SOURCES OF THE BRITISH CONSTITUTION

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Every constitution in the world has some sources from which it originates. Although, the British constitution is not a codified constitution, but still, has its roots in some vital sources. The sources of The Constitution of the UK are diverse and scattered all over the history of the UK. According to Lord Bryce Britain, the Constitution is:

“A mass of precedents carried in men’s minds or recorded in writing, dicta of lawyers and statesmen, customs, usages, understandings and beliefs, number of statues mixed up with customs and all covered with a parasitic growth of legal decisions and political habits.” [1] The sources of the British Constitution can be divided into two major types that can further be divided into major sources. Initial two sources are:

i). Laws (Acts of Parliament, Court decisions, and common law)

ii). Conventions (social customs). [2]

It is evident that the sources of the UK Constitution are not present in a systematic form, but they can be summarized as:

1. The Historical Constitutional Documents, and Landmarks.
2. Statutes.
3. Judicial Decisions.
4. Common Law. (Case law/ Precedents)
5. Constitutional Conventions and Customs.
6. Others.

1. The Historical Constitutional Documents and Landmarks

The historical constitutional landmarks include The Magna Carta of 1215, The Petition of Rights (1628), The Great Reform Act of 1832, and The Parliament Act of 1911. [3]

The Magna Carta was issued in 1215. It is deemed to be the most significant landmark in British history, as it became the foundation for the rights of English citizens. It decreased the power of the King and increased the power of Parliament. King John was compelled to sign it. This document ensured certain rights: Freedom of the church from royal interference, termination of non-parliamentary taxes, the right to due process, etc. The barons of England proposed this charter after their rebellion against the brutal and corrupt King John. It limited the absolute power of the King and initiated the sovereignty of parliament.[4]

 The Petition of Rights is also a very influential document of the history of England. It introduced certain liberties and forbade the King from contravening those specific rights. It included the restriction of practicing martial law, prohibition on groundless imprisonment, ban of forced lodging of soldiers, etc. This petition was passed by both houses during the regime of King Charles I.[5]

Similarly, other petitions and Acts of Parliament [The Act of Habeas Corpus (1679), The Act of Settlement (1701), Indian Independence Act of 1947, etc.] also had a great effect in the evolution of parliamentary sovereignty.

2. Statutes

According to Blackstone:

“Parliament has sovereign and uncontrollable authority in the making, confirming, enlarging and expounding of laws…………”. [6]  Parliament has no legal limits on doing anything by legislation. [7] Statutes are acts of parliament, or of any other subordinate body to which parliament has delegated the power of legislation. They are debated in both houses and passed after receiving the royal assent. There are many important statues in England, that have a significant role in the Britain constitution. For instance, the laws which extended the right to vote. This statute played a vital role in the expansion of political democracy. Now it has gained so much importance that any offense against it would be considered an offense against the fundamental constitutional principles, and thus such an attempt is contemplated to be unimaginable.[8]

The Statute of Westminster (1931), The Human Rights Act of 1999, The Abdication Act of 1936, the Ministers of the Crown Act of 1937, The Local Government Acts of 1888, etc. are also examples of statutes acting as the source of Britain’s Constitution.[9]

Besides the above-mentioned important statutes, some other ordinary statutes also influenced the development of the British Constitution. They may not be labeled as prominent ones, but they have an essential role. Different parliamentary enactments are included in this class of statutes, like the Reforms Act of 1832, 1867, 1884, 1918, 1928, and 1948.[10] Statues of ancient times surely resemble those of today but the method of practice and composition differ. The courts used to strictly follow the interpretations of statutes but in modern times they can ignore unpopular statutes. [11]

3. Judicial Decisions

Judicial decisions are another source of Britain’s Constitution. The interpretations which the law courts give for different cases form a source. Before the Norman invasion, there was no other judicial system except the Royal Courts of Justice. All the disputes and maintenance of peace were handled by the Crown or his council.  But after Henry II’s reign, there started a judicial court system that snatched the ultimate authority from the King. [12]

The judgments of judges in courts for different cases or the broad interpretations of statute laws and customs have become a very important part of British law. Judges have made the principles of the Constitution through modification and broadening the provisions of charters and statutes. [13]

The judicial decisions that have become part of the English constitution can be referred to Bainbridge vs. Postmaster General (1906), Attorney General vs. De Keyser’s Royal Hotel Co. (1920), Local Government Board v. Arlidge (1915), etc.

• Wilkes v. Wood case declared that granting warrants for searching and capturing an unnamed author’s paper was illegal.
• Howell’s case decision guaranteed the immunity of judges.
• Similarly, the Bushell Case established the independence of juries.
• The Somerset Case declared the absence of slavery in England.

Professor Dicey states that: “far from being the result of legislation in the ordinary sense of the term, is the fruit of contests carried on in courts on behalf of the rights of the individuals.” [14]

4. Common Law

Common law is also known as case law or precedent. It originated in the twelfth century. The Anglo-Saxon Kings introduced the judicial system in place of the King’s justice. The Ultimate power of the King for justice was transferred to a group of specific persons who would exercise it being a learned judge.[15] Dr. Ogg defined it as, “the vast body of legal precept and usage, which through the centuries has acquired binding and almost immutable character.” Common law is a set of rules made by the judges, which are neither been legislated nor enacted by the King or the Parliament. The common law is generated from customs and usages. The judges acknowledge some customs of the society and apply them in some decisions of cases. These decisions become precedents for future cases.[16]

Examples of rights gained through common law are Freedom of speech and press, civil liberty rights, right of jury trial, Supremacy of Parliament, etc. The common law is continuously in the course of growth and evolution by judicial decisions.[17] Common Law is indeed a very crucial part of English society and surely has a great impact on the constitution of the country. As being originated from unidentified long-time usage and custom, it cannot be easily opposed. People would most probably never allow its violation and ignorance. So it has to be an organ of the Constitution.

5. Constitutional Conventions

The most important source of the British Constitution is its conventions. Conventions are the customs practiced by the people for a very long time. These are not written and also not enforced as law in the courts but still, their importance in the U.K. is sometimes more than the laws, statutes, and judicial decisions.

Conventions as defined by Ogg: “the customs, habits, usages or practices which by their sole authority regulate a large portion of the actual day-to-day relations and activities of the most important of public authorities.” Its extended binding power is due to the will of people to follow it and the force of public opinion.[18] Conventions are so deeply rooted in the society of England that if they are excluded from it, the structuring and functioning of the state cannot be regulated smoothly. Obedience to conventions is said to be a political obligation. Conventions are not formulated but they are recognized through usage. It is said that “Conventions provide the flesh which clothes the dry bones of law.”[19]

Examples of conventions in England:

• If the Queen refuses to grant assent to an act of the parliament, she has the absolute right to do so. But she must not refuse to grant her assent to a bill that has already been passed by the parliament because it is a convention. If she does so, it would result in a constitutional crisis.
• Likewise, there is a convention that the Prime Minister must be a part of the House of Commons.
• There is also another convention that if the majority of parliament shows no confidence in the Prime Minister in the cabinet, he must resign. Along with these, many other conventions in the United Kingdom are an integral part of the Constitution.[20]

A breached convention can be turned into a statute to prevent further breaches as with the passing of The Parliament Act 1911 following a breach of the Constitutional Convention that stated that the Lords should always bow down to the will of the commons. It was established in Madzimbamuto vs. Lardner-Burke that the U.K. legislation can overturn a commonwealth convention arising out of an international agreement. Due to the Parliamentary Act 1911, the delay (more than a month) of money bills by the lords was made impossible. Hence a violated constitutional convention was restored by the written law.[21]

Thus, conventions are considered the most focused and essential portion of the Britain Constitution.

6. Others

Some other sources influence the British constitution. These are the following:

• The community laws such as the treaties, regulations, and directives, etc. The Constitution of the UK includes the signed international treaties. “The Treaty of Union 1706” is a very important treaty with the aspect that it has brought to an end the historical disputes between England and Scotland.[22]
• European Council (EU) has become the most significant source of the UK constitution in recent years. Membership of the EU has led to great constitutional changes in England.[23]
• The textbooks on Constitutional law are another source of English law. These books describe what the constitution of England is. They help to figure out the nature, features, contents, and principles of the Constitution. In this category are included: Anson’s Law and the Customs of the Constitution, May’s Parliamentary practice, Dicey’s Law of the Constitution, and Bagehot’s English Constitution.[24]

Conclusion

The UK constitution is the oldest of constitutions, yet it is in the stage of evolution. It keeps growing and developing with time due to its non-rigidity. Hence, it is constantly exposed to a phase of change. Professor Munro writes:

“The British constitution is not to be found in a definite and precise document. It is a complex amalgam of institutions. It is a complex compendium of charters, statutes, decisions, precedents, usages, and traditions. Some of them are living only in the understanding of the people.” [25]

 

References

[1] S.L. Kaeley, M.A., World Constitutions, pg#17, Bhat Kiran Publications, NewDelhi,1993.

[2] John Prophet, The Structure of Government, pg#3, Longmans, 1724.

[3] Mazhar-ul-Haq, Modern Constitutions, pg#4, Bookland, Urdu Bazar, Lahore, Pakistan.

[4] http://www.middle-ages.org.uk/magna-carta.htm.

[5] http://en.wikipedia.org/wiki/Petition_of_Right.

[6] Vidya Dhar Mahajan, Select Modern Governments, pg#66, S. Chand &Co., Delhi, 1968.

[7] Richard Tames, People and Politics, pg#239, Charles Knight & Company Limited, London & Tonbridge.

[8] Saeed Osman Malik & Hameed A.K. Rai, Select Modern Governments, pg#57, Aziz Publishers, Urdu Bazar, Lahore., Pakistan.

[9] Vidya Dhar Mahajan, Select Modern Governments, pg#3, S. Chand &Co., Delhi, 1968.

[10] S.L. Kaeley, M.A., World Constitutions, pg#18, Bhat Kiran Publications, NewDelhi,1993.

[11] Gary Slapper & David Kelly, The English Legal System, pg#263, Cavendish Publishing Limited, London.

[12] J.H. Baker, An Introduction to English Legal History, pg#12&13, London Butterworths, 1979.

[13] Saeed Osman Malik & Hameed A.K. Rai, Select Modern Governments, pg#58, Aziz Publishers, Urdu Bazar, Lahore., Pakistan.

[14] Vidya Dhar Mahajan, Select Modern Governments, pg#4, S. Chand &Co., Delhi, 1968.

[15] J.H. Baker, An Introduction to English Legal History, pg#8, London Butterworths, 1979.

[16] S.L. Kaeley, M.A., World Constitutions, pg#18-19, Bhat Kiran Publications, NewDelhi,1993.

[17] Anup Chand Kapur, Select Constitutions, pg#4-6, S. Chand & Company Ltd., New Delhi, 16^th Edition, 2006.

[18] Mazhar-ul-Haq, Modern Constitutions, pg#9-10, Bookland, Urdu Bazar, Lahore, Pakistan.

[19] Anup Chand Kapur, Select Constitutions, pg#10, S. Chand & Company Ltd., New Delhi, 16^th Edition, 2006.

[20] S.L. Kaeley, M.A., World Constitutions, pg#18, Bhat Kiran Publications, NewDelhi,1993.

[21] Saeed Osman Malik & Hameed A.K. Rai, Select Modern Governments, pg#60, Aziz Publishers, Urdu Bazar, Lahore., Pakistan.

[22] http://www.law-essays-uk.com/resources/sample-essays/constitutional-law/written-constitution-and-unwritten-constitution.php.

[23] http://www.cssforum.com.pk/css-optional-subjects/group-f/constitutional-law/9600-sources-british-constitution.html

[24] Vidya Dhar Mahajan, Select Modern Governments, pg#4, S. Chand &Co., Delhi, 1968.

[25] http://llbpart1notes.blogspot.com/2012/02/sources-of-british-constitution.html