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Does Britain Have A Constitution

A constitution is traditionally a single written or codified document a kin to that of the US Constitution, that works to underpin the political process of a nation. As the British Constitution is un-codified, one would assume its fantasy. Yet, the British Constitution can be found in a many number of places, the Bill of Rights 1689, Court Judgements, Parliamentary Conventions and Royal Prerogatives. Peter Hennessy (Peter Hennessy, 1995, The Hidden Wiring: Unearthing the British Constitution, London, Indigo) quotes Queen Elizabeth II “The British Constitution has always been Puzzling and always will be”.

The Doctrine of Parliamentary Sovereignty plays a major role in the British Constitution; this Constitutional principle holds Parliament as the ultimate authority in Britain, using this doctrine one can draw a parallel to the US Constitution’s ‘Separation of Powers’ (Arts. I, II and III) this highlights Britain’s Constitution, and although not written/codified it still seeks to lay out the powers of Parliament, of these powers outlined in the Constitution, Lord Hailsham advocated a written Constitution “…one which limits the powers of Parliament and provides a means of enforcing those limitations” (Q. Hogg-Lord Hailsham,21st October 1976, The Dimbleby Lecture, ‘Elective Dictatorship’, The Listener, London, BBC) believing the current Constitution was “wearing out”. From Hailsham’s words we can infer that many believe that the Constitution of Britain cannot be called a Constitution unless written.

However the institutions of the Constitution make for a differing argument, Common Law includes judicial decisions and royal prerogatives e.g. to dissolve Parliament, and outlines Parliaments actions. Conventions, act as the rules of Parliament, Harrison and Boyd draw our attention to the “Salisbury Convention” (Harrison and Boyd, 2006, The Changing Constitution, Edinburgh, Edinburgh University Press) another major convention is that of Royal Assent, in order for Bills to pass through Parliament, the Monarch must approve them, Conventions act as the checks and balances of Parliament. Not written in a single document the Constitution is still working to outline to process of Parliament. The Constitution is also shaped by Works of Authority, Bill Jones (Jones et al, 2007, Politics UK, Seventh Edition, Essex, Pearson) talks of A.V.Dicey’s ‘An introduction to the Study of the Law of the Constitution’ and how ‘of the time’ it was, “resulting in interpretation on uncertain aspects of the Constitution”. Most recently Tam Dalyell’s ‘West Lothian Question’ has changed the British Constitution, opening it up to Devolution. Finally, Statute Law, made up of Acts of Parliament; one can attribute Statute Law to the Amendments of the US Constitution, as Statute Law often seeks to change the way in which Parliament works or the way in which Britain is governed, e.g. The Parliament Act of 1911 and The Scotland Act 1998. Jones concludes that “Statute Law is the pre-eminent of the four sources…because of the doctrine of Parliamentary Sovereignty” (ibid). Thus, Britain may not have a codified Constitution, in a single document, but its institutions work as one to produce a similar outcome to that of a codified Constitution, to outline the workings of Parliament.

Many believe the UK lacks a Constitution, especially after the apparent shift towards ‘Federalism’ without a codified Constitution. Britain’s Constitutional situation is more common to a Unitary State, not a Federal State where codified Constitutions take hold. However, since 1973 Britain along with its parliamentary Sovereignty resembles a Federal nation. The joining of the EEC in 1973, saw the slip of Parliamentary Sovereignty, as EEC Law/Policy soon over ran UK Law/Policy. This was most evident in the Factortame Case (1991), Thatcher tried to halt Spanish Fishermen operating in British waters; her Parliamentary action soon came under fire from the EU, whom ruled National law to be put aside by Community/EU law, “Costa vs. ENEL” (Reestman, Jan Herman, 01/2005, Primacy of Union Law, European Constitutional Law, Issue 1, pp104-05) . In essence Britain’s Parliamentary Sovereignty had been displaced by the EU, and its apparent Federal Nature fuelled the ‘no-Constitution’ argument. Even more so with New Labour’s, signing of the ECHR Devolution Policy, which saw sections of the UK awarded individual Parliaments (e.g. Scotland Act 1998) with different ‘enumerated powers’, and British Courts accountable to the ECHR, hence the argument Britain has no Constitution, as its un-codified nature allowed other states to run roughshod over its Sovereignty.

To conclude, there have been many actions such as Devolution and the EU’s Sovereignty that frame Britain’s un-codified Constitution. However, even the most codified of Constitutions i.e. USA’s, have been attacked from external bodies such as the UN, i.e. Iraq War. In terms of the UK’s Constitution, it may not be written/codified, but its institutions still outline the process of government, thus carrying out the work of a Constitution. As Birch said “There is no lack of provisions regarding the institutions of government…What is lacking is an authoritative statement of relations between these institutions.”(A. Birch, The British system of government, 1993, Ninth Edition, London, Harper Collins Academic)


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