3 All er 400 at 412, Lord Hoffman remarked that ‘the courts of the

United Kingdom . . . apply principles of constitutionality little differ-

ent from those which exist in countries where the power of the legis-

lature is expressly limited by a constitutional document.’

The notion of a written constitution was the product of a period of

revolutionary change throughout Europe and America that began in

the late eighteenth century. New regimes liked to enshrine their prac-

tices and aspirations in grandiose written declarations. The UK is

unique among the major nations in not having a written constitution in

this sense. Our constitution has developed pragmatically usually out of

accommodations struck between different sectional interests and we

39

40 General Principles of Constitutional and Administrative Law

value the appearance of continuity and tradition as a means of social

cohesion (or social control). For example our most recent revolution

in 1688 was presented to the public as a return to ancient values which

the Stuart monarchs were supposed to have subverted rather than the

establishment of a new regime. During the following century the ruling

elite continued to promote the constitution as resting upon widely

accepted traditions. For example, Lord Chesterfield remarked that

‘England is now the only monarchy in the world that can properly be

said to have a constitution’ (King, 2000, p. 79 quoting OED). During

the eighteenth century Britain’s unwritten constitution was widely

admired as a source of stability and justice (although historians dis-

agree as to how impartial that justice was in practice; see Thompson,

1975). Latterly our constitution has become less admired and is some-

times regarded as the least democratic constitution in western Europe

in its concentration of power in the hands of the executive.

Our unwritten constitution must therefore be imagined partly out of

the general sources of law, namely Acts of Parliament which are effect-

ively made by the government of the day, common law in the form of

decisions of the higher courts, and the ‘laws and customs of Parliament’

made by each House in order to control its affairs. In particular the

common law as a source of general principles and values is sometimes

regarded as the most basic source of our constitution. Statutes enacted

to deal with specific matters are depicted as isolated islands in a sea

of common law (see Nolan, 1997, ch. 2). The common law develops

incrementally case by case focused on private rights and duties. Rad-

ical institutional changes therefore require statute such as for example

the Act of Settlement 1701 that established the modern monarchy, the

Parliament Acts 1911 and 1949 that reduced the powers of the House

of Lords and the European Communities Act 1972 which subjected

UK law to European law.

The UK constitution also relies heavily upon unwritten rules known

as constitutional conventions. These are not strictly speaking law at all

because they are not directly enforceable thorough the courts and have

no authoritative sources other than recognition and obedience by

those affected by them. However, conventions are closely related to

law and are used by the courts at least as background to help them

interpret the law. Most conventions concern the relationship between

the different branches of government, both defining their powers and

providing accountability. Examples include the rules that the Queen

must appoint as prime minister the person who commands a majority

in the House of Commons, and must act on the advice of ministers,

and the rule that the government must resign if it loses the confidence

41

The Sources of the Constitution

of the House. The combination of these conventions creates what are

perhaps the central political tensions in our constitution namely the

concentration of power in the executive and the responsibility of

Parliament both to sustain the executive, in the sense of providing the

resources to keep the government functioning, and to hold the execu-

tive to account. As we shall see below, conventions are politically

binding even if they are not legally enforceable.

There are also ‘practices’ which are of constitutional significance

even though they are not in any sense binding. The most obvious of

these is of course political parties through which contenders for power

organise themselves. There is no legal or conventional requirement that

there be political parties and strictly speaking a political party is a pri-

vate voluntary organisation. However, in a large and complex society

containing many different points of view the existence of parties as

means of co-ordinating and organising competing claims is inevitable

and no one would doubt that political parties are in fact a central

feature of the constitution. Because the majority party in Parliament

also forms the executive, party leaders can control both the legislature

and the executive. Indeed it has been said that ‘parties have substituted

for a constitution in Britain. They have filled all the vast empty spaces

in the political system where a constitution should be and made the

system in their own image’ (Wright, quoted in Nolan, 1997, p. 83). The

importance of parties has been recently recognised by legislation which

attempts to ensure that the funding of political parties is fair and trans-

parent (Political Parties, Elections and Referendums Act 2000).

Some modern writers argue that the dependence of the UK consti-

tution upon conventions and practices makes it no more than the

wishes of those in power: hence Griffiths’s much quoted aphorism ‘the

constitution is no more and no less than what happens’ (1979, p. 19).

Similarly Hennessy (1995, ch. 1) describes the UK constitution as an

‘insiders’ constitution’ which is under the control of the government of

the day and in particular the unelected officials who secure the contin-

uity of the system at times of political crisis or change. He recounts the

Victorian conceit that conventions embody ‘the general agreement of

public men about ‘‘the rules of the game’’ ’ (ibid. 37), a proposition that

remains significant today. Thus Bogdanor describes the UK constitu-

tion as ‘a very peculiar constitution which no one intended whereby the

government of the day decides what the constitution is’ (ibid., p. 165).

Conventions and practices are not peculiar to the UK constitution

although we probably rely upon them more than most. Human beings

survive by copying each other and in any political system custom and

practice inevitably play large parts. Moreover every important matter

42 General Principles of Constitutional and Administrative Law

is unlikely to be included in a written constitution. For example the

US constitution contains considerable detail on matters which were

thought important at the time it was framed (1788), such as the age

composition of the legislature, and the quartering of soldiers, but makes

no express provision for the judicial review of legislation, a gap that was

later filled by the Supreme Court in accordance with its own idea of the

purpose of the constitution (Marbury v. Madison 5 US 137 (1803)).

Moreover a written constitution which is drafted in vague terms, as are

parts of the US constitution, is capable of being interpreted in many

different ways and is as much a vehicle for the opinions of those in

power as is the case with the unwritten constitution of the UK.

Our constitution, in common with written constitutions, also depends

on diffuse sources in the sense of uses of language, practices and

attitudes which express the evolving political culture of the domi-

nant sections of the community. It is often remarked in this connection

that constitutions are organic, developing in response to cultural and

political changes and also influencing those changes. There may be an

underlying pattern forming a constitutional culture which shows itself

particularly in changing relationships between institutions and in the

way individual rights are conceived. In the case of a written constitu-

tion this pattern may be revealed by changing ways in which the courts

interpret the constitution. For example the US Supreme Court has at

different times interpreted the same constitutional language as both

supporting and outlawing racial segregation (see Plessey v. Ferguson

(1896); Brown v. Board of Education (1955)). In the UK there has been

an evolutionary change in legal culture over the last 40 years in the

courts’ willingness to review governmental decisions and to apply

international treaties concerning the protection of human rights. In all

countries the language and imagery by which constitutional matters

are expressed, not only in official documents but also in literature and

the media, generates legal, ethical and political assumptions that are

brought to bear on problems (see Ward, 2000). We have already met

examples of this in the form of vague but evocative phrases such as

‘the rule of law’, ‘balanced constitution’, ‘harmonious constitution’, or

‘ancient constitution’. These tend to change their meaning over time

being put to different uses by different generations for their own

political purposes.

The influence of customary values is not necessarily benevolent and

custom may become dead wood but still inhibit legal change. For

example during the extension of the franchise that took place during

the late nineteenth century the cause of female suffrage was hampered

by the courts refusing to interpret the word ‘person’ in legislation

43

The Sources of the Constitution

as including a woman on the ground that this violated the tradition that

women did not hold public office or vote so that very clear parliament-

ary language was needed to change the status quo (Nairn v. University

of St Andrews (1909)).

Moreover, the mind-set that has produced our heavy reliance on

conventions has also caused us often to rely upon informal non-legally

binding mechanisms on the grounds that they can be implemented

quickly and co-operation may be secured more easily where there is no

legal threat. This blurring of the distinction between law proper and

conventions may be one factor contributing towards the deference to

officials that is a prominent cultural phenonomen in the UK. For

example, under the auspices of the Committee on Standards in Public

Life various non-statutory codes of conduct have been made in respect

for example of ministers and civil servants. In the case of the Ministerial

Code it is not clear who is responsible for enforcement although,

according to the Committee (6th Report cm. 4557-1), it should be the

prime minister. In this respect a written constitution has the advantage

that it is a public commitment to at least some of the basic principles

of the community to which officials can be held. It can establish clear

lines of political and legal accountability.

A written constitution can also be given a special status requiring

changes to be made according to a special process, independent of

the government of the day and which reflects the importance of the

constitution, a device known as entrenchment. The special proced-

ure might involve for example a referendum of the people, or, as in the

USA, a weighted legislative procedure which takes into account the