Updated: Jun 27, 2020
This is quite a complex question that has kept legal thinkers arguing for many years, I will attempt to give a short rundown of the issues surrounding the UK constitution as an introduction to those who may not be familiar with how the changing of laws and protection of rights works within the UK.
Unlike our American friends across the pond, the UK does not have a comprehensive constitution in a written form. That is to say we do not have a list of what we consider our rights that cannot be easily altered by subsequent laws. This is quite unusual, as it currently stands, only 4 other states have an unwritten constitution like the UK. The concept of having the rights of individuals written in such a way arguably goes against old British principles, for example, it is argued in most of Europe their constitutions outline what citizens have the right to do, or to put it another way “everything that is not allowed is forbidden”. But in England, we have historically considered that if something is not expressly blocked by the law we have the right to do it or “Everything that is not forbidden is allowed”.
Perhaps the most important principle in UK law is that of Parliamentary Sovereignty. This essentially means that the system is built upon the idea that Parliament has the power to create or destroy any law it wishes and no power is above Parliament. In fact, this principle goes so far that in the eyes of British law, Parliament could pass a law for a different country, a famous example being to make it illegal for anyone to smoke on the streets of Paris. This law would obviously be a silly one, as none of the French police officers would enforce it as we have no power over them and we could not actually make sure the law was followed, but Parliament’s power in the eyes of our system is this great.
Due to our Parliament potentially changing throughout a government or whenever an election is held, we need to consider the scenario that Parliament passes a law that goes against a law a previous Parliament passed. Parliamentary Sovereignty outlines that it is always the Parliament currently in power that has the law-making ability; as such the current Parliament can overturn any previous law. Even when a new law is made and does not expressly say that it is overturning a previous law, if the new law goes against a previous one, the old law is automatically removed as the current Parliament has all of the law-making powers and it is their laws that need to be given the highest authority. This automatic removal of old laws is called implied repeal and ensures that the supreme law-making power resides with the most current Parliament.
Because of Implied repeal, it is meant to be impossible for any Parliament to bind a future Parliament as doing so would take away from the future Parliament’s power and therefore destroy the concept of Parliamentary Sovereignty. For example, if a Labour government passed a law outlining it and all future governments had to pay a minimum wage of at least £20/ph, and in the next election the Conservative government gained power and passed a law making minimum wage £10/ph, it would not matter that the previous law stated all future governments had to abide by it, as the new Parliament has all of the law-making power and the new law automatically destroys the old one as it is passed.
The system is very effective, as it allows the quick making and overturning of laws and it is always clear where the power is. However, we can see that in the modern world, where Britain is tied to many different countries around the world, the system does not quite work as intended. One example of this would be the European Convention on Human Rights. After World War 2, many of the governments of Europe decided to sign the convention outlining the rights all citizens would have, we still have these rights today, and they were officially placed into UK law with the Human Rights Act 1998. The Act outlines what is and isn’t acceptable when taking the rights into account and it sets up a system where UK judges can hear cases where citizens claim the rights are being breached. If the judges agree that a new UK law breaches the rights in the convention they can flag the law as such with a – declaration of incompatibility. When the judges do this, it does not overturn the law, or stop it being effective, but highlights that if the government do not change it, the case would likely win if taken to the European Court of Human Rights which would then fine the government until the law was changed.
As can be seen, this brings in several issues. For example, implied repeal states that any new law incompatible with an old one replaces the old law, but when a law that goes against the Human Rights Act 1998 is passed, it does not overturn the Human Rights Act, the new law gets flagged as a problem by judges. This shows that although it is meant to be impossible, it seems a law has been made that essentially binds Parliaments after the one that passed it to follow its terms. It should be remembered that Parliament could still get rid of the Human Rights Act if it wished if it passed a law specifically saying it was doing so, but implied repeal does not seem to work with the act and removing it would come with other problems.
Another issue here is that if our Parliament truly has all of the power when it comes to making and undoing laws, why can the European Court of Human Rights in another country, fine our government for a law it says goes against human rights? Again, it should be remembered that Parliament when receiving such a fine could just refuse to pay it, stating that they do in fact have the power to pass any law they want. This would however come with consequences as there would almost certainly be international backlash from other countries and we would be seen to be going back on agreements we have made. The same issues can be seen with other pieces of legislation, for example the European Communities Act 1972 that entered the UK into what turned into the European Union which will be looked at in more detail in another article.
It is argued that since Parliament agrees to be bound by acts like this then there is no problem; but it can be see that there is a clear watering down of the principles that the legal system of the country is built on, and the practical effects of these changes leave Parliament with very little real choice.
So, does the UK have a written constitution? Not really, as the system is constructed in such a way that it would make doing so impossible without serious overhaul. However, there is a creeping watering down of the principles the system is built on that are allowing some acts to become entrenched in the law so that future Parliaments have to follow them.