In previous posts we have explored the historical development of the English legal system. We have traced the story all the way back to the imperial despotism of William the Conqueror in 1066, and drawn a line through failed revolutions (the Peasants’ Revolt), Magna Carta (1215), the swelling of monarchical power (Henry VIII), the overthrow of the monarchy (Civil War), the restoration of the monarchy, and the eventual compromise between parliament and the monarch leading to the present system of constitutional monarchy.
To be terse, the present constitution of the UK – developed over centuries of struggle – gives the Queen power in name only and provides Parliament with ultimate power.
Through this narrative we can see that the UK began with a system of government imposed on the people. The subjects of England did not choose to have William the Conqueror as their ruler and they certainly did not have any affection for his brutality. This system of forcibly imposed government continued all the way through to the Glorious Revolution of 1688, when the monarchy was finally forced to relinquish many of its most despotic powers in favour of the Commons.
For the last few centuries, England has not been invaded by foreign states or had a revolution. It has not had a completely fresh start like, say, the United States. Mainly because of this, we have never quite managed to shake off the old idea that the government is imposed on us, rather than selected by us, and this more than anything has contributed to the nature of our unwritten constitution.
Take the contrasting case of the United States. There, a successful revolution took place against the English and a brand new system of government was installed. The people discarded the old system of government and started a fresh one, with a glittering new written constitution setting out what the government may and may not do. This was a government by the people, for the people, of the people, even though the category of “people” was in fact a very small slice of the population.
In the following sections, we are going to take a look at the nature of the UK’s constitution: where can you find it? what are its main principles? how can it be altered?
We are also going to look at the American constitution and draw some comparisons, always bearing in mind the following question: “Should the UK trade-in its unwritten constitution for a written one?”
What is a constitution?
In his attack on Edmund Burke, Thomas Paine (one of the USA’s founding fathers) said:
A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government. It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organised, the powers it shall have, the mode of elections, the duration of Parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and in fine, everything that relates to the complete organisation of a civil government, and the principles on which it shall act, and by which it shall be bound. A constitution, therefore, is to a government what the laws made afterwards by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.
Can, then, Mr. Burke produce the English Constitution? If he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a constitution exists, or ever did exist, and consequently that the people have yet a constitution to form.
(Thomas Paine, The Rights of Man)
Paine’s criticism centered on the unwritten nature of our constitution. You can try as hard as you like to find a concise article-by-article document containing all the provisions of our constitution, but all your efforts will be in vain. If, on the other hand, you’re an American with an interest in the American constitution, all you have to do is click here.
But is Paine correct to argue that the idea of having an “unwritten constitution” is a fallacy? Is he correct to say that a constitution which cannot easily be found in one document therefore does not exist?
Well, if we allow Paine his own definition of constitution then he is undoubtedly correct: “A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government. It is the body of elements, to which you can refer, and quote article by article.”
Take a look at that word antecedent. It means that the constitution comes before the government, which only exists because the constitutions permits it to. The government of the USA cannot alter the constitution any more than a judge in Liverpool Crown Court can alter a law passed down by Parliament. In other words, the American constitution is rigid.
Rigid vs Flexibile Constitutions
Perhaps the best authority on the UK constitution is A.V. Dicey. His book Introduction to the Study of the Law of the Constitution has been referred to by judges and even a former Prime Minister in the House of Commons. In discussing the distinction between rigid and flexible constitutions, he says the following:
A “flexible” constitution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body… A “rigid” constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.
Dicey does not agree with Tom Paine’s definition of the word “constitution” because Paine limits it to rigid constitutions. But as Dicey says:
With us, laws therefore are called constitutional because they refer to subjects supposed to affect the fundamental institutions of the state, and not because they are legally more sacred or difficult to change than other laws.
What Dicey is saying is that a law is part of the constitution if it affects the way the state is run, or the way the state can exercise its powers. For example, a law requiring Parliament to call a general election every four years impacts the state’s powers (they do not run indefinitely – just for four years). On the other hand, a law requiring dangerous dogs to be neutered has nothing to do with the powers of the state and is therefore not an element of the constitution.
For Dicey, the fact that our constitutional laws are no more sacred or difficult to change than the Dangerous Dogs Act does not mean that they do not exist. The UK does have a constitution, even if Parliament can change it at will.
So let’s reduce this concept of inflexible and flexible constitutions to a couple of easy definitions:
- Flexible constitution – The laws governing the powers of the state can be changed with as much ease as any other law.
- Inflexible constitution – The laws governing the powers of the state cannot be changed in the same way as ordinary laws. To alter the constitution requires a special procedure because the constitution is sacred.
List at least three advantages and three disadvantages of both styles of constitution.
Two bits of history – one from France and one from England – are used by Dicey to make the point that rigid constitutions may lead to violent revolutions whereas flexible constitutions allow a process of “gradual innovation” and can avoid revolutions:
In 1851 there was a violent coup d’etat in France. The French people wished to re-elect their president, but the constitution banned his re-election. The French legislature (parliament) attempted to change the constitution to allow the president to be re-elected, but the constitution was inflexible. In order to change the law and allow the re-election, three quarters of MPs had to vote in favour of the change, and this was not possible.
Since the French people saw no other way of electing their chosen candidate within the strict word of the constitution, they overthrew it.
In 1832, the English Parliament passed the Reform Act. This law allowed people in Manchester to send MPs to the House of Commons for the first time, and abolished so-called “rotten boroughs” (constituencies containing very few rich people who were essentially able to buy a seat in the House of Commons). Prior to the passing of the Reform Act, there was a period of great instability and violence which could easily have been channeled into a revolution. Thankfully, Parliament was able to change the constitution with relative ease and prevent an uprising.
The rigidity, in short, of a constitution tends to check gradual innovation; but just because it impedes change, may, under unfavourable circumstances, occasion or provoke revolution.”
However, the flexible nature of the UK’s constitution is not an absolute blessing. Look, for example, at The Guardian’s reporting on the NSA and GCHQ spying affair. For those not up-to-date with current affairs, The Guardian received classified information from Edward Snowden – a former NSA contractor – proving that the American and British spy agencies have been involved in the widespread collection of everybody’s internet data.
As The Guardian was busy publishing the information and raising the awareness of British citizens, the government forced them to destroy their hard drives. As a result, The Guardian shifted its data to the USA. Why do you think they did that?
In the UK, there is no constitutional guarantee of freedom of speech or of the right of the press to publish information in the public interest. If Parliament wants to pass a law such as, say, the Official Secrets Act, there is nothing to stop them. The constitution is flexible and Parliament can do whatever it likes.
The USA, on the other hand, has a constitutional guarantee that the government cannot interfere with the freedom of the press:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
(First Amendment to the US Constitution)
This sorry tale highlights one of the problems with our unwritten, flexible constitution: We cannot always trust Parliament to secure our best interests, our civil liberties, and our freedom. Perhaps some things – like the freedom of the press – need to be placed beyond the grasp of politicians. Politicians, after all, are concerned with re-election and are unlikely to want damaging secrets leaked out on their watch. Sometimes it is more expedient to do the easy and self-interested thing than the right thing.
According to Dicey, our constitution comprises three main elements:
- Parliamentary Sovereignty
- The Rule of Law
- Constitutional Conventions
Parliamentary sovereignty means that Parliament has the right to make or unmake any law, and there is no other body which can override or set-aside an Act of Parliament.
So, if Parliament wants to pass an Act which allows for the imprisonment without trial of all Northerners, there is nothing stopping it from doing so except, perhaps, European Union laws. But then again, there is nothing stopping Parliament from passing a law to leave the European Union.
The political theorist De Lolme summed up the matter beautifully:
It is a fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.”
Sir Edward Coke, a 16th to 17th century English judge expressed it this way:
Parliament has an absolute despotic power...It can, in short, do everything that is not naturally impossible…True it is that what the Parliament doth, no authority upon Earth can undo.”
The extent of Parliament’s power was highlighted in 1716, when Parliament decided to extend its duration by an extra four years. At the time, Parliament had been restricted by an Act of 1694 to three years, after which there would have to be an election. But Parliament wanted another four years in power and didn’t fancy having to go through an election, so they passed the Septennial Act, by which the duration of Parliament was extended from three years to seven years.
In the USA, by way of contrast, neither the executive nor the legislature is sovereign. Their powers are strictly limited by the constitution, and judges of the Supreme Court can strike-down government laws if they are unconstitutional.
To sum-up the issue of Parliamentary sovereignty, Dicey has enunciated three key principles:
- There is no law which Parliament cannot change.
- There is no distinction between constitutional laws and ordinary laws.
- Nobody and nothing can pronounce an Act of Parliament void on any grounds whatsoever.
The Rule of Law
Thomas Bingham, a former Law Lord, defined the rule of law in the following way:
All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.
Dicey summed it up under two main headings:
- No man is punishable or can be made to suffer except for a breach of the law, established by the ordinary courts of the land.
- Every man, no matter how powerful he is, is subject to the ordinary law of the land and subject to the jurisdiction of the ordinary courts.
Perhaps the pithy phrase coined by Thomas Fuller is easier to remember and understand:
Be you ever so high, the law is above you.
So what does all of this mean in practice? Perhaps it’s best to explain it by way of a scenario:
If David Cameron stabs Ed Milliband outside the Houses of Parliament, he will be arrested by the police, taken to a police station, charged with murder, and brought before the Crown Court to answer the charges. This is exactly the same process as would be followed if you or I stabbed somebody. David Cameron does not get special treatment by merit of his powerful position. He is not above the laws, he does not have a special trial in a special court administered by special judges with special rules. He is, like you or I, beneath the law and subject to its rules and procedures in exactly the same way as you or I. This scenario illuminates Dicey’s second point – that every man is subject to the law and the courts.
As for Dicey’s first point, which essentially states that “Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else,” (A.V. Dicey) the following scenario ought to provide some light:
You are walking past the Houses of Parliament and you spot David Cameron with his wife Samantha enjoying a sunlit picnic. Salivating at the prospect of giving him a piece of your mind, you walk over to him and vent your frustration at his proposed reforms to legal aid. You tell him that his Minister of Justice is an insult to the title, and suggest that he be renamed the Minister for Injustice.
David Cameron is outraged that you have disturbed his picnic and orders a nearby policeman to arrest you for “being a fearful oik and getting on my nerves”.
According to the rule of law, that policeman would have no grounds to arrest you unless you were in breach of a specific law. David Cameron cannot have you arbitrarily arrested and detained just because you’re annoying.
There is also a third element of the rule of law: the law should be accessible. This means, among other things, that the poor ought to be able to access the courts with financial help from the government; and that the law ought to be easily understood.
It is important to understand how essential the legal aid system is to the rule of law. If the government abuses its powers and causes you harm, you have a right to take the government to court and have the case decided by a judge. But if you are unemployed or poor, it is very often the case that you will be unable to afford a lawyer or court fees. Thus, unless you are provided with financial assistance your right to access the courts and the law is an illusion. The rule of law gradually comes to apply only to the well-off and an entire class of people must go without the benefit of law.
Many of the UK’s constitutional laws can be found in judicial decisions and Acts of Parliament. They can be enforced before a judge, even though Parliament can change them at will.
But some elements of our constitution are completely unwritten and unenforceable in the courts. These are known as constitutional conventions.
Dicey describes these conventions as:
Consisting of customs, practices, maxims or precepts which are not enforced or recognised by the Courts.
In essence, constitutional conventions are rules of political ethics or good manners which Parliament and the Government is expected to adhere to.
For example, there is a long-standing constitutional convention that the Queen will not refuse to put her signature on a new law which has been passed by Parliament. Her power, these days, is strictly ceremonial and she has no right to pick and choose which laws are passed.
However, if the Queen did refuse to sign a new Act of Parliament, you could not take her to court. This is not because the Queen is exempt from the rule of law, but because there is no law to state that she must sign the Act. It is simply an established custom that the Queen will not refuse to give her assent.
These constitutional conventions tend to deal with the way in which the parliament and the government uses its powers. For example, although the government has the right to make international treaties and declare war without consulting Parliament, there is a constitutional convention that the government will consult Parliament and will not ratify a new treaty or declare a new war if it is against the wishes of Parliament.
In the video below, you can see the Prime Minister discussing the proposed military strike against Syria with the House of Commons. Notice his frequent statements that it is “right” that Parliament is being consulted – not that it is a legally enforceable obligation:
- The United Kingdom’s constitution is flexible – it can be changed in the same way as any other law can be changed.
- The constitution is based on three key concepts: Parliamentary sovereignty, the rule of law, and constitutional conventions.
- Parliament is free to make or unmake any law it chooses. Parliaments under written, inflexible constitutions are not.
- Nobody is above the law or can appeal to a special court by merit of their powerful position within society.
- Constitutional conventions cannot be enforced by the courts, but they are strict rules of ethics and good manners.