Introduction
It is quite a complicated question whether the UK really has a constitution in its modern sense. Back in the 18th century it was not even a question; the British constitution was recognized and celebrated for its democratic spirit, particularly by French Enlighteners and some of the American Founding Fathers. But since the Americans have decided to write down their principles of government into a document and to call it “Constitution,” and a lot of other countries, such as the newly-freed Latin American colonies, followed their example, the term “constitution” is mostly associated with a document. As the UK does not have a single document of such a kind, it is sometimes claimed that the country does not have a constitution at all.
First of all, the definition of a constitution is not merely “a document containing the principles of government,” as some consider. Constitution is principles of government as they are, written down or not. To be a constitution, these principles must determine the relationship between different governmental institutions, as well as between government and people, and people’s rights and freedoms. A careful study of the sources of the UK principles of government reveals that all the three mentioned issues are covered by these sources. Political activists in the UK keep making suggestions to codify the constitution, but in each case their suggestions contain an offer to alter it, and only then codify. To my opinion, the processes of amendment and codification should not be mixed.
Hence, the UK has a constitution, even though it is not codified, and the requirements to codify it has nothing to do with its validity as an acting constitution.
The Definition of a Constitution
The first step to find out whether the UK has a constitution is to determine what exactly constitution is. According to Oxford Dictionary of law, “constitution” is defined as “the rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state” (Martin, 2003, p. 108). The dictionary entry further mentions that the majority of the countries dispose of a written document as their constitution. One of the main properties of such a disposal is a possibility to alter a constitution through a special procedure, whereas no such procedures are needed to change the statutes, of which the UK constitution partly consist. However, it also consists of common law rules and constitutional conventions (Martin, 2003, p. 108), which are hard or impossible to amend.
Constitution establishes principles that dictate who is allowed to make laws and how, what should be the relations between the main institutions of government, what are the rights and freedoms of citizens and how those are protected and guaranteed (Elliott & Quinn, 2007, p. 1). In general, the term “constitution” refers to the set of rules, according to which a government operates, rather than to a document. In case if those rules are not written or codified (i.e. collected in a single document), they are still defined as a constitution.
Anthony King distinguishes two types: constitutions and Constitutions. The first ones, he states, are never written down; they are the rules of the relationship between parts of government and government and people. Constitutions with the capital “C” are documents, in which constitutions are recorded. These two types overlap but do not coincide (King, 2011, p. 3-4).
The Existing Constitution of the UK
The next question that needs to be answered is whether the active governmental rules of the UK, which we consider our constitution, actually qualify as a constitution. For that purpose, we need to examine the current constitution of the UK.
The UK constitution can be summed up in the following central principle: the Parliament makes (or abolishes) laws with the power of the Crown, and these laws cannot be challenged. Other principles include the separation of powers and the rule of law.
The sources of the UK constitution are the following. First, statute law, which is the body of the Acts of Parliament. The Acts are considered the highest source of law due to the principle of parliamentary sovereignty. Some particular statutes are of special importance. Among them are: the Petition of Right (1628), the Bill of Rights (1689), the Parliament Act (1911), the Representation of People Acts (1918 and 1969), the Human Rights Act (1998), etc. (Leyland, 2012, 9. 39-40). The next source is common law, which means that the decisions that judges make in a legal case have an effect on future legal cases in this country. Certain legal cases have expanded the power of common law; for instance, Entick v Carrington put limits on the power of the Secretary of the State and the Crown to interfere with a person or property. However, legal decisions can be overruled by later statutes. After 1973, when the UK joined the European Union, its laws have also become part of the UK constitution.
The laws include the European Communities Act (1972), the Treaty of Rome (1957) and the subsequent treaties and the treaty of Lisbon (2007). The treaties were incorporated into the legal system of the UK by corresponding statutes (Leyland, 2012, p. 40). The European Convention of Human Rights (1998) is also a part of the constitution. It gives a person a variety of rights and allows to sue the UK at the European Court of Human Rights in the case of offense (Huxley-Binns & Martin, 2014, p. 22-23). Because of the absence of a codified constitution, legal and academic treatises such as “The English Constitution” by Walter Bagehot become a source as well (Leyland, 2012, p. 41-42).
As it can be seen, the principles of government, the rights and freedoms of individuals, the relations between governmental institutions and the law-making principles are determined by the UK constitution, which coincides with the definition of a constitution. Even though it is not codified, the UK has a constitution.
Should the Constitution Be Codified?
However, the conclusion we arrived to is not shared by some thinkers and activists. An opinion exists that, to become a proper constitution, the existing constitution of the UK has to be codified, as it is a nearly common rule in the most countries of the world. Since the 1970-s, there have been multiple proposals to codify the constitution, both by groups and by individuals of various political background. It must be mentioned, though, that these proposals suggest altering the constitution along with its codifying. There is a tendency to demand popular sovereignty and to propose supplanting with constitutional supremacy, i.e. to allow judges overrule the acts of Parliament. The alteration within Parliament is often proposed; it mostly relates to the membership and the relationship with the executive branch. Various forms of the protection of rights are also suggested. Those, who propose the changes, plan to do it either through a series of amendments or through a referendum (Blick, 2011, p. 3-4).
As for my own judgment, I agree with Anthony King, who considers that the basic principles of the UK constitution are clear enough without writing them down, and explaining the details would produce a lengthy and complicated volume (King, 2011, p. 100-101). Apart from that, I do not support mixing the process of amendment with the process of codification, as those, who suggest codification projects, do. If there is a need to alter the constitution, it can be done without codification. I do not think there is a need to codify the constitution for any reasons other than following the example of foreign countries.
Conclusion
The problem of the UK constitution needs careful examination. The first step is to determine the meaning of the term “constitution.” Contrary to the popular belief, it means a set of principles of government rather than a document, in which these rules are written down. To make up a constitution, the rules should define the relationship between the parts of government and between people and government; they should describe the rights and freedoms enjoyed by people. Since the rules we have in the UK do fulfil these requirements, the UK has a valid constitution. The fact that it is not codified does not make it any less valid. The suggestions of codification have more to do with some changes in the rules than with the validity of the constitution.
References
Elliott, C., & Quinn, F. (2007). English legal system (8th ed.). Harlow, UK: Pearson Education Limited.
Huxley-Binns, R., & Martin, J. (2014). Unlocking the English legal system (Unlocking the law) (4th ed.). Hoboken, New Jersey: Taylor and Francis.
King, A. (2001). Does the United Kingdom still have a constitution? London, UK: Sweet & Maxwell.
King, A. (2011). Codifying – or not codifying – the UK constitution: A literature review. Web.
Leyland, P. (2012). The constitution of the United Kingdom: A contextual analysis (2nd ed.). Oxford: Hart Publishing.
Martin, E. (2003). Oxford dictionary of law (5th edition). Oxford, UK: Oxford University Press.