Lecture on the Nature of the British Constitution/ Does Britain have

Constitution, why was not the British Constitution written? Should the
UK have a Written Constitution?

Course Code- LAW-2102

Course Title- Constitutional Law of UK, USA and Indian.
LECTURE SHEET NO-03

Muhammad Farhad Hossain (MFH)

Assistant Professor
Department of Law
International Islamic University Chittagong
Email: farhadlex@gmail.com
Phone- +8801818369741

• Nature of the British Constitution/ Does Britain

have Constitution?
1. The constitution of England is unwritten as most of the rules and principles controlling the
distribution and regulating the exercise of governmental power have never been reduced to
writing in a single document.

2. The English constitution is a product of many centuries of political growth

3. It is not the handiwork of any Constituent Assembly but a consequence of a convention. Much
of it has never been formally adopted at all. It can be amended at any time to any extent by a
simple action of parliament.

4. "If constitution means institution and not the paper which describes them, the British
Constitution has not been enacted but has evolved". England has a constitution but mostly of an
unwritten type.

5. It may not however, be presumed that the English Constitution is entirely unwritten. There are
certain charters, petitions and statutes in which some of the principles of the Constitution have
been embodied in writing. Among these, the important ones the Habeas Corpus Act of 1679, the
Act of Settlement of 1701. Fox's Libel Act of 1792, the Reform Acts of 1832, 1867 and 1884, the
Municipal Corporations Act of 1872, the Judicature Acts of 1873-76 etc.

6. Thus, it is clear that England has a constitutional structure though it is one which lacks symmetry.
The Englishmen have shrunk from any effort to reduce their Constitution to a systematic
codified form. They have "left the different parts of their Constitution where the waves of
 history have deposited them" without ever attempting "to bring them together to classify or
complete them, or to make it a consistent or coherent whole"

7. According to Munro, "the British Constitution is a complex amalgam institution, principles and
practices. It is a composite of charters and statutes, of judicial decisions, of common law, of
precedence, usages and traditions. It is not one document but hundreds of them. It is not
derived from one source but from several... It is a child of wisdom and chance."

• Why was not the British Constitution written?

The reasons why the British Constitution was not written are as follows: -

Firstly, the British are essentially conservative and tradition loving people, they believe in evolution
rather than revolution. At one stage of long struggle between the Parliament and the King, the
Parliament deposed and executed King Charles; monarchy was abolished from England and in its place
the Parliament introduced republican system. From 1649 to 1660 England was governed by the
Instrument af Government written by Oliver Cromwell, the leader of the civil war (1642-9) against the
King. However, after 11 years the monarchy was again restored in England by the Parliament. In 1660
when it became clear that chaos could best be avoided by restoring the old traditonal constitution,
Cromwell's constitution was expunged from the of icial records; Charles II was restored as King to rule
England. Thus, Charles II and James III ruled on the basis of inheritance from Charles I as under
traditional norms of constitutionalism. This incident itself sufficiently proves that British are tradition
loving nation and they would not go for a revolution to make a written constitution.

Second, the British Constitution is the result of the ordinary law of the land which have grown out of
judicial decisions for centuries. This unwritten evolutionary growth of the British Constitution is closely
associated with the British politics and there is no cogent reasons from departing this tradition.

Third, though in theory the advantages of a written constitution are not available in the UK, they all are
available and enjoyed by the British people in practice. It is contended that if constitution is writer the
powers of the government would be defined and government cannot turn despotic or autocratic.
However, counter arguments are posed that though the British Constitution is unwritten, conventions of
the constitution which are mandatory in nature prevent the government from becoming dictatorial.
Though the British Parliament is supreme, it cannot do anything undemocratic because of the strong
vigilant public opinion Thus the safeguards provided by a written constitution are available in the UK
though the Constitution is unwritten.

Fourth, according to Harvey and Bather, Britain is a small unitary country. For nearly 900 years, no
invasion or revolution or mass upsurge has interrupted the slow evolution of the political institutions of
this country giving any fertile background of making the constitution as has been done in most of the
commonwealth countries like Bangladesh, Pakistan, India, Ceylon etc. While some special provisions are
made for Wales, Scotland and Northern Treland , the protection of a written constitution has never
been felt to be necessary.
 • Should the UK have a Written Constitution?
The question then arises in this 800th anniversary year should the UK now take steps to codify all its
laws, rules and conventions governing the government of the country into one comprehensive
document, 'a new Magna Carta'? The case for a written UK constitution has been debated at universities
and by politicians of all parties for several decades and has been the subject of a House of Commons
committee inquiry during the 2010-15 Parliament.

If a written constitution for the future is to be prepared, it must be one that engages and involves
everyone, especially young people, and not simply legal experts and parliamentarians. Some of the
mystique and charm of our ancient constitution might be lost in the process, but a written constitution
could bring government and the governed closer together, above all by making the rules by which our
political democracy operates more accessible and intelligible to all.

• Sources of British Constitution:

Sources of British Constitution are follows: -

1. Conventions of the Constitution: The conventions of the Constitution are rules consisting of
conventions, understandings, usages, habits or practices, which, though they may regulate the
conduct of the several members of the Sovereign Power of the ministry and of other officials, are
not, in reality, laws, since they are not enforced by the Courts. These conventions are regarded as
sacred as laws of the Constitution. It has been rightly opined that without the conventions, the
British Constitution is like a skeleton without flesh and blood.9 The most important conventions in
England are as follows:

➢ The King must assent to or cannot veto any bill passed by the two Houses of Parliament.

➢ Ministers must resign office when they have ceased to command the confidence of the
House of Commons.

➢ The House of Lords does not originate any money bill.

➢ The leader of the majority party in the House of Commons must be appointed as the
Prime Minister.
 ➢ The Queen or King must accept the advice of the Cabinet.

➢ No tax can be levied without the sanction of Parliament.

➢ The Parliament must meet at least once a year

These are mere Conventions. They are laws not in the sense that any law Court will recognize them. If
any of them were violated, no Court would take notice of the violation.

2. Charters: The second important source of the British Constitution is discernible from the great
charters and agreements which define and regulates powers of the Crown and the rights of citizen, etc.
Such charters have become historic documents and, therefore, constitute an important part of the
British Constitution. Among these documents the important ones are the following:

➢ Magna Carta (1215): It defined the organization and powers of the Great Council in England and
prohibited the imposition of certain taxes without the consent of the Great Council.

➢ Petition of Rights (1628): It laid down that no person in England can be compelled to pay any
loan, gift or tax without the previous sanction of Parliament.

➢ Bill of Rights (1689): It made the Parliament the supreme law- making body and declared that it
should be called regularly. It also provided a list of individual rights.

➢ Act of Union with Scotland (1707): It contains some provisions that have permanently united
Scotland with England under one common Government.

3. Statutes: The third important source of the English Constitution lies in the statutes (laws) passed by
the Parliament from time to time. Not all A of Parliament are source of the constitution; only those Acts
are recognized as source of the constitution which deal with the power of different organs of the
government. Some particular examples include, the Habeas Corpus Act,1679, Electoral Reforms Act of
1832, 1867, 1884; Life Peerage Act,1908; Indian Independence Act of 1947; House of Lords Act, 1999 etc.

4. Common Law: Another important source of English Constitutional Law is to be found in precedents
and customs generally known as the Common Law. Remember that many vital principles of the English
Constitution such as the freedom of speech, freedom of the person, immunity of juries etc. are all
derived from judicial decisions and not from parliamentary enactments.

5. Judicial Decisions: Judicial decisions constitute another source, which refers to the judgments and
interpretations of the British courts that define the scope and limitations of the different charters,
statutes and common law of England. So great is the importance of judicial decisions that Dicey termed
the British Constitution as a judge-made Constitution Quoting a few illustrations are the decisions in
Bushell's Case (1670) tablishing the independence of juries, and the Howel's case (1678) vindicating the
immunity of judges.
6. Works of Eminent Jurists: Some of the eminent works written by jurists on the subject also form a
part and parcel of the English Constitution. May's Parliament Practice, Dicey's the Law of Constitution,
the Law and Custom of the Constitution by Anson, Blackstone's Commentaries on English Constitution
are some of the noteworthy examples of such work of great eminence.