CHARACTERISTICS OF THE UK CONSTITUTION

Written and Unwritten Constitutions

Constitutions may be written or unwritten. The British constitution is largely unwritten and
uncodified. Similar to this characteristic, constitutions may be classified as rigid or flexible.
A rigid constitution is one in which amendment is very difficult, requiring special procedures to be
employed before any changes can be made. This is because the founders devise the constitution as a
complete statement of arrangement for the future; hence it is generally very difficult to amend a
written constitution for example USA.
British constitution is essentially flexible i.e. Parliament the supreme law making authority in UK
may theoretically alter the constitution at will, although in practice this can be done only with the
support of the people.
Republican and Monarchical
Constitutions may be classified according to whether they are republican or monarchical.
In a republic, such as USA, there will normally be a Head of State who is directly elected by the
people.
In Britain, the monarchy remains, with the Queen as Head of State and holds widespread formal
powers under the royal prerogative. In practice, these powers are conventionally exercised by the
elected government of the day which is headed by the Prime Minister.
Unitary and Federal
Constitutions can also be regarded as whether being unitary or flexible.
A written constitution defines which powers are exercisable by the constituent parts of the
federation states. In a federal state power is diffused rather than concentrated in any one body.
The constitution has overriding force and any conflicts between the federal government and the
state government will be determined according to it.
Britain is a unitary state with one Parliament having ultimate law making power over all constituent
nations England, Scotland and Wales. Where powers are devolved to local government and now to
assemblies of Northern Ireland, Scotland and Wales, these powers remain subject to the UK
Parliaments ultimate control.
Supreme and Subordinate
A further classification explains whether a particular constitution is supreme or subordinate.
A supreme constitution is not subject to any external superior force. Whereas, a subordinate
constitution is where as former British colonies the constitution is drafted and introduced in a
country by an external sovereign power and theoretically may be amended or repealed by that
external force.
In relation to this aspect, there is much debate regarding the British constitution following
membership of the European Union. From the standpoint of the European Court of Justice of the
Community, the treaties that establish and define the Community and Union are supreme, and
sovereign. Thus, the sovereignty of all EU member states is limited by membership.
However, from the standpoint of the British judges, the sovereignty of the British Parliament is
intact. They say that they have voluntarily accepted Union law because an ordinary Act of Parliament
the European Communities Act 1972 provides for its reception and enforcement within the
domestic courts of law.
Separation Of Power
A constitution may be classified according to whether the powers and functions of the principle
institutions of the state the executive, legislature and judiciary are separated or not. In Britain
there is no clear separation of powers.
The Unwritten Nature of the British Constitution
Britains largely unwritten constitution is the product of history and is a result of gradual evolution
rather than any conscious effort to design a complete system of constitution and government. The
1997 elections, however, ushered in a government with an agenda for significant constitutional
change, much of which has been achieved. The evolution of the constitution and the current reform
programme illustrates the flexible nature of the constitution.
The British constitution has never been designed through a basic constitutional document.
Nevertheless, it is clear that Britain has a constitution that identifies rules and procedures relating to
the principal institutions of the state.
Sources of the Constitution
UK constitution is regarded as a dispersed constitutional rulebook. This statement points towards
the need for constitutional rules that may be found in a variety of different sources.
1. The Cabinet Manual 2011 is one possible source. It was written by the UKs most senior civil
servant, the Cabinet Secretary and endorsed by the Labour Prime Minister, Gordon Brown,
and then by the Conservative Prime Minister, David Cameron.

The Cabinet Manuals possible constitutional significance was examined by several
parliamentary committees with the House of Commons Political and Constitutional Reform
Committee taking the most positive view:

The Manual, however, seems in part to be intended as or might become, whatever the
intention the basis for a shared understanding beyond the Executive of important parts of
the United Kingdoms previously uncodified constitution

Although the Cabinet Manual is not yet considered to be part of the constitution, there is no
doubt that key Acts of Parliament within the so-called statute book contain very important
constitutional rules.
Some of the key Acts include the Bill of Rights 1688, which protected freedom of speech in
Parliament and the Parliament Acts 1911 and 1949 which enabled the House of Commons,
in certain limited circumstances, to approve and obtain the Royal Assent to a Bill without the
approval of the House of Lords. The Senior Courts Act 1981 sets out the structure of the
courts in England and Wales whilst the Government of Wales Act 2006 and the Scotland
Acts 1998 and 2012 set out the terms of the devolution settlements for Wales and Scotland,
allowing a measure of self-government.

2. Another source for the dispersed constitutional rulebook can be found in the judgments set
out in case reports. In many cases broad and fundamental principles have been set out.

Judges have developed the body of constitutional case law in several different ways. One
method involves the key responsibility of statutory interpretation. As the importance of Acts
of Parliament and subordinate legislation has grown, judges have applied wider
constitutional principles when interpreting objectionable, but clear, wording.

A second method by which the courts have developed constitutional law is through the body
of law known as judicial review. Here, decisions of government ministers (and other public
bodies) are challenged on a number of technical grounds, including acting ultra vires
(beyond the powers given to them by statute) and irrationality where the decision is,
according to Lord Diplock, in the GCHQ case so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his mind to the question
to be decided could have arrived at it.

3. Constitutional conventions are another source. The Cabinet Manual defines constitutional
conventions as rules of constitutional practice that are regarded as binding in operation but
not in law. Examples of constitutional conventions include the requirement that the Prime
Minister is always a member of the House of Commons. Ministers in the government must
always, by convention, be members of the House of Commons or House of Lords. There is
also a developing convention that the House of Commons should be given the chance to
debate military operations before decisions are made, unless in the case of an emergency.

Most constitutional conventions exist in a written form of various kinds. Some conventions
dealing with the practice of government have been set out in memoranda of understanding
or concordats. These have been used as a means of describing and regulating the
relationship between the UK government in Westminster and the devolved governments in
Scotland, Wales and Northern Ireland. The Memorandum of Understanding and
Supplementary Agreements made in September 2012 between the UK government and the
devolved governments is the latest example.

Professor Richard Rawlings has described such agreements as administrative quasi-
legislation or a pseudo-contract and has highlighted how they lead in the direction of
codification of the detailed rules which are set out.
As well as concordats, conventions may be described in the form of codes. Codes are
published by government, with one of the most significant ones being the Ministerial Code
governing the conduct of ministers, including the Prime Minister.

4. EU law is another important source. The body of written EU law in the form of Directives,
Regulations etc., as well as decisions of the Court of Justice of the European Union now has
supremacy over UK law in the case of conflict.

5. International law is also a very significant source for the dispersed constitutional rulebook.
There are two types of international law: customary international law and treaties.
Customary international law has been described by Shaheed Fatima as having two
constituent elements: the actually wide-spread and consistent conduct of states (state
practice) and the belief that such conduct is required because a rule of law renders it
obligatory. Examples of customary international law include prohibitions against genocide
and torture and the right to self-determination. Treaties are, in practice, probably the most
important area of international law. Although they are usually made between nation states,
certain international organisations are sometimes parties as well. Under UK law treaties
become a source of national law when the government has signed and ratified the treaty
and Parliament has passed legislation incorporating it into UK law. This explains the
significance of the Human Rights Act 1998 which gave legal effect in the UK to the European
Convention on Human Rights (which was ratified in 1951).