HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara, Naya Raipur

SALIENT FEATURES OF BRITISH CONSTITUTION: AN

ANALYTICAL STUDY

2018-19

SUBMITTED TO
MR.ASHUTOSH KUMAR AHIRE
(ASSISTANT PROFESSOR, FACULTY OF POLITICAL THOUGHT)

SUBMITTED BY
TARUNA SHANDILYA
SEMESTER IV,
SECTION B

ROLL NO. 180

 2

DECLARATION

I, Taruna Shandilya hereby declare that the project work entitled, ‘Salient Features of
British Constitution: An Analytical Study’ submitted to H.N.L.U., Raipur is record of an
original work done by me under the able guidance of Mr. Ashutosh Kumar Ahire, Faculty
Member, H.N.L.U., Raipur.

TarunaShandily
a
Semester IV
Section B
Rollno. 180
 3

ACKNOWLEDGEMENTS

I feel highly elated to work on the topic “Salient Features of British Constitution: An
Analytical Study”.

Thepracticalrealizationofthisprojecthasobligatedtheassistanceofmanypersons. Iexpress my
deepest regard and gratitude for Mr. Ashutosh Kumar Ahire, Faculty of Political Thought.
His consistent supervision and invaluable guidance have been of immense help in
understanding and carrying out the nuances of the projectreport.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and throughInternet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

TarunaShandily
a
Semester IV
Section - B
Rollno. 180
 4

CONTENTS

Declaration ..........................................................................................................02

Acknowledgements ............................................................................................. 03

Introduction ......................................................................................................... 05

ReviewofLiterature ............................................................................................ 06

Objectives ofthestudy ......................................................................................... 07

Research Methodology andDataCollection ....................................................... 07

Chapterization

i) Constitution: Its meaningand

function ................................................................................................ 08

ii) Development of British Constitution

……………………………………………………………………….11

iii) Analytical study of the Salient features of the British

Constitution ........................................................................................ 14

Conclusion ......................................................................................................... 18

BibliographyandReferences ................................................................................19
 5

INTRODUCTION

The UK has no written constitution. Nor does England have a constitution, neither written nor
formulated. The United Kingdom is one of the few countries of the world that does not have a
written constitution: it just has what is known as an "uncodified constitution".
Thus the only "British Constitution" that exists is a set of rules and regulations constituted by
jurisprudence and laws (English and Scottish law), and by various treaties and international
agreements to which the United Kingdom has signed up. This uncodified constitution has
largely developed out of historic English law, since many of its founding principles and
essentiallawsgobacktochartersandbillsthatweredrawnupbytheEnglishparliament.

AlthoughEngland'sparliament,often called"the mother of parliaments"hasexistedforover

seven centuries, the founding document of England's "constitution" is generally considered to
be the Magna Carta, or Great Charter of the Liberties of England, which the barons drew up
and forced King John to sign in the year 1215. The spirit of this document has guided the
evolution of English law over the centuries, as well as inspiring numerous constitutional
documentsdrawnupbyothercountries,includingnotablytheConstitutionoftheUnitedStates of
America, and the Universal Declaration of Human Rights. Among
other landmark bills that have established major new principles in the British Constitution are
the English Bill of Rights, passed after the Glorious Revolution of 1689, and the Acts of
Union, of 1707, establishing the linking of England and Scotland within a United Kingdom.

Finally, there are other elements that serve to define the rights and obligations of the British
people. Britain has signed up to numerous international conventions and treaties, which can
determine the legality or otherwise of actions or processes, such as marine pollution orhuman
rights.EuropeanlawalsoappliesintheUK,andaccordingtothe principleofPrimacyincluded in the
charter of the European Union, EU law takes precedence over UK law in any event of
incompatibility.
 6

Review of Literature

British Government and Politics: A Comparative Guide

Duncan Watts has wide experience of teaching and examining, both in Modern History and
Government and Politics. Formerly a Head of Department in both Grammar and
Comprehensive schools, and Editor of the Politics Association Resource Centre, he is now
involved in some part-time tutoring at 'A' Level, but much of his time is spent in writing on
aspects of modern political development. Among several other publications, he has written
widely on citizenship, political communication, the European Union and American
government and politics, as well as producing an extensive range of teaching materials. He is
the series editor of Politics Study Guides (EUP)

Constitutions of the World

MVPylee’sConstitutionsoftheWorldisauniquecompilationoftheConstitutionofselected
countriesoftheworld.Completeandupdatedinallrespect,inthisrefreshedfifthedition,every care
has been taken to incorporate all the amendments in the Constitutions of countries taken place
since the publication of the last edition in 2012. All efforts have been made to keep the
readers aware and updated with all the latest amendments in the Constitutions of the world.
Thisbook,inthepresentformat,shallbeusefulasacomprehensiveguideforresearchpurpose. This
compilation shall also be of great help for framing of new Constitutions for nations as well
for re-modelling the existing Constitutions. The book shall undoubtedly render immense
assistance to the Bench, Bar, Academicians, Researchers, Students, Libraries, Governments
and intellectuals who are interested in field of jurisprudence of comparativeConstitutions.
 7

Objectives of the Study

The objectives of the project are as follows: -

1) To study constitution and itsfunctions.

2) To study the background of BritishConstitution.
3) To analyze the salient features of BritishConstitution.

Research Methodology and Data Collection

This Project is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information and data. Books and other reference as guided by
Faculty of political science have been primarily helpful in giving this project a firm structure.
Websites have also been referred.
 8

Chapter 1 - Constitution: Its meaning and functions1

Constitution:
A constitution is a body of rules or laws coming in varied shapes, sizes and formats;
determining the organization of Government and the basic principles on which its powers
areexercised.

Lord Bryce states:

“Theconstitutionofastateoranationconsistsofthoseofitsrulesorlawswhichthedetermine the form
of its government and respective rights and duties of it towards the citizens and of citizens
towardsGovernment.”

Itisinshort, aruleofbookofanation,codifyingruleoflaw.Constitutionisalegaldocument
havingaspeciallegalsanctity,whichsetsouttheframeworkandtheprincipalfunctionsofthe organs
of the government of a state, and declares the principles governing the operation of
thoseorgans.LikeeveryotherConstitution,theBritishConstitutionalsoseekstoestablishthe
fundamentalorgansofgovernmentandadministration,laysdowntheirstructure,composition,
powers and principal functions, defines the inter-relationship of one organ with another, and
regulates the relationship between the citizen and the state, more particularly the political
relationship.

A constitutionis a set of laws on how a country is governed. The British Constitutionis

unwritteninonesingledocument,unliketheconstitutioninAmericaortheproposedEuropeanConsti
tution, and as such, is referred to as an uncodified constitution in the sense that there is no
single document that can be classed as Britain’s constitution. The BritishConstitutioncan
befoundinavarietyofdocuments.Supportersofourconstitutionbelievethatthecurrentway allows
for flexibility and change to occur without too many problems. Those who want a written
constitution believe that it should be codified so that the public as a whole has access toit–
asopposedtojustconstitutionalexpertswhoknowwheretolookandhowtointerpret

1
Madabhushi Sridhar , Evolution and Philosophy behind the Indian Constitution available at
:http://www.hrdiap.gov.in/87fc/images11/4.pdf.
 9

it. Amendments to Britain’s unwritten constitution are made the same way – by a simply
majority support in both Houses of Parliamentto be followed by the Royal Assent.

After Parliament, the other great base of the United Kingdom's uncodified constitution is
"Common Law". Great Britain does not have a "penal code" nor a "civil code"; its "Common
Law" is the fruit of centuries of jurisprudence, that is based on historic principles of "natural
law" (moral law, founded on historically accepted basic principles of right and wrong) .
Common Law, though based on the principle of "precedent", can change at any moment, as it
is determined by judges; for this reason, it evolves slowly to reflect changes in society and
social norms. It cannot evolve in a manner that is in contradiction with social norms or
parliamentary law, as any controversial verdict based on common law would be challenged in
the courts of appeal.

Being uncodified, the Constitution of the United Kingdom is in a state of constant flux. Each
newlaw,eachnewmajordecisionbyjudges,becomesanewstoneintheedificeoftheBritish
Constitution. Thus, the British constitution changes all the time, very slowly, often
imperceptibly. Britain moves forward by evolution, not byrevolution.

Functions of the Constitution

The Constitution is a political structure, whether it is written or not and followed or not. They
have several functions.2

a. Expression of Ideology: it reflects the ideology and philosophy of a nationstate.

b. ExpressionofBasicLaw:Constitutionspresentbasiclawswhichcouldbemodifiedor
replaced through a process called extra ordinary procedure of amendment. There is a
speciallawalsowhichusuallyfocusupontherightsofthecitizens,forinstance,rights
concerning language, speech, religion, assembly, the press, property and soon.

c. Organizationalframework:Itprovidesorganizationalframeworkforthegovernments. It
defines the functions legislature, executive and judiciary, their inter-relationship,
restrictions on their authorityetc.

2
http://www.universityofcalicut.info/syl/ComplementaryCourseIndianConstitutionI.pdf
 10

d. Levels of Government: Constitution generally explains the levels of different organs

of the Government. Whether it is federal, confederal or unitary will be described by
the Constitution. They delineate the power levels of national and provincial
governments.

e. Amendmentprovision:Asitwouldnotbepossibletoforetellallpossibilitiesinfuture with
great degree of accuracy, there must be sufficient provisions for amendment of the
Constitution. It should contain a set of directions for its own modifications. The
systemmightcollapseifitlacksinscopeformodification.Inherentcapacitytochange
according to changing times and needs help any system to survive andimprove.
 11

Chapter 2 - Development of British Constitution

The constitution of almost every country in the world exists in the form of a writtendocument
embodying the principles of governance. However, the British Constitution is an exception to
this fact in that it is to a large extent an unwritten constitution. It does not exist in the form of
a single codified written document. The British Constitution is the product of history and the
result of evolution spanning over a long period of time. This unit explains the process of
constitutional development in Britain through various stages ofhistory.

The British Constitution is a product of a long process of evolution. The present mechanism
and functioning of government in Britain can only be understood if we analyse the process of
thisgrowth.Generallyspeaking,theprocessofdevelopmentoftheBritishConstitutioncanbe
broadly divided into six main periods, which are discussedbelow:

 Anglo-Saxon Period (400AD-1066AD):The first period to which the growth of

EnglishpoliticalinstitutionscouldbetracedisthatofSaxonsettlement.TheSaxonrule
continuedtill1066whenWilliamofNormandyconqueredEngland.Duringthisperiod,
England was a loose aggregation of tribal Commonwealths comprising seven
“Kingdoms”,- East Anglia, Merica, Nothumberland, Kent, Sussex, Essex andWessex
.In the ninth century, Wessex established its sovereignty over all other “Kingdoms”
which were absorbed into a larger territory. In the process, the institution of Kingship-
asinglesovereign-wasborn.Besideskingship,theinstitutionoflocalgovernmentwas
another important contribution of the Anglo-Saxon period. During this period, the
majority of the population lived in small villages. Each village formed a township and
was a unit of local government. The local government machinery consisted of a town
assembly with certain electiveofficers.

 Norman Period (1066-1154): The Norman conquest of England in 1066 marked a

new development in the growth of the British Constitution. The major development of
the Norman period was the growth in the royal power. The king ruled with the help of
the Great Council or Magnum Concilium – a body consisting of royal officers, church
dignitariesandotherleadingmenofthekingdom.Tohelpthekingcarryonthe
 12

government during the interval when the Great Council was not in session, another
smallbodycalledCuriaRegisorLittleCouncilemergedoutoftheformer.TheBritish
Parliament arose out of the plenary sessions of the Great Council. Likewise the Privy
Council(andtheCabinet),theExchequer(treasury)andtheHighCourtofJusticegrew out of
theCuria.

 Angevin or Plantagenet Period (1154-1485):The political institutions establishedby

William, were revived by Henry II who founded the Plantagenet dynasty. During the
Plantagenetperiod,thepowersoftheParliamentincreased.In1341,theParliamentgot
KingEdwardItoagreethefollowingmatters:

(a) TheKingwillnotlevyanytaxwithouttheapprovaloftheParliament
(b) The Parliament may appoint a Commissioner to audit the accounts
(c) The Ministers will be appointed by the Parliament
(d) TheMinisterswillresignbeforethecommencementofthesessionandreplytoany
chargeleveled against them.
The Parliament also acquired the right to dethrone a King. As a matter of fact, in 1327,
Edward II was made to leave the throne.

 TudorPeriod (1485-1603):
Theperiodfrom1485to1603isknownastheTudorperiod.Theconstitutionalhistory of this
period is the “history of consolidation of the governmental system.” The Tudor
monarchs concentrated wide powers in their hands and thereby strengthened the
influence of Kingship. Thus, Parliament, though it survived, did not place serious
obstacles in the way of royal despotism. However, Queen Elizabeth(1558-1603) did
consult the Parliament frequently and accepted its judgment on many important
occasions.

 StuartPeriod(1603-1714):
After the death of Elizabeth, the throne of England passed to her cousin James I(1566-
1625). However, he soon came into conflict with the Parliament. This was because he
believed in the divine right of Kings and laid undue stress upon the royal powers and
prerogatives. During the reign of Charles I(1625-1649), the conflict between the King
and the Parliament developed into a civil war. Charles I was put on trial and executed.
The Kingship and the House of Lords were abolished. The Parliament formally
 13

proclaimed England a “Commonwealth” or Republic in 1649. A written Constitution,

known as the “Instrument of Government”, was adopted and Oliver Cromwell(1653-
1658) was named Lord Protector. However the Protector ran into trouble with the
ParliamentandhisnewConstitutionfailed.AfterthedeathofCromwell,monarchywas
restored in England with the crowning of Charles II, the third Stuart. He tried to make
acompromisebetweentheroyalauthorityandparliamentarysupremacy.However,his
successor, James II, soon after this ascension to the throne, quarrelled with Parliament
over the right to exercise his right to suspend the operation of certain laws and tried to
rule arbitrarily. Ultimately, the conflict between the King and the Parliament led to the
“Glorious Revolution” of 1688 which saw the overthrowing of King James II(1685-
1688).
 Hanover Period (1714-1837):The Glorious Revolution of 1688 prepared the ground
for redefining the powers of the King and the Parliament. In February 1689, duringthe
reign of the Hanover dynasty, the Parliament passed the Bill of Rights which is one of
the most important documents in English constitutional history. It proclaimed the
legislative supremacy of Parliament and restricted the powers of the Monarch. The
Monarch could neither veto any particular law passed by Parliament nor delay its
enforcement. He could no longer levy or raise any tax or make royal appointments or
maintain a standing army during peacetime without the approval of theParliament.

The events of 1688-89 established the outlines of the English Constitution. Britain became a
constitutional monarchy. Parliament established its supremacy over the actual powers of the
Monarchy. Till date, this basic structure of the British constitutional system remains intact.
 14

Chapter 3 - Analytical study of the Salient features of the

BritishConstitution

Mother of all the Constitution:

British constitution is an inspiration to most of the constitution of the world. It is the oldest
constitution of the world, that is why it is rightly termed as Mother of all Constitutions.

Organic & Evolutionary Growth:

BritishConstitutionistheresultofmorethanfifteencenturiesanditisstillgrowing.Itisofan
evolutionary growth. It would be very precise to call it a child of wisdom and chance. It has
grown gradually and no fixed time or a fixed number of people createdit.

Non-codified:
Thisisthemostimportantandmostdistinguishingfeatureofit.ItisbasedonConventionsand
Customs that have been prevailing from a long time in UK. Such unwritten sources form the
major part of theconstitution.
There are many Acts, Treaties which are in written form and they make it partly written and
even then Non-codified. These were also gradually added and adopted. The first written piece
being “Magna Carta 1215”, “Bill of Rights 1689”, “Parliamentary Acts of 1911 & 1949”
and so many others.

Difference Between Theory andPractice

ThisisanothersignificantfeatureofBritishConstitution.TheorystatesthatnoLawiseffective
without the Assent of Queen, while in practice, Queen must sign all the bills presented to her.
According toOgg:
“The Government in UK is in ultimate theory an absolute Monarchy, in form a limited
constitutional Monarchy and in actual character a Democratic Republic.”

TheKingintheoryhasallthepowersandcanexercisethembutinrealityheisameresignatory figure.
He works on the advice of Prime Minister. As Walter Bagehotquotes,
“The British Queen reigns but does not rule.”
 15

Unreality:
Apart disparity between theory and practice, there is also an element of ‘unreality’. Things are
not what they look like. There exists a great divergence in its theory.

Nature ofConventions:
ConventionsaredeeplyrootedintheBritishConstitution.IfanyonewantstoknowtheBritish
Constitution,muststudytheconventionscarefully.Therearemanyconventionswhichareonly
known to the Cabinet, Judiciary and Parliament. These form the excessive unwritten part and
being an important feature are also a major source of Constitution.
E.g.
1. Prime Minister is chosen from House ofCommons.
2. QueenmustgiveherassenttoallthebillspassedbyParliament.
3. House of Lords benches are red, while House of commons benches areGreen.

Flexibility of Constitution:
Thoughtheconstitutionisnotinapropercodifiedform,ithasagreat adaptabilitycharacter.It
isveryeasytoamendandmakenewlaws. Itrequiresasimplemajoritytopassanamendment.
Regardless of its flexibility, there have been a very few changes made tilldate.

Unitary State:
It is called a Unitary state because there are no units in Britain. All powers are concentrated
into one Single Central Authority.

Bicameralism:
Itliterallymeansdividedintotwoparts.BritishLegislativeauthority,theParliamentisdivided as
follows:
Houseof Lords
House ofCommons

House ofLords:
It consists of 26 Bishops and Archbishops of Church of England called as ‘Spiritual Peers;.
There are 92 Hereditary Peers, 1 Irish Peer, 16 Scottish Peers and several hundred Life Peers.
These are nominated by the Crown on the advice of PM.
 16

House ofCommons:
Itconsistsof650memberselectedbycitizensofBritain.Thishouseismorepowerfulthanthe House
of Lords. Money bills can only originate from House of Commons. PM is alsoselected from
House ofCommons.

Sovereignty of Parliament:
BritishParliamentisverypowerfulandSupreme.Followingarethemajorpointsthatdescribe it and
clarifyits character:
1. There is no Law which British Parliament cannot make or undo.
2. No Court can challenge the acts or laws passed by the parliament.
3. It rules the monarch and can decide its fortune and acts.
4. It can prohibit the King to marry a woman of his choice.
5. It can change the hereditary rule of throne by just one simple act.
6. Itcanabolishmonarchy,abolishHouseofLordsanddistributePowerstoitsCitizens.
7. It can do anything, except make a man a woman andconversely.

Rule of Law:
ItissaidthatLawisaboveeveryoneandappliestoeverybody.Itisaveryfundamentalconcept
havingfollowing aspects:

Legality: All state actions must be authorized. Laws should not be arbitrary.
Certainty: Laws should be clear, certain and predictable.
Consistency: The Laws should be applied equally to all, no one is above the Law.
Accountability: Laws are necessary to provide a standard to measure the action of the state.
Due Process and Access to Justice: No one should be punished
without a trial. It must be a fair trial and held before an independent and impartial tribunal.
This can be viewed by the various Acts of Parliament, judicial decisions and by virtue of
commonlaw.

Merger of Powers:
UKisagoodexampleofmergerofpowers.Therearethreepillarsofitsgovernment.
Executive:ItisthebodywhichexecutesLaws,proposesandenforcesthem.Itcomprisesof
 17

the Monarch, Prime Minister.

Legislative: It is the body which makes or amends Law.
Judiciary: It interprets Laws.
In Britain, Executive and Legislative are fused into one and another forming “Cabinet”.
Before 2009, UK could be seen as a complete merger of powers. Now Supreme Court is also
established separately in UK. Earlier, Executive the Crown & PM, The Judiciary and the
Legislative bodies were combined together in Westminister, Uk.

Blended Constitution:
This is a very unique feature of the British Constitution. It is a mixture of Monarchy,
Aristocracy and Democracy.
Monarchy: Due to existence of Crown.
Aristocracy: Due to existence of Houseof Lords.
Democracy: Due to existence of House of Commons.

Conservative Nature:
The long driven conventions are a proof of their conservative nature. This has made their
Constitution even stronger.

Political Parties:
There are three political parties in Britain. Labour, Conservatives and the Liberal-Democrats.
Conservatives and Liberal-Democrats have together formed a coalition government currently.

Rights of Citizen:
Britain has recognized broad liberties to its citizens. These fundamental Rights are embodied
in Bill of Rights 1689.

Element of Adjust ability:

Adaptability and Adjust ability of the British Political Institutions are remarkable traits of her
political life. Transition from Feudalism to Capitalism, Absolute Monarchy to Constitutional
Monarchy and from a Police State to a Welfare State have been peaceful and Gradual.
 18

CONCLUSION

There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal

onebeingthatinlawParliamentissovereigninthesenseofbeingthesupremelegislativebody. Since
there is no documentary constitution containing laws that are fundamental in status and
superior to ordinary Acts of Parliament, the courts may only interpret parliamentary statutes.
They may not overrule or declare them invalid for being contrary to the constitution and
‘unconstitutional’. So, too, there are no entrenched procedures (such as a special power of the
House of Lords, or the requirement of a referendum) by which the unwritten constitution may
beamended.

Another characteristic of the unwritten constitution is the special significance of political

customs known as ‘conventions’, which oil the wheels of the relationship between the ancient
institutions of state. These are unwritten rules of constitutional practice, vital to our politics,
the workings of government, but not committed into law or any written form at all. The very
existence of the office of Prime Minister, our head of government, is purely conventional. So
is the rule upon which he or she is appointed, being whoever commands the confidence of the
HouseofCommons(themajoritypartyleader,orheadofacoalitionofparties).TheMonarchy is one
of the three components of Parliament (shorthand for the Queen-in-Parliament) along with
Commons and Lords. In legal theory, the Queen has absolute and judicially unchallengeable
power to refuse her assent to a Bill passed by the two Houses ofParliament.

The question then arises in this 800th anniversary year — should the UK now take steps to
codify all its laws, rules and conventions governing the government of the country into one
comprehensive document, ‘a new Magna Carta’? The case for a written UK constitution has
been debated at our universities and by politicians of all parties for several decades and has
beenthesubjectofaHouseofCommonscommitteeinquiryduringthe2010–15Parliament.If a
written constitution for the future is to be prepared, it must be one that engages and involves
everyone, especially young people, and not simply legal experts and parliamentarians. Some
ofthemystiqueandcharmofourancientconstitutionmightbelostintheprocess,butawritten
constitutioncouldbringgovernmentandthegovernedclosertogether,aboveallbymakingthe rules
by which our political democracy operates more accessible and intelligible toall.
 19

Bibliography and References

 Dhamija, Dr. Ashok (2007). Need to Amend a Constitution and Doctrine of Basic
Features. Wadhwa andCompany.
 http://www.academia.edu/6611860/Salient_Features_of_British_Constitution

 http://www.kkhsou.in/main/polscience/historical_background.html

 http://www.legallyindia.com/Constitution_of_Britian

 http://www.universityofcalicut.info/syl/ComplementaryCourseBritianConstitutionI

 Madabhushi Sridhar , Evolution and Philosophy behind the British Constitution

available at :http://www.hrdiap.gov.in/87fc/images11/4.pdf

 Ducan Watts , British Government and Politics: A ComparativeGuide

 Constitutions of the World (Set of 2 Volumes) Hardcover – 25 Aug 2017,by M V

Pylee(Author)