Saturday, 16 July 2011

The written British constitution

The British constitution may be uncodified, but it is not unwritten.  As Lord Scarman put it:
[O]ur constitution is not "unwritten" but hidden and difficult to find. Much of it is, of course, in writing in the sense that it is published and available to all who wish to read it. The 1688 settlement is incorporated into our statute law: but how many of us read Acts of Parliament? And the settlement is not the whole constitution.... The citizen lacks a constitution which he can read and understand....
In this post, I want to identify some places where the written British constitution can be located.

1.  Statutes

In a previous post, I sought to distill the following list of constitutional statutes:

• Magna Carta
• Bill of Rights 1689
• Act of Settlement 1700
• Act of Union 1707
• European Communities Act 1972
• Human Rights Act 1998
• Scotland Act 1998
• Government of Wales Acts 1998 and 2006 

To these can probably be added the Constitutional Reform Act 2005 and the Constitutional Reform and Governance Act 2010.

2.  Treaties

• The Treaty on European Union (originally the Maastricht Treaty)
• The Treaty on the Functioning of the European Union (originally the Treaty of Rome)
• The European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms) 

3.  Cases

Case of Proclamations (1611) 12 Co Rep 74 - The monarch has no unilateral power to legislate and must act within the law.

Entick v Carrington (1765) 19 State Tr 1029 - Officers of the state must act within the law.

Pickin v British Railways Board [1974] AC 765 - Parliament is sovereign and supreme.

R v Secretary of State for Transport (ex parte Factortame) (No 2) [1991] 1 AC 603 - EU law takes precedence over domestic UK law by virtue of the European Communities Act 1972.

M v Home Office [1994] AC 377 - Injunctions bind the executive because the executive is required to obey the law.

Jackson v Attorney General [2005] UKHL 56 - Landmark set of judgments from the House of Lords on the Parliament Acts and parliamentary supremacy.

4.  Academic works

Halsbury's Laws says that "in a field such as constitutional law, where case law is often scanty, the views of writers of repute enjoy considerable persuasive authority".

Works of authority would include the following:
• Blackstone, Commentaries on the Laws of England (1765-1769)
• Dicey and Wade, Introduction to the Study of the Law of the Constitution (10th ed., 1959)
• Bogdanor, The Monarchy and the Constitution (1995)
• Bradley and Ewing, Constitutional and Administrative Law (15th ed., 2010)
• Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th ed., 2011)

5.  Official documents

Final report of the Joint Committee on Conventions (2006)
• The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report (2009)
• The draft Cabinet Manual