution like the United States of America and it is called as ‘United States Constitution 1787'. However, there are countries that do not have a written constitution like UK, New Zealand, and Israel. It leads to a belief that the UK does not have a constitution. It has been mentioned that the constitution of UK can be found in many acts of the parliament like Bill of Rights Act 1688 that explains that establishing taxes illegally without the prior consent of the parliament and the power of the crown. These links suggest that the bill is a textual legislation and perhaps it is said that the constitution of UK consists of written and unwritten documents.

The unwritten convention by the permission of the Queen has given the legislation that has been proposed by the parliament. The principles and rules of the constitution of United Kingdom are laid down in the ‘unrelated acts of Parliament like the Acts of Settlement 1700; Crown Proceeding Act 1947 and the Parliament Acts 1911 and 1949’.According to article 16 of the French Declaration of Rights of Man 1789 where the rights of the person in a society are not secured or there is no separation of powers then that state does not have a constitution. This means that the United Kingdom has a constitution as it has separation of powers between the monarch, the judiciary and the House of Parliament and it is linked with the definition of the constitution that separation of powers is the main principles to govern the state. The Rule of Law further claims that the United Kingdom does have a constitution. It is believed that the existence of law imposes the limits on human rulers. Rule of law means the government restricts the citizens to be within the boundaries of the country. The United Kingdom does not carry a special procedure to change the laws of the constitution. If there are any changes that need to be done in the constitution, then it is done by the judicial decisions and the existing conventional practices. In regards to the definition of the constitution, United Kingdom seems to have their principles change over the time. As time is changing and the customs and views of the people are changing, it is good that the principles of the constitution are adjusting with time so that the relationship of the government and the citizens continue to work together in a positive way. These things will make the constitution of United Kingdom more strong and apparent. As it seems to be less apparent, but the assumption is that the United Kingdom does have an existing constitution. With time, the constitution of UK is also changing like Constituencies Bill 2010-2011 and Parliamentary Voting System has got some changes in them with the consent of the Royals on 16th of February 2011. The bill regarding the changes in these systems has proposed some changes in reducing the size of House of Commons and in the system of voting. Through the Governance Act 2010 and the Constitutional Reform, there were some changes that were brought in the constitution by making some provisions in relation to the ratification of treaties. It is said that the United Kingdom does have a constitution but it is not in a written document and through various types of legislation that has some characteristics of the constitution. There are conventions that are embodied in the constitution of the United Kingdom like the Queen giving the royal assent to produce the bill in the Parliament. These statements clearly configure that the United Kingdom has a set of principles and rules that are exercised and acknowledged by the government which shows that the United Kingdom has a constitution but an unwritten one.

 


As stated by Robert (2017) constitution is a set of values and principles that every state follows but every constitution is different in other states. In the country like the United Kingdom, the government consists of legislature that issues general rules and regulation, the executive whose responsibility is to implement laws and create procedures for the government and the role of the judiciary is to be an independent judge whose work is to apply the rules that are prepared by the legislative and are enforced by executive. These parts of the government ensure as a whole that the responsibility and the authority are equally spread and avoid the chaos and the focus must be on every single person. This framework gets along with the definition of the constitution which says that "to govern the relationship between the ruled and the ruler. It has been explained that according to historical aspect, a written constitution was not written as it was introduced in the culture of Britain that passes the power to the authorities.

There are many countries that hold a constitution like India, Republic of Ireland, and United State of America. However as argued by Elliott, United Kingdom does not have a strong document that is termed as the constitution. These things permit the controlling authority to be manipulated. However, an unwritten constitution has various advantages. It includes that an unwritten constitution permits the United Kingdom in development as per the day to day progression. Secondly, United Kingdom does not carry any written document on whose basis the laws of the constitution are formed. On the other hand, it has been stated by Murkens (2017) that having a written constitution disallows the politicians to meet the political issues that can be ignored in the written constitution. Lastly, it is said that an unwritten constitution is implanted as a structure of law as a whole but a written constitution can be torn up. The progress of the United Kingdom is as realistic and rapid as it can be because the UK fits into several types of constitution.

 


Any state can be federal like the United State of America that carries a central government but the power has been divided among fifty countries. However, United Kingdom is the unitary state where the power to control the state is in the middle that is on one hand. On the other hand, sometimes constitution is rigid and it cannot be changed at any time and it makes it hard for them to meet the desire of the citizens. In the UK the constitution is flexible as it is unwritten and it is not a single-handed constitution. It has been emphasized by Lakin (2018) that the United Kingdom has all the supreme power over the executive and judiciary. This supremacy of the parliament allows passing any law but not the laws that cannot be amended in future. The authorized act of the parliament cannot be questioned. The Rule of Law has its own importance in the unwritten constitution of UK. It states that if there is any breach of law then only a person can be punished accordingly that is evident in the court. The next thing is no one is above the law and every citizen is equal in the eyes of law. All these factors clearly state that the UK does not have a written constitution. As per Jack Straw, the political member of British Labor Party who has been the Member of Parliament for Blackburn since 1979, the Constitution of Britain exists in the mind, habits and the hearts of the citizen as much it is done for the law. The citizens of Britain think that there is no need to play with the system as it has served them with proper laws since many centuries. If there is any written constitution, then there will be practical issues that might arrive like what to include and what to exclude. Later on, it could challenge the power of the Parliament to analyze the ministers instead of public. The constitution of United Kingdom has developed from common laws. Masterman, Roger and Wheatle (2017) argue that there is no proper procedure to amend the laws of UK. As it is an unwritten constitution, it secures and values the idea of the country.

This section of the paper states that the proposition that the United Kingdom does not have a constitution. On the other hand, it is said that the UK has a constitution. Although it may not be a written constitution it is evident that is it contains the characteristics of the constitution. There is a certain convention that is totally embodied in the constitution of UK. In addition to it, there will be no separation of powers between the legislative, executive and judiciary if there isn’t any constitution. On the contrary, there are proponents who clearly states that there is no constitution in the UK as it is not a written constitution. According to the above-mentioned facts, it has been stated that sincerity of the present constitution protects the state from every perspective and it strengthens the values and morals of the constitution. It clearly depends on the parliament to protect those laws and values of the constitution. The duty of the judiciary is to look after those laws and balance them and to see that whether the parliament uses this responsibility properly or not.

 

Conclusion

The essay has summed up the important findings on the study of the British constitution. The research on the constitution is a widespread assurance. British Constitution is different from many other constitutions of the other nations. It has been presented in a different way that is uncodified and unwritten. Similarly, if it is not written still it some constitutional characteristics that may be seen. It allows the constitution to be flexible and easy to amend but regular amending of the constitution can divert the mind of the citizens. However, having an uncodified constitution, it allows more flexibility for the parliament to amend the constitution. In this essay, it has been clearly mentioned about the positive and negative aspect of the unwritten constitution of United Kingdom. Both the aspects clearly state the working conditions of the unwritten constitution of the United Kingdom.

 

Bibliography

Duessel, Fabian. "Human Rights in the British Constitution: A Prisoner of History." U. Ill. L. Rev. (2017): 791.

Elliott, Mark. "Foreword to: The Supreme Court and the Constitution." (2015).

Elliott, Mark. "Judicial Power and the United Kingdom's Changing Constitution." (2017).

Elliott, Mark. "Sovereignty, Primacy and the Common Law Constitution: What Has EU Membership Taught Us?." (2018).

Hazell, Robert, and Richard Rawlings. Devolution, law making and the constitution. Andrews UK Limited, 2015.

Heywood, Andrew. Essentials of UK politics. Palgrave Macmillan, 2015.

Lakin, Stuart. "The Manner and Form Theory of Parliamentary Sovereignty: A Nelson’s Eye View of the UK Constitution?." Oxford Journal of Legal Studies 38.1 (2018): 168-189.

Leyland, Peter. The constitution of the United Kingdom: A contextual analysis. Bloomsbury Publishing, 2016.

Masterman, Roger, and Se-shauna Wheatle. "Unpacking separation of powers: judicial independence, sovereignty and conceptual flexibility in the UK constitution." Public law.2017.Jul (2017): 469-487.

McHarg, Aileen. "Unity and Diversity in the United Kingdom’s Territorial Constitution." (2018).

Moran, Michael. Politics and Governance in the UK. Palgrave Macmillan, 2015.

Murkens, Jo Eric Khushal. "Democracy as the legitimating condition in the UK Constitution." Legal Studies 38.1 (2018): 42-58.

Murkens, Jo Eric Khushal. "The Supreme Court ruling explained: The government requires primary legislation before it can change the constitution." LSE European Politics and Policy (EUROPP) Blog (2017).

Murray, Philip. "The British Constitution: Continuity and Change; Edited by Matt Qvortrup." (2014): 193.

Reed, Robert. "Re-thinking the UK Constitution." Giornale di Storia Costituzionale 34 (2017): 73.

Young, A., et al. "European Union law and the UK: The juridification of the UK Constitution." (2016).

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