The British Constitution

Professor Albert Venn Dicey

"`No unbiased observer,' writes Hallam in 1818, who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England as the most beautiful phenomenon in the history of mankind. Climates more propitious may impart more largely the mere `enjoyments of existence; but in no other region have the benefits that political institutions can confer been diffused over so extended a population; nor have any people so well reconciled the discordant elements of wealth, order, and liberty.

These advantages are surely not owing to the soil of this island, nor to the latitude in which it is placed; but to the spirit of its laws, from which, through various means, the characteristic independence and industriousness of our nation have been derived. The constitution, therefore, of England must be to inquisitive men of all countries, far more to ourselves, an object of superior interest; distinguished, especially, as it is from all free governments of powerful nations, which history has recorded, by its manifesting, after the lapse of several centuries, not merely no symptom of irretrievable decay, but a more expansive energy.' "

Commentary :
A most eloquent defence of the British constitution.

(The language and spelling used is of the early 19th century, which explains the way in which they are used).

The United Kingdom has no written constitution in the sense that it is written down in a single or set of documents.It does however have various legal and non- legal sources which taken as a whole form a body of constitutional law which is widely referred to as an unwritten constitution.

Characteristics or features of the U.K. unwritten constitution
1. The Constitution is not `written' in the sense of having a single document defining the powers of government and rights of individuals. Nevertheless many sources of constitutional law are written and these together with the non-legal rules make up the British Government.
2. The constitution is flexible and based on continuity of development.
3. In the absence of a written constitution having the status of fundamental, or higher law, the concept of Parliamentary sovereignty, or legislative supremacy represents the cornerstone of the constitution.
4. There is no strict separation of powers between the executive, legislature and judiciary, although a separation of functions exists and the concept retains importance under the constitution.
5. The United Kingdom has a constitutional monarchy.
6. The United Kingdom is a unitary, as opposed to a federal state.
7. The legislature is bicameral in nature.
8. The judiciary is independent.
Sir Ivor Jennings - "The British Constitution has not been made but has grown."
What is a constitution?
A constitution is basically an understanding that there are certain borders and parameters around the organization and creativity around the body of people. It regulates human conduct. It may be an external force or its obligatory nature can be inherent within the system itself.

A constitution is an idea that cannot exist if we are not willing to ascribe to it certain values often described in the form of moral statements that bind politicians and operators of constitutional authority and the powers that come with it.

When we talk of constitutional law, we are concerned with the rules that bind those people that co-operate and give effect to the constitution. This is normally referred to as government - Marshall and Moodie.

Whether or not something is a written constitution, is a matter of construction and identification. If all constitutional rules, i.e. rules that pertain to the governmental power and process are contained in a singular document, then we know this as a Written Constitution.

If it is not contained in an accumulated or unified pattern or documentation, then it is often viewed as Unwritten. The fact of its appearance of a constitution in itself cannot possibly tell us whether that system of government has over it some added- value i.e. the idea that the system of government is regulated by that constitution.

Therefore the difference between an Unwritten and Written constitution, if there is such ... are one of form, but certainly not one of substance.

The important characteristic of a written constitution is that it allows for these rules to be recognized and identified without having to search through the varying and differing historical facts for evidence of a constitution.

An Unwritten Constitution requires a process of ascertainment before one can put together an accumulation of rules that gives the constitution a factually descriptive meaning.

Article 1 Montevideo Convention on Rights and Duties of States 1933 states that the requirements of statehood are:

(a) A defined territory
(b) A permanent population
(c) Government
(d) The capacity to enter into relationships with other nations.

Thomas Paine -"... a constitution is not the act of the government but of the people constituting the government and a government without a constitution is a power without a right ... A constitution is a thing antecedent to government and a government is only the creature of the constitution..."

Commentary:
Although the United Kingdom does not have a written constitution from which the government derives its authority, to say ipso facto (by that very fact) the government does not have a right or authority to govern would be misleading as the authority to govern comes from the United Kingdom's unwritten constitution and the principle of universal adult suffrage. The government of the United Kingdom derives its authority to govern from the people who vote them into power and give them the mandate to govern.

Understanding of the `term' constitution
(a) Narrower sense - that it is written and found in a single document that contains the basic rules of that particular state.
(b) Broader sense - this is termed the unwritten constitution whereby there is no single or set of documents which can be identified as that part of the law called Constitutional Law.

The content of most constitutions include:
1. The powers, functions and limitations of the 3 organs of government i.e. the executive, legislature and judiciary;
2. What rights and liberties citizens possess?
3. The ideology of the state;
4. Stipulate the relationship between international law and the municipal law of the country;
5. Usually the highest law of the land unless that country has an unwritten constitution;
6. Entrenchment against later repeal by a mere act of the legislature which will usually be insufficient to change the constitution unless the special procedure stipulated in the constitution is followed.

The features of written constitutions in general :
1. Clarity and certainty
Usually it must be supplemented by other rules and must constantly be read in the light of changing social, economic and political circumstances. We may say that most constitutions do not themselves contain everything necessary and reference must be made to other materials. In a Connecticut case the question was one of the freedom of assembly and the position of the American Constitution in relation to this.
2. Greater reverence and loyalty
The stability of a constitution whether written or not seems to have more to do with the political situation of the time rather than whether the constitution is written or not. No constitution is proof against major political upheaval. Constitutions survive only within a political framework that broadly commands public acceptance.
3. Superiority of written constitutions
This allows that a constitution where it is written is supreme and seems to suggest that any laws made which are in conflict with the written constitution will not be followed. The courts may refuse to enforce ordinary law that conflict with the constitution.
4. Rigidity of a written constitution
Further there is in a written constitution an amendment procedure whereby unless this is followed the constitution cannot be altered. But this cannot be guaranteed.

Professor A V Dicey - "...`constitutional law', as the expression is used in England, both by the public and by authoritative writers, consists of two elements. The one element, here called the `law of the constitution,' is a body of undoubted law; the other element here called the 'conventions of the constitution,' consists of maxims or practices which, though they regulate the ordinary conduct of the Crown, of Ministers and of other persons under the constitution, are not in strictness laws at all.”

Legal rules
(a) Legislation - i.e. acts of Parliament or statutes and delegated legislation.
(b) Judicial precedent
(c) European Community law - which becomes applicable under the ECA 1972
(d) Customary international law is incorporated into the English Legal System automatically per Lord Denning MR in Trendex Trading Corporation v Central Bank of Nigeria.

Non-legal rules
(a) Customs - such as the royal prerogative and the rules and customs of Parliament
(b) General political and moral values i.e. forms of institutional morality - these include things like democratic values and the ethics of liberalism.
(c) Rules of political parties
(d) Constitutional conventions - these are an important source of the constitution. As rules of political practice they support the existence of the constitution by providing it with a degree of flexibility so that evolution can take place without formal changes to the legal structure of the constitution which should remain static.
(e) authoritative works