“Our Constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law"
- Albert Venn Dicey
“The British Constitution has always been puzzling and always will be”
- Queen Elizabeth II
As most people know the Constitution of the UK is uncodified which means it is not all written down in one place, it comes from its Sources. An example of a codified constitution id the Constitution of the United States of America. This essay isn’t planning to answer a question but to have a look into sources of our constitution. There are five sources of the Constitution: Prerogative Powers, Conventions, Common law, Statute law and Works of Authority. You could also say that there is a sixth source, the Magna Carta, which will be the last thing this essay will include before it concludes.
But first, a question for you the reader. What is a constitution? A) it a person? B) it a building? Or C) a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed? If you chose C, then you would be correct. But what does it do? Well, it does many things. It describes the power between political institutions and regions. It Establishes relations between institutions. Specifies the processes of Government and specifies the limits of Government. It establishes the civil rights of the citizens and also establishes the process for becoming a citizen and who is a citizen. And lastly a constitution establishes the method by which it (the constitution) can be amended, or in some cases overruled.
Prerogative Powers or otherwise known as the Royal Prerogative
This term describes the powers held by the monarch or by Government ministers that may be used without the consent of the House of Commons or the House of Lords. An example for the Monarch to use these powers is for the dissolution of parliament. If the Prime Minister loses a vote of no-confidence, they will request that the Monarch dissolves parliament so they can have a General Election. An example for a Minister to use these powers is when the Prime Minister is choosing their Cabinet. In America the Senate have to approve the Cabinet nominees whereas in the UK the Prime Minister doesn’t have to go through that process to have a cabinet because it has the prerogative power.
Conventions
A convention is an unwritten understanding about how something in Parliament should be done which, although not legally enforceable, is almost universally observed. Occasionally a new convention is agreed in order to resolve a specific procedural issue that has arisen.
Examples of a convention are, the Monarch granting Royal Assent to each bill passed by Parliament or the Monarch appointing the Prime Minister.
Common law
After the Conquest of the Normans the courts, set up by the English Monarchs began to create a single body of law to apply across the country which would be superior to the local laws and customs that had existed before, this is Common law. A crime is said to be an offence at common law if the judges
have always treated it as a crime. Examples are murder, manslaughter and common assault. Other offences may be developed by the judges, such as misconduct in public office.
Statute law
An Act of Parliament (also called a statute) is a law made by the UK Parliament. All Acts start as bills introduced in either the Commons or the Lords. When a bill has been agreed by both Houses of Parliament and has been given Royal Assent by the Monarch, it becomes an Act. The difference between these two types of law is that Common law is developed by judges, but Statute law are acts passed by Parliament.
Works of Authority
Works of authority on the United Kingdom constitution are books written by constitutional theorists that are considered to be authoritative guides to the UK constitution. The United Kingdom has no written overall Constitution, so these are guides as to the rules and customs of the country. They can be adopted or overridden by acts of Parliament. Examples of Works of Authority are: Walter Bagehot's The English Constitution (1867). An Introduction to the Study of the Law of the Constitution (1885) by A. V. Dicey. A Treatise on the Law, Privileges, Proceedings and Usage of Parliament (popularly known as Parliamentary Practice), first published in 1844, by Erskine May. And the Rule of Law by Lord Bingham.
The Magna Carta
The Great Charter is one of the most important documents in British History. It establishes the principle that everyone is subject to the law, even the King, and guarantees the rights of individuals, the right for justice and the right to a fair trial. The whole document is written in Latin, and the original Magna Carta had 63 clauses. Today, only three of these remain on the statute books; one defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, and the third gives all English subjects the right to justice and a fair trial.
In conclusion, well there isn’t really anything to conclude because there was no question to answer. Or was there? A.V. Dicey says that our Constitution is a judge-made constitution, which I have to agree with. Two of the five sources are types of laws so that points me in that direction. But also, in the case of Works of Authority, Acts of Parliament can adopt or override these works, so the Members of Parliament and the Members of the Lords could also be considered Judges. The quote at the top from Queen Elizabeth II reminded me of a phrase said about the Holy Trinity – It is a mystery, and it always will be. The question that will be left with you the reader is this, which is more puzzling? Which is more of a mystery? The British Constitution or the Holy Trinity?