Research Proposal - British Constitution - Whether it is possible to claim that UK has a written constitution? What is the nature of the British constitution?

Approach used

While conducting the research the main method used in formulating the research design was deductive method. This method was applied while deciding and finalizing the research question. After selecting the topic, inductive method was applied in order to figure out a specific research question. An inductive approach was used while formulating the hypothesis, since it required gathering all the conclusions from the research and creating one general hypothesis.  

Research strategies

The main strategy employed was to collect as many different scholarly opinions, on this issue, as possible. Therefore legal databases, (i.e. Westlaw) were mainly used in order to find different articles addressing the issue of British Constitution. After the data collection process was completed, the sources were thoroughly examined and only the most relevant sources were selected in order to write the literature review.  

Reliability & Validity

One of the strengths of the research carried out is that all the sources used, come from credible sources. Since the sources were taken from legal databases and the library, it is safe to say that they were reliable. Generally the sources used are up to date and they have been published within the last decade.

Research Question

This paper basically tries to find answer(s) to the following question:

Whether it is possible to claim that UK has a written constitution? What is the nature of the British constitution?

Research Purpose

This research was carried out in order to:

• Find out if the United Kingdom has a constitution.
• Understand the nature of the British constitution
• Classify the main sources of the British constitution
• Identify the recent developments in UK’s constitution.
• Figure out the implications of the recent developments in British constitution.

Hypothesis

The British Constitution does in fact exist because there are certain sources which provide a legal framework and define the basic elements of the English legal system. These sources are said to amount to the British Constitution. The British constitution is one which is partly written and entirely uncodified.

The British constitution is currently undergoing the slow and gradual process of codification. The recent developments and changes in the constitutional system due to UK’s incorporation in EU have had a great impact on this process of codification.

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Literature Review

In order to support the hypothesis, a number of selected sources were referred to. There are quite a number of authors who have researched on the need of UK having a written constitution.

One such author is Colin R. Munro, who has researched in the particular field of British constitutional law. In his book “Studies in Constitutional Law” he said that the word “constitution” can be defined in two senses: broad and narrow. As many authors have mentioned according to the narrow sense UK does not have a constitution, however in the broad sense the UK does have a constitution.

There are many reasons as to why the UK does not have a codified/written constitution. The main reason is that the UK has been stable for too long, there have been no major events which could cause an upheaval in UK. Therefore the UK never got the chance to codify its constitution; unlike the Americans who codified their constitution in the 18th century (as well as the French). He also mentions that unlike any other constitution in the world the British constitution has both legal and non legal sources.

In a literature review conducted by Dr. Andrew Blick, he states that the absence of a codified British constitution is significant in many accounts, however not all. Moreover, “the ‘American theory’ that a constitution ‘can be laid down in a single document…is impossible’ while the ‘British theory’ that ‘holds a constitution to be a complex and evolving living organism that cannot be set in stone once and for all…is a better answer to the question of what a constitution is’”. According to Blick, a key theme in the literature assessing the UK constitution is the rapid change in the constitutional law of UK in the past two decades. He states that parts of UK settlement have become increasingly codified mostly from 1990s and onwards. He considers the idea that the substantial constitutional change might lead to a full on codification, sometime in the near future. However the main argument against this idea is provided by Anthony King in “The British Constitution”, where he states that the UK has undergone quite a period of constitutional change from the 1960s. He believes that it is now time to pause and reflect on these changes. 

In Eric Barendt’s book “An Introduction to Constitutional Law” he discusses the works of many famous authors and experts on constitutional law. It was mentioned that Thomas Paine said that “Everything in England has a constitution, except for the country itself”.

Moreover, he criticized the claim made by Paine and Tocqueville that a constitution is necessarily rigid and that the term should only be used in order to refer to a set of higher rules, superior to ordinary laws. He said that this view is too restrictive and therefore not very advantageous to the overall constitutional law. The main problem with the “British constitution is that it is not the most superior law of the country because the Parliament is sovereign and therefore can amend the constitution easily.

He also talks about the nature of the “British constitution”. He believes that apart from the conventions the British constitution is mainly written and uncodified. He explains that with the exception of the conventions it is a “jumble of diffuse statutes and court rulings” and states that it has been called as the “common law constitution”. This concept can be explained through examining parliamentary sovereignty, which is a common law principle. It is through the rulings/decisions of courts that the parliament has unlimited right to enact any legislation it likes. Therefore, it is possible to say that the British constitution is a common law constitution, because the parliament relies on the decisions of the courts rather than any codified constitution/document. 

This issue has also been discussed in Hilaire Barnett’s book “Constitutional and Administrative Law”. Barnett strongly believes that the UK has a constitution. She has tried to list out the main features of the British constitution:

• Largely unwritten
• Flexible in nature
• Supreme
• Mainly unitary, with some elements of a federation
• Weak separation of powers
• Monarchical

The features given by Barnett all seem to apply to the British constitution. However, listing out “supreme” as being a feature of the constitution can be a bit misleading, because it gives an implication that the British constitution is supreme. That is far from true because it is the Parliament which is supreme. Such is the case in Barnett’s classification, as she refers to the legislative authority being supreme rather than the constitution itself.

  Moreover, Barnett states that the British constitution consists of both legal and non-legal sources. The legal sources are: European Legislation; Statutes/Acts of Parliament; Equity; and Common law. The non-legal source is said to be the conventions. The constitution is mostly made up of conventions. Conventions form an essential part of the constitution and play a significant rule in the way in which it operates.

According to Barnett, historically the constitution has evolved gradually and pragmatically. However, in the past 3-4 decades the British constitution has undergone a lot of major changes. The latest and probably the greatest one being UK’s membership into the European Union (1973). This “involved not only entering into an agreement which affected the economic life of the country, but also joining a unique legal order”. Moreover, the recent treaties of 1992 and 1997 gave rise to new implications in the field of politics, economics, foreign policies and many other matters. Another major development is the Human Rights Act 1998 which incorporates the European Convention on Human Rights into domestic law. This is said to be a significant development because it is for the first time ever that the rights of British citizens have been codified.

In an article published in the Independent by Nigel Morris, the issue of UK not having a codified constitution has been examined. According to him, the main reason as to why the UK does not have a codified constitution is because the country has been “stable for too long”. This is in contrast with most of the other European countries which went through some kind of revolution or developed a codified constitution as a consequence of war. Morris says that developing a written constitution would be a formidable task; as it would require the compilation of all the statutes and principles of cases which have evolved throughout the centuries. His main argument in favour of developing a written constitution is that a codified constitution would help the citizens to defend themselves against the state. However, this view can be challenged because the Human Rights Act 1998 already provides this right to the citizens. Moreover, he states that it is almost impossible to defend “Britain’s arcane hotchpotch of freedoms and rights” in the 21st century. While it is possible to say that there is some truth behind these words, I believe that the rights can be defended through the Human Rights Act 1998. 

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Resources

Different types of sources have been used in order to conduct this research, including primary and secondary material.

Primary Sources:

Acts of Parliaments

Magna Carta – 1215; Petition of Rights – 1628; Bill of Rights – 1689; Act of Settlement – 1700; Treaty of Union with Scotland – 1706; The European Communities Act – 1972; The Human Rights Convention – 1998.

European Legislation

European Communities Act – 1972; Maastricht Treaty – 1992; Treaty of Lisbon – 2007;  

Secondary Sources:

Electronic Sources:

Articles from Westlaw database; Google Scholar; SSRN

General research from Google

Printed Sources:

Colin R. Munro – Studies in Constitutional Law (2005); Eric Barendt – An Introduction to Constitutional Law (1998); Hilaire Barnett, Constitutional and Administrative Law (2002)

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Time Frame

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Bibliography

Colin R. Munro, Studies in Constitutional Law (2nd edn, OUP 2005)

Dr. Andrew Blick, “Codifying – or not codifying – the UK constitution” (Parliament.uk, February 2011) <http://www.parliament.uk/pagefiles/56954/CPCS%20Literature%20Review%20(4).pdf> accessed 28 November 2011  

Eric Barendt, An Introduction to Constitutional Law (OUP 1998)

Graham Gee and Grégoire Webber, “Britain’s Political Constitution: A Normative Turn” (SSRN 15 February 2009) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1343578> accessed 1 December 2011

Hilaire Barnett, Constitutional and Administrative Law (4th edn, Cavendish Publishing 2002)

Nigel Morris, “The Big Question: Why doesn’t UK have a Constitution, and does it matter?” (Independent, 14 February 2008) <http://www.independent.co.uk/news/uk/politics/the-big-question-why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html> accessed 28 November 2011

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