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The Nature and Characteristics of the Constitution of the United Kingdom

  • DONG-A LAW REVIEW
  • 2010, (48), pp.61-103
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

이병규 1

1동아대학교

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ABSTRACT

This study aims to examine the nature and characteristics of the Constitution of the United Kingdom(UK), a model of an unwritten constitution, in terms of constitutional diversity and to identify the value of the British Constitution embedded in its nature and characteristics. In addition, it explores the current situation of the Constitution of the UK challenged by recent changes in the constitutional environment at home or abroad. First of all, this research started with a typical question about whether the United Kingdom retains its constitution or not. The characteristics of the Constitution of the UK which exists with statutes, conventions, court judgements and so on was investigated without the narrow-minded, written constitution-oriented way of thinking that there might be or might not be the Constitution in the United Kingdom. Highlighted was the nature of the Constitution of the UK as a political constitution which has no codified one. The British Constitution has a power structure totally different from the strict principle of separation of powers, an essential feature of a constitution based on constitutionalism. In the UK, the legislative and the executive, which are interrelated in their establishment and existence, seek universal harmony and cooperation. Therefore, it is not easy to balance the principle of separation of powers and that of parliamentary sovereignty in the UK. The principle of separation of powers in the UK is weak to the extent that it just can exercise influence on judicial independence. Another notable characteristic of the British Constitution is the role that conventions play in the Constitution. Conventions are the essential source of such a political constitution as the British Constitution. In this sense, the UK puts priority on self-regulation of the government and politicians rather than on the legal system of checks and balances which can be formally enforceable in a court of law, one of the prominent features of today's codified liberal constitution. Such conventions are the most important in the British Constitution and play a role of restricting legal authority of a monarch and regulating the relation between the Parliament and the government. In the UK, freedoms and rights of the people are considered residual. They are the remaining rights people can enjoy when the statute law or common law are not applicable. Hence, the target of legal dispute is not to what extent the scope of freedoms can be extended but the scope of power under legislations or common law for restricting the freedoms. The British Constitution with the traditional nature and characteristics is recently facing demands for changes. The constitution initiates sweeping reforms of the established constitutional composition; from the reform of the House of Lord with the abolition of hereditary peerage and reinforcement of judiciary control over the legislative power and the executive power by means of the enactment of the Human Rights Act in 1998, to the reinforcement of direct democracy through referendums and residential votes as well as autonomy that transcends the concept of local autonomy by establishing independent parliaments for each race. As part of such effort, the Constitutional Reform Act was enacted in 2005, leading to open a new era of the independent Supreme Court by ending the House of Lords Supreme Court last year. These changes might be just the beginning or come to a close now. However, the history of the British Constitution clearly shows that the Constitution is accustomed to compensating and modifying established systems rather than adopting new ones even though it looks inconvenient and less refined. The British Constitution that has sustained the UK, a mother land of constitutionalism, includes the nature and value that today’s liberal constitution is pursuing and the UK maintains its constitutional order as well as any other country with a written constitution. In this sense, the Constitution of the UK is noteworthy and we can discover the true value of the British Constitution if we examine it in terms of constitutional diversity and free ourselves from a narrow and written constitution-oriented viewpoint. Only then will constructive discussion about the British Constitution possible.

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