Teaching Comparative

An unwritten constitution?

Sanford R. Silverburg of Catawba College in Salisbury, NC, sent along this exchange from an international law list serve that's based at Columbia University.

The reply to Dr. Fernandez' question offers a great summary of the British constitutional system, which is a wonderful addition to the traditional textbook statement that the UK has no written constitution.

It doesn't answer the question of how the British have managed to preserve a constitutional system when the legislature is unfettered. Most Americans would probably be appalled by the thought that their rights and regime were, in part, guaranteed by "numerous unwritten conventions and practices..."


On 11/08/2007, at 8:14 AM, Dr. Juan Carlos A. Fernández wrote:

> Dear all,
>
> If the British Constitution is not written, i.e. there is no Constitution from the dialectical perspective of law interpretation, who decides that a law is unconstitutional? The Supreme Court? I have some papers here that say that the unconstitutionality process is carried out by the legislative power. Is the judiciary restricted in these issues?
>
> I want to make clear that I have asked this question to several continental US lawyers specialized in constitutional law and they don't know how the proces works.
>
> Could anyone illustrate me? My apologies for not understanding this process.
>
> Thanks and regards,
>
> Juan Carlos
>
> Dr. Juan Carlos A. Fernández
> Abogado - Attorney
> Buenos Aires · Argentina
> legal@centrad.com.ar
>

The answer came from Ron Huttner in Melbourne Australia:

From: International Law Librarians List (Int-Law) on behalf of Ronald Huttner
Sent: Sat, 8/11/2007 7:05am
To: Int-Law@CIESIN.COLUMBIA.EDU
Subject: Re: [Int-Law] BRITISH CONSTITUTION - Reply

Hi Juan Carlos,
It is actually not entirely accurate to say that the United Kingdom does not have a written constitution. It does, but that constitution is embodied in a multiplicity of statutes, treaties and judicial decisions - many dating back many centuries. There are also numerous unwritten conventions and practices - many of which are centuries old - which also underpin what is referred to as the "Westminster System" of government.

What it is important to understand is that Parliament is completely sovereign in the United Kingdom and the UK Parliament, unlike the parliaments of the USA and Australia for example, has unlimited legislative power. No court in the UK can declare an Act of Parliament "ultra vires" (i.e. beyond power), because the Parliament has unrestricted power.

A UK Act of Parliament might, arguably, be in breach of the UK's international obligations, however. E.g. if it offends against the Treaty Of Rome or some other international treaty to which the UK is a signatory. But that would be a matter for international law to determine, rather than a matter of "constitutionality" under UK domestic law.

There is no real counterpart, in the UK, to the concept of an "unconstitutional statute" as understood in a country such as the USA, where the central (i.e. federal) government has quite specific and limited legislative powers only - as set out in its written constitution. I suggest you start your further research by looking at:-
http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom
Then do some more searching on Google. There is heaps of useful material out there.
Let me know if I can assist further, though bear in mind that my country is like the USA and NOT at all like the UK in this area of law.

Regards,

Ron Huttner LL.B (Hons)
(Retired) Barrister, Solicitor,Law Lecturer and Legal Researcher
Melbourne
Victoria
Australia

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Labels: constitution, rule-of-law, UK

posted by Ken Wedding @ 8:40 AM