Study Notes

Sources of the UK Constitution - Historic Texts / Authoritative Works

Level:
AS, A Level
Board:
AQA, Edexcel

Last updated 5 Sept 2017

Constitutional principles, ideas and conventions are also articulated in authoritative works written by expert constitutional theorists and legal scholars, including historic texts and more recent documents on the operation of government, and it is to these sources we can also turn to better understand the constitution in practice and, to some extent, to ‘read’ the constitution. Examples are discussed briefly below.

W. Bagehot, The British Constitution (1867). Bagehot’s seminal work helped define the position of the constitutional monarchy (its role: to encourage and warn the government, and to be consulted – this is still observed today as the prime minister has a weekly audience with the monarch) and set out several (rather Anglophile) comparisons between British and American constitutional arrangements, the latter of which he found too inflexible and lacking in proper accountability mechanisms. Parliament was for Bagehot the fulcrum of political debate and decision-making.

William Blackstone, Commentaries on the Laws of England (1766-1768). Blackstone produced perhaps the earliest notable attempt at defining parliamentary sovereignty, declaring it as representing ‘omnipotence … to do everything that is not naturally impossible’, a concept developed further by Dicey below.

A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885). Jurist and academic Albert Venn Dicey produced a detailed analysis of the rule of law, the importance of Parliament and the precise nature of the relationship between government and the judiciary, also underlining the binding force of unwritten constitutional conventions. He stated Parliament was ‘an absolutely sovereign legislature’ with, ‘under the English constitution, the right to make or unmake any law whatever’. In doing so he quoted eighteenth century political theorist Jean-Louis de Lolme, according to whose estimation Parliament could ‘do everything but make a woman a man, and a man a woman’.

Erskine May, Parliamentary Practice: A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament (1844). Clerk of the House of Commons Thomas Erskine May produced the most authoritative nineteenth century account of the workings of parliament and the importance and status of constitutional conventions, termed the ‘Parliamentary Bible’ by the BBC in a 2008 article.[1] This work is still maintained and updated even today.

The Cabinet Manual (2010): Written by the senior civil servant Cabinet Secretary Sir Gus O'Donnell and published by the government in December 2010, without the need for parliamentary approval (and it can subsequently be amended by the Cabinet Secretary; the document has been criticised for too closely reflecting the perspective of the executive), this gives a written overview of the roles and powers of the key institutions and branches of government, including the devolved administrations, and goes some way towards codifying the position Parliament and the Cabinet government within the British political system. The first such document of its kind for over sixty years, the Cabinet Manual clarifies and articulates conventions relating to the structures and operations of government and is intended as a guide for ministers and other representatives, and for the civil service.

Prime Minister David Cameron wrote in the foreword:

‘The content of the Cabinet Manual is not party political – it is a record of fact, and I welcome the role that the previous government, select committees and constitutional experts have played in developing it in draft to final publication. Cabinet has endorsed the Cabinet Manual as an authoritative guide for ministers and officials, and I expect everyone working in government to be mindful of the guidance it contains. This country has a rich constitution developed through history and practice, and the Cabinet Manual is invaluable in recording this and in ensuring that the workings of government are far more open and accountable.’[2]

Gordon Brown (PM 2007-10) had spoken of his desire for the UK to gain a written constitution and he instituted the process of producing this document shortly before the 2010 election. However, a 2011 Constitution Committee report in the Lords declared the Manual was ‘not the first step to a written constitution’, given that it only described current arrangements and had no ability to entrench the system of government as outlined in the document.

The Cabinet Manual summarises the UK constitution in a single paragraph early in the document:

‘The UK does not have a codified constitution. There is no single document that describes, establishes or regulates the structures of the state and the way in which these relate to the people. Instead, the constitutional order has evolved over time and continues to do so. It consists of various institutions, statutes, judicial decisions, principles and practices that are commonly understood as ‘constitutional’. The UK does not have a constitutional court to rule on the implications of a codified constitution, and the sovereignty of Parliament is therefore unrestrained by such a court.’[3]   

[1] Clerk of the House, Democracy Live, BBC Online, 14 August 2008. http://news.bbc.co.uk/democracylive/hi/guides/newsid_81000/81956.stm

[2] ‘The Cabinet Manual: A guide to laws, conventions and rules on the operation of government’, published by the Cabinet Office on 14 December 2010. Available here in PDF form: https://www.gov.uk/government/publications/cabinet-manual

[3] Ibid..

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