Constitutional Law


Constitutional Law Coursework- “ The essence of the British Constitution lies not in its laws but in its Conventions.” Discuss.


My task, within this piece of coursework, is to discuss whether the essence of the British Constitution lies not in its laws but in its conventions. In completing this task I intend to cover the following:



o What is a Constitution?
o What is the structure and nature of the British Constitution?
o What is meant by the term ‘Conventions’?
o What role do Conventions have within the British Constitution?
o Arguments for and against Conventions and the contradicting views in which they are seen to play within the British Constitution.
o My own conclusion, relating to the question set out above.
Before directly analysing the question set out above, I feel it is necessary to break it down and examine the ‘make-up’ of the British Constitution and to explain the key terms used.. I will begin by explaining what the word ‘Constitution’ refers to. In its broadest sense, a constitution can be defined as a body of rules which regulates the system of government within a state. It establishes the bodies and institutions which form part of that system, it provides for the powers which they are to exercise, it determines how they are to interact and co-exist with one another and perhaps most importantly of all, it is concerned with the relationship between government and the individual. A more complex set of ideas is revealed in an older definition given by Thomas Paine defines a constitution as:


‘A constitution is not the act of government, but of a people constituting a government, and a government without a constitution is power without right… A constitution is a thing antecedent to a government; and a government is only the creature of a constitution’. [1972, Pt II, p 93]


Most countries in the world have a written constitution, usually drawn up at a time of great political upheaval such as defeat in war, following a civil war or revolution or on gaining independence, when existing political arrangements become unworkable and it becomes necessary to make a fresh start. The best-known example of such a constitution, i.e. one in which the basic ideas on government can be found embodied in a document, is that of the United States.


Britain is almost unique in having no written constitution, in the sense of a document or set of documents. Yet we refer to \'the British Constitution\' and it is widely held to exist. But precisely what it is, is difficult to grasp and subject to many interpretations. Much of what we call the Constitution is simply political practice, i.e. the way things are done. Some recent commentators, alarmed at this lack of definition and concerned at the growth in the powers of government and the lack of protection for the rights of the citizen, have gone so far as to say that \'the British Constitution is simply what happens\'. Professor Vernon Bogdanor of Oxford University dismisses this as a \'misleading platitude\'. As he explains, much of our constitution is to be found in written documents or statutes such as Magna Carta, the Bill of Rights, the Act of Settlement and the Parliament Acts.


Having considered the nature of the British Constitution, I will now discuss the main sources from which it is derived. The sources can be divided into three categories:



o The legal rules of the constitution
o Non legal rules and
o Other sources of the constitution
In respect to the legal rules, there are two main sources; legislation and case law. Statutes (legislation) are seen by many as the main source of the \'part-written\' aspects of the Constitution and many people regard them as the most significant source of constitutional law in Britain.


Judicial decisions are also a significant source of constitutional law and take two principal forms:



o The common law proper- laws and customs of the realm declared to be law from early times by the decisions of the judges in particular cases, including prerogative powers.
o Interpretation of statute law- courts have the task of interpreting statute law where the correct meaning of an Act is disputed.
Other sources of the constitution include such things as the law