Chapter 1 Answers to quick test questions

Jennings defines a constitution in the following terms:

‘If a constitution means a written document, then obviously Great Britain has no constitution. In countries where such a document exists, the word has that meaning. But the document itself merely sets out the rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such rules. The phrase ‘British constitution’ is used to describe those rules’.¹

The British system, therefore, is distinguished for its uncodified nature (i.e. a system that exists without such a document), with the various sources (both legal and non-legal) setting out the rules ‘determining the creation and operation of governmental institutions’.

Constitutional conventions are defined by Dicey as ‘understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power ... are not in reality laws at all since they are not enforced by the courts’.² They are therefore non-legal rules that determine the way in which various aspects of the UK constitutional system operate, on the basis of historical precedent.

As section 1.3.2 of the chapter explains, constitutionalism refers to governments functioning according to accepted constitutional principles. Legal constitutionalism simply refers to the laws that governments must follow in functioning according to accepted constitutional principle, being legally accountable to the courts in this regard. Political constitutionalism, by contrast, refers to the political mechanisms that ensure governments operate appropriately and democratically.

The Bill of Rights 1688 marks the formal establishment of parliamentary sovereignty. Following the turbulent relationship between the monarch and Parliament that prevailed in the 17^th century, the Glorious Revolution was marked by William and Mary of Orange being invited to take the throne on the condition that they accept the terms of what became the Bill of Rights, which set out that Parliament would be sovereign over the monarch.

The three notable changes introduced by the Constitutional Reform Act 2005 were: 1) abolition of the Appellate Committee of the House of Lords and creation of the UK Supreme Court in its place; 2) alteration of the Lord Chancellor’s position, limiting his or her power in the legislature and judiciary; and 3) creation of the Judicial Appointments Commission. The main aim of these reforms was to enhance the separation of powers in the UK Constitution.

Early on, as demonstrated by sources such as Magna Carta 1215 and the Bill of Rights 1688, questions regarding the allocation of sovereign power centred on the relationship between the monarch and Parliament. Over the last 100 years or so, though, this has shifted to consideration of the relationship between domestic law and sources of international law, exemplified by the European Communities Act 1972.

Ridley’s view was founded on the identification of certain essential characteristics that constitutions must possess, namely that it:

(1) ... establishes, or constitutes, the system of government. Thus, it is prior to the system of government, not part of it, and its rules can not be derived from that system.

(2) It therefore involves an authority outside and above the order it establishes.

(3) It is a form of law superior to other laws—because (i) it originates in an authority higher than the legislature which makes ordinary law and (ii) the authority of the legislature derives from it and is thus bound by it.

(4) It is entrenched—(i) because its purpose is generally to limit the powers of government, but also (ii) again because of its origins in a higher authority outside the system. It can thus only be changed by special procedures, generally (and certainly for major change) requiring reference back to the constituent power.³

Ridley argued, however, that the UK Constitution did not possess any of these characteristics and, as a result, could not be said to have a constitution.

Arguments supporting the case for a codified constitutional document tend to centre around a stated desire to clarify the mass of constitutional law that applies in the UK and to make the ‘UK Constitution’ more prominent and obvious. In addition, and keeping in mind the historic nature of much of the constitution, it is often suggested that codification would help modernize the constitution.