The constitution and the constitutional order

The question of whether the United Kingdom's ‘unwritten constitution’ (or, as pedants insist, ‘uncodified constitution’) is really a constitution at all is ultimately a semantic one. The word constitution means different things to different people. There may be no need to seek final resolution to this semantic dispute, so long as we are clear and consistent about our terms.

One possible definition of a constitution is that suggested by Lord Bolingbroke in 1733: ‘the whole assemblage of laws, institutions, traditions, customs and practices that embody how we are governed’. Anthony King refines this as ‘the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country’. According to this definition, every state has some sort of constitution, because even the most absolutist state needs laws, rules and routines that together enable its normal operation.

This definition is, however, inadequate. It might describe what has happened, or even what usually happens, but such a definition of the word cannot allow the constitution to say much, if anything, about what will or should happen. It is impossible, under such a definition, for any sustained course of action to be unconstitutional. If something else happens, contrary to what ‘the constitution’ would have predicted, then the constitution is not violated, but changed. The constitution, thus defined, has no normative value, no call upon our loyalties or affections, no authority over and above that of the laws in force at any moment in time.

A second definition looks at the constitution – specifically the British constitution – in terms of the Hanoverian settlement, as altered by subsequent statutes and conventions. If we define the constitution in these terms, it might at least provide some normative foundation for what is, and is not, constitutionally acceptable. The system can mutate, but only to the extent that the various actors – the monarch, the ministers, the House of Commons, the House of Lords, the courts – accept such mutations. If one institution tries to break the bargain in a unilateral way, they might overstep the mark, and do something that the others regard as unacceptable and unconstitutional.