Britain, Its Unwritten Constitution and The Courts

Introduction

1. Most countries have a written constitution, usually contained in a a single document.

The United States has its constitution written in 1776. Here in Germany, you have the

Federal Constitution or Grundgesetz.

2. Constitutions perform a number of functions. First, they establish the machinery of

government. They establish the organs of the state – the legislature, the executive

government and the courts. Secondly, they allocate power – allocating powers to the

federal level and to the state or regional level. Thirdly, and frequently, they guarantee

the protection of individual human rights. Furthermore, that written constitution will

usually be the fundamental or basic law of the state. All legal authority comes from that

constitution. The constitution is, therefore, the supreme law within the state.

3. The United Kingdom does not have a written constitution in that sense. There is no

single written constitutional document setting up the legislature, or the executive

government or acting as the source of legislative, executive or judicial authority in the

state. There is no written constitution in the United Kingdom to act as a fundamental

law which is supreme over all other sources of law.

4. Although we do not have a constitution of that kind, we do have constitutional

arrangements governing how the institutions in our country are meant to operate. Those

arrangements are to be found in a variety of places. These include as ordinary legislation

– that is Acts of Parliament made the United Kingdom Parliament in Westminster. They

also include the royal prerogative – that is the powers formally recognised as belonging

to the King. They also include the common law, that is rules developed by the courts

over centuries. Importantly, we have developed conventions – that is practices or

understandings - governing the way in which the more important powers are exercised.
5. The constitutional arrangements in the United Kingdom are therefore not always easy

to identify or to explain. They are not fixed but change over time

6. In considering the constitutional arrangements in the United Kingdom, it is always

necessary to remember the following things. First the constitutional arrangements in

the United Kingdom have emerged from our history. Historically, sovereignty, or

power, was concentrated in the King. The current constitutional structure of power

owes a great deal to events in the 17th Century when there was a struggle for power

between the King and Parliament. Over time, the powers of the King were reduced and

transferred to Parliament, the executive government and the judges.

7. Secondly, the constitutional arrangements have been adapted and modified to reflect

prevailing political and social conditions in the country. To that end, the United

Kingdom is a parliamentary democracy based on the rule of law. In form, we are a

constitutional monarchy. We have a King. Certain powers are still vested in the King.

But the actual practical arrangements ensure that those powers are exercised by the

elected bodies within the state, notably, the legislature and the govvernment.

8. Furthermore, the operation of the arrangements are intended to reflect the fact that the

United Kingdom is a society based on the rule of law and one which recognises the

importance of the independence of the judiciary and the protection of fundamental

human rights.

9. I hope to explain a little about how we manage to maintain a modern democratic system

of government within forms of government created in a different age and without the

assistance of a written constitutional document to guide us.

10. I would give the following warnings. First, what I am describing is very much a

lawyer’s view of the constitution. I am a judge and a lawyer not a politician. The reality

of government may differ from the way that lawyers perceive it. Secondly, there is not
 always agreement on what the constitutional arrangements are or how they are meant

to operate. That is particularly the case with constitutional conventions – where

lawyers, politicians and the press may well disagree on what the conventions are.

11. Against that background, what I propose to do in this lecture is the following.

12. First, I will consider the sources of legal power in the United Kingdom.

13. Secondly, I will consider how power is controlled and how constitutional conventions

have also emerged to control the exercise of power.

14. Thirdly, I will look at the role of the courts and how fundamental human rights are

protected in the United Kingdom.

Sources of Power

15. There are two main sources of power in the state. First, there is ordinary legislation –

known as Acts of Parliament. The United Kingdom Parliament as you may known is

made of two parts. There is the lower elected chamber of the House of Commons –

equivalent to the Bundestag. There is the upper chamber, the House of Lords. That is

largely comprised of people who are appointed for life.

16. Legislation must be passed by each part of the Parliament – that is, by the House of

Commons and the House of Lords. And the King must assent – that is, the King must

agree to the measure becoming legislation. Indeed all Acts of Parliament in the United

Kingdom begin with the words “Be it enacted by the King (or previously the Queen)

by and with the advice and consent of the Lords and Commons”.

17. In our constitution, the courts have held that the basic constitutional principle is the

sovereignty, or supremacy, of Parliament. In our system, Parliament can pass any

legislation it wishes on any topic. Parliament can make legislation changing our

constitutional arrangements in any way that Parliament thinks fit. Parliament can also

make new legislation at any time. That legislation can change the earlier legislation and
 make new constitutional arrangements. Legislation made by Act of Parliament is now

the only way in which legislation can be made.

18. Acts of Parliament have been made to regulate large parts of our constitutional

arrangements. The rules governing elections are contained in an Act of Parliament. The

system of courts, and the jurisdiction of courts, are dealt with by Act of Parliament.

19. Most recently, in 1998 the United Kingdom Parliament made legislation establishing

separate legislatures or Parliaments for the different parts of the United Kingdom –

Scotland, Wales and Northern Ireland. For centuries, the United Kingdom had been a

very centralised state. Power was exercised by the Parliament in London. The United

Kingdom was not a federal state – such as Germany, or the United States, with a central

or federal government and the lander or states.

20. The different Acts of Parliament set out the powers that may be exercised by the

Scottish or Welsh Parliament and which powers can only be exercised by the United

Kingdom Parliament in London. The Scottish Parliament for example has responsibility

for making legislation in areas such as criminal law and the legal system in Scotland

which are different from those in the rest of the United Kingdom. The Scottish

Parliament controls education in Scotland, the health service, the police, planning and

the environment. The Welsh Assembly, now known as a parliament, had limited power

in 1998 but over time Acts of Parliament have allocated more powers to the Welsh

parliament..

21. There are three points to note. First, the United Kingdom Parliament remains sovereign

or supreme. The UK Parliament can make new legislation modifying those

arrangements and take powers away from the Scottish or Welsh Parliaments or confer

new powers on them.

even in those areas where power has been allocated to the Scottish or Welsh

Parliaments. So, in theory, the United Kingdom Parliament could make laws about

education in Scotland.

23. Thirdly, however, there is convention that “the Parliament of the United Kingdom will

not normally make legislation in areas allocated to Scotland without the consent of the

Scottish Parliament. The same convention applies to Wales.

24. That deals with ordinary legislation. I next next to the powers which in theory are

exercisable by the King. These powers are known as the Royal Prerogative. They include

important powers governing the appointment of the Prime Minister and the calling of

elections. In addition, certain other powers in theory belong to the King – for example,

matters involving foreign affairs and defence, which includes diplomatic relations, the

making of treaties and the use of armed force abroad.

25. I should make it clear that there are limits, or constraints on the exercise of these prerogative

powers. In relation to most of the prerogative powers – for example making treaties or

sending troops to other countries – the power is exercised by the executive government or

is exercised by the King on the advice of the government. In other instances – such as the

appointment of a Prime Minister – the King acts in accordance with what are called

constitutional conventions, that is long established customs or practices setting out how the

King should act. I will say a bit more about constitutional conventions shortly.

26. Thirdly an important part of the constitutional arrangements is the common law. The

common law is the description of the rules made by judges. These rules are rules of law

and, where the judges have laid down rules about how power must be exercised, the

government and indeed everyone must comply with those rules.

27. I want to look next at controls of power. In particular, I want to look at the controls on the

exercise of what is called the royal prerogative, that is the powers of the King.

28. First, the judges have the responsibility to determine whether or not a prerogative power

exists. Historically, this involved the judges deciding whether the King had power to do

particular acts. The classic case arose in the 1600s involved King Charles I – not I

emphasise the King Charles who recently visited Germany. King Charles I argued that he

could change the law by issuing a royal proclamation. That is, the King said he could simply

issue a decree or proclamation altering the law. The judges decided that the King did not

have the power to change the law. The law could only be changed by Act of Parliament

not by the King alone.

29. Now, as I have said, the powers of the King are not normally exercised by him but by

government ministers. When cases come to the courts now about the powers of the King

they are in reality a dispute as to whether the government or Parliament is responsible for

a particular matter.

30. That rose when the United Kingdom decided to leave the European Union. There was a

referendum – and a majority of citizens decided that they wished to leave the European

Union. The result of the referendum was not binding in law. The question was – who was

responsible in law for deciding whether or not to leave the European Union in the light of

the vote in the referendum? The government said that that issue was a matter for the royal

prerogative – it involved giving notice under the Treaty on European Union that the United

Kingdom intended to leave the European. That, the government said, was a matter of

foreign affairs – actions taken under a treaty – and was a matter of the royal prerogative. A

number of citizens disagreed and said the government did not have the power to decide that
 Britain should leave the European Union – that could only be achieved by an Act of

Parliament.

31. That case went to the Supreme Court of the United Kingdom. It was heard by 11 judges.

By a majority of 8-3, the Supreme Court decided that the government could not use the

prerogative powers to leave the European Union. As a result of the United Kingdom’s

membership of the European Union, the law made by the European Union was an important

part of the law of the United Kingdom. It had long been recognised that the King could not

alter the law of the land – the Supreme Court relied on that case from the 1600s where the

court held that the King could not change the law. Consequently, any decision on leaving

the European Union had to be done by Act of Parliament not by the government acting

alone.

32. So that is one restraint on the exercise of power. The courts and the decisions they make –

that is the common law – determines what powers the government has.

33. Secondly, Parliament can always adopt an Act of Parliament to change the prerogative

powers. They have done so. As the basic principle in our constitution is the supremacy of

Parliament, Parliament can adopt acts to remove the royal prerogative.

34. Thirdly, there are constitutional conventions governing the exercise of power.

Constitutional conventions are practices, or understandings, about how power should be

exercised. They are not rules of law. They cannot be enforced in the courts.

35. The next question then is – how are these constitutional conventions identified.

Traditionally, academic writers have identified a three part test. First, you look at the

precedents – how have people acted in the past? Secondly, did people act in that way

because they believed that they should follow the previous practice. Thirdly is there a

reason for the rule. More recently, in 2010, the Civil Service published a document called
 the Cabinet Manual which it described as a guide to the laws, conventions and rules on the

operation of government.

36. I will give you an example of a few of the constitutional conventions.

37. First, as you may recall, I said that Acts of Parliament had to be passed by the House of

Commons and the House of Lords – and the King had to approve, or give assent to the Bill

before it became an Act of Parliament. It is now well established that the King must give

his agreement once a Bill has been passed by the House of Commons and the House of

Lords. He cannot refuse consent. To refuse consent would break a constitutional convention

– and in all probability create a constitutional crisis. The last time a King or Queen refused

to give consent a Bill was in 1708. I do not expect it will ever happen again.

38. Second, there are constitutional conventions governing the appointment of the Prime

Minister.. The power to appoint a Prime Minister is a power that the King must exercise

personally. However, he must act in accordance with constitutional convention. The

convention is that the King must appoint the person who is likely to be able to obtain the

support of a majority of the elected members of the House of Commons.

39. If an election is held, and the opposing party wins a majority of seats in the House of

Commons, the existing Prime Minister is expected to go to the King and resign

immediately. The King then appoints the leader of the party that has won the majority of

seats to be Prime Minister.

40. Sometimes – on three occasions in the last 50 years – no party has won a majority of seats

in the House of Commons. The convention is still that the King must appoint the person

most likely to be able to obtain the support of a majority of members of the House of

Commons. In practice, in those cases, the current Prime Minister remains in post and the

political parties seek to agree the way forward – either agreeing to form a coalition
 government, or agreeing that the party in government will be supported on important issues

by another party. The King is not involved in those discussions. Once it is clear who has

majority support, the existing Prime Minister will then resign and the King will ask the

person most likely to have majority support to appoint a government.

41. Another significant power is the power to call a general election. Parliaments in the United

Kingdom cannot last more than 5 years – that is fixed by Act of Parliament. But Parliaments

can be brought to an end, and a general election held, before the end of the 5 year period.

Indeed, in recent years, it has been unusual for a Parliament to last for the whole five years.

On one occasion, Parliament lasted for only 6 months and there was an election. On other

occasions it has lasted for about four years.

42. The King has the power to bring Parliament to an end. However, the constitutional

convention is that the King will only exercise that power on the advice of the Prime

Minister. It is said that this gives too great an advantage to the Prime Minister – he or she

can call an election at a time favourable to his party. But the general consensus is that the

King must exercise the power to bring Parliament to an end if the Prime Minister asks him

to and cannot refuse.

43. I should say that in 2010, Parliament decided to change this prerogative power. Parliament

enacted the Fixed-term Parliaments Act 2010. That provided that parliaments must last 5

years and permitted an earlier election only in certain circumstances. The Act took away

the power of the King, acting on the advice of the Prime Minister, to call an election.

However, the operation of that Act was not considered to be satisfactory. In 2022,

Parliament passed a new Act. That repealed the Fixed-term Parliament Act and brought

back the prerogative powers to end Parliament and call an election.

The Protection of Individual Rights

44. I turn finally to the protection of individual rights. Here the judges play a significant role.
45. The judges have developed a set of rules, which are part of the common law, which ensure

that the government acts in accordance with their legal powers and the rights of individuals

are respected.

46. The potential tension comes with Acts of Parliament. As I have said, the basis principle in

our constitution is that Parliament is supreme. It can make any law it wishes. The role of

the judges is to interpret and apply an Act of Parliament. They cannot strike down Acts of

Parliament. The courts cannot ignore or set aside Acts of Parliament. The problem comes,

therefore, when an Act of Parliament appears to conflict with an individual’s human rights.

47. In our constitution, we have solved that problem in this way. In 1998, Parliament adopted

the Human Rights Act. That Act does the following things.

48. First it provides in effect that individuals are to enjoy the rights set out in the European

Convention on Human Rights.

49. Second, the Act provides that individuals can enforce those rights in court proceedings in

the United Kingdom. The courts in the United Kingdom are required to have regard to the

decision of the European Court of Human Rights in Strasbourg when dealing with such

cases.

50. Thirdly, it is unlawful for the government to act in a way which breaches a person’s

Convention rights.

51. Fourthly, if an Act of Parliament includes provisions which might breach a person’s

Convention rights, the courts in the United Kingdom cannot set aside the legislation. The

courts have two options. They can either try to interpret the Act of Parliament in a way that

would not breach the person’s human rights. If that is not possible, the courts can grant

what is known as a declaration of incompatibility. That is a declaration, or a statement, by

the courts that a particular Act of Parliament breaches a Convention right. It is then for
 Parliament to decide how to amend the Act, if it wishes to do so, to make sure that the Act

does not breach a person’s human rights.

52. I will give you just one example. During the Covid pandemic, the government adopted a

series of restrictions on people’s freedom to leave their homes and to meet other people.

A number of people brought a court case alleging that the restrictions breached their

Convention rights. One was actually a businessman living in Monacco who prior to covid

had travelled to the UK, had family in the UK and had business there. The other was a

woman who was unable to see her family and who was a Roman Catholic who was not able

to attend mass at church. The third was a child who was concerned about access to

education.

53. I was the judge who had to deal with that case in July 2020. It was done urgently – within

weeks. It was done via zoom – I was in my study at home looking at my computer screen.

The lawyers and the parties were in different rooms across the country taking it turns to

make their legal arguments.

54. First I had to consider the restrictions on free movement. Initially people were not allowed

to leave their homes except for certain limited purposes. When I heard the case, the rules

had been changed. People were allowed to leave their homes during the day but they could

only meet in groups of 6 people and they had to return home at night.

55. The claimants argued that that breached their right to freedom of assembly in Article 11 of

the Convention and private life under Article 8 and also amounted to unlawful detention

contrary to Article 5.

56. I held that the rules did amount to a restriction on freedom of assembly. But I held that it

was justified and proportionate. They pursued a legitimate aim – the protection of public

health as the aim was to prevent the spread of the Covid infection. They were proportionate.

The context was a pandemic with a highly infection disease capable of causing death was
 being spread. The disease could be transmitted from one human to another. There was, at

that stage, no vaccine. The rules were time limited – they came to an end after 6 months

and had to be reviewed regularly. For similar reasons, I held there was no breach of Article

8 the right to respect for private and family life. Even though the claimant could not visit

her family, including her elderly mother, the restriction was proportionate.

57. I then considered Article 5 – even thought people had to stay home overnight I decided that

that did not amount to detention. They were able to go out during the day. They were in

their own home with their family or others who lived with them. They could of course use

phones and the internet. I held there was no breach of Article 5.

58. Article 9 I found more difficult. That provides for the freedom to manifest religion.

Churches could not hold services and so it was not possible for people to attend mass or

other religious occasions. The same applied to other religions – there was a court case

brought by a mosque which could not hold Friday prayers. I was concerned as to whether

the restrictions on freedom of religion were disproportionate. Fortunately, the day after the

court hearing – and before I gave judgment – the rules were changed so that churches could

have services for up to 30 people.

59. I should say that there was an appeal to the Court of Appeal. But they upheld my decision

that the rules in force at the time did not breach the rights guaranteed by the Convention.

That is an example of how the courts in the UK protect human rights, particularly those

guaranteed by the Convention. We take the text of the Convention, and the case law of the

Strasbourg court, and determine whether the rules are compatible with the Convention.

Conclusion

60. So in conclusion, it is not easy to identify or explain the British constitution. It is a result

of history, of convention, and of practical adjustments to changing political ideas. Although

ancient in form, it tries to ensure that the United Kingdom operates as a democracy, based
on the rule of law, and with proper protection for individual human rights. The way it does

that is often seen by others as unusual. It involves a mixture of legislation, convention, and

judge made rules. It has, on the whole, worked for the last 460 years.