It's a common misconception and Eddy explained it well enough. I would however argue that the constituion is not so much
unwritten, as
uncodified.
The British Constitution (as a constituional Monarchy) is rooted in a number of core principles - the Sovereignty of Parliament, the Rule of Law, Unitary State, Judicial Independence and Separation of Power. The last of these being [perhaps] a little 'fuzzy' and becoming fuzzier.
There are a few more clearly identifiable elements:
- Magna Carta (now mostly repealed)
- The Bill of Rights
- The Settlement Act
- Parliamentary convention
- Almost a millennia of Case Law
There are numerous other acts and such like, although many of these tend to merely reinforce the above rather than assign or revoke specific rights in themselves some are key acts in their own right;
Parliament Act of 1911, the
Representation of the People Act of 1918, The
Statute of Westminster, most especially the
Royal and Parliamentary Titles Act and more recently, the
House of Lords Act of 1999.
You may ask why I omitted the Human Rights Act of 1998. Well it's because the inclusion of the ECHR into British Law was considered [to a degree] 'irrelevant' - in part because of the tradition of '
negative rights' - that which is not forbidden, is allowed.
The 1998 act primarily required that courts interpret statutes in a manner compatible with it [the ECHR], and that subsequent British legislation was also compatible with it. Although it only applies to Public Bodies ... there is an implied duty for Jurists to act in accordance with it when considering civil matters.
That said, I still welcomed it and it's proven a useful club with which to bludgeon recalcitract HMG departments when they attempt to ride roughshod over precedent and basic human decency.
The ECHR/HRA also opened the door for UK Courts to 'challenge' [but not ignore] Acts of Parliament where these are deemed 'incompatable' with it - allowing it theory a Judicial Review of Primary Legislation, something previously 'banned' under the convention of Parliamentary Sovereignty. It also allowed defective legislation to be remedied more quickly where it was deemed fundamentally at odds with it.
Many were [and are] up in arms at the idea that Brussels could override the British Parliament, although that's not really the case - by which I mean it's not
that simple - but it's certainly proven a useful political football, and led to some spintering of traditional, monolitic political party structures.
Parliamentary Sovereignty has been further 'diluted' by partial devolution of power to the 'regional' assemblies (Scotland, Wales and N.I.). That said, while these assemblies have the power to pass primary legislation in matters within their own spheres of influence, such power derives from Westminster and they remain subject to suspension by Westminster at any time.
It's also worth mentioning - in the context of Judicial Independence - that Judges have been increasingly vocal and more openly hostile to Parliamentary overreaching and to certain acts of legislation.For example,in 2004 the then Lord Chief Justice basically refused to uphold certain elements of a proposed Immigration and Asylum Bill were it to become law. This forced the Government to back down and rewrite it in a weaker form.
This reminds me of the days when a certain Home Secretary was on the receiving end of a number of unfavourable and unwelcome judicial rulings. He used to sulk like a spoiled child. Not that I always agreed with the decisions from a
personal perspective (remember the Bulger case?) but regardless, any Home Secretary is [usually] out of order if he allows public sentiment to override the judiciary. There's a good reason why victims of criminals are not the arbiters of their punishment.
Having said that, such behaviour tends to go with the job, and the present HS is yet another examplar to those who would seek to learn the skills required to abuse power, privilege and civil rights with comparative impunity.
All this is a tremendous simplification [with more than a few personal ancedotes] and
numerous other events have occured, legislation passed and precedents set that bear on this thing called the British Constitution. Many of which I possess but a passing knowledge or understanding.
"An Introduction to the Study of the Law of the Constitution" by Jurist Albert Dicey is considered a seminal text on the British Constitution. Written in 1885 it's a little out of date perhaps, but it's a solid start.
I sometimes think that it would be better to have a written constitution but mostly I think it works OK as it is. However I have become far less comfortable in that belief over the last decade as I see the creeping enroachment of Parliament in aspects of [my] life where I believe Government has no business.
In addition, were a constitution to be codified by any contemporary administration (of any persuasion) I shudder to think what it would include and more troubling -
exclude.
Perhaps, just
occasionally, a little 'ambiguity' isn't such a bad thing.:smile: