One of the often-forgotten sources of the UK Constitution are works of authority. These are works, that although not legally binding, are often looked at as important reference points for how the constitution should run. So what are some of the key works of authority in the UK Constitution?
There are numerous works of authority and new ones develop every year. However, some of the most famous are:
The English Constitution (1867) by Walter Bagehot
In English Constitution was written by Victorian constitutional scholar Walter Bagehot. The book explores a wide range of constitutional issues, but is particularly famous for its outlining of the principles of constitutional monarchy. Among the observations made by Bagehot were that:
– There is a difference between them ‘dignified parts’ of the constitution and the ‘efficient parts’. Bagehot said that the monarchy, and the tradition that surrounded it, were the dignified parts but the mechanisms by which government was run were the efficient part.
– He summed up the role of the monarch in government by saying that they had the “right to be consulted, the right to encourage and the right to warn”
– He said that although the House of Lords played an important constitutional role it must “yield to the people”, by acquiescing to the elected House of Commons when required.
– He said that the fusion of powers was the ‘efficient secret’ of the UK constitution.
Bagehot’s work was seen as seminal and became a guiding constitutional work for generations.
An Introduction to the Study of the Law of the Constitution (1885) by A.V Dicey
Albert Venn Dicey was a Victorian lawyer who specialised in constitutional issues. He wrote the Study of the Law of the Constitution in 1885 which quickly became a hugely influential work. Within it, it Dicey became the first scholar to codify the concept of the Rule of Law which he said was, alongside parliamentary sovereignty, one of the “twin pillars” of the UK constitution. Within the nook he also explained the concept of parliamentary sovereignty in detail, but said it could simply summarised as Parliament can “make or unmake any law”.
A Treatise on the Law, Privileges and Usage of Parliament (known as ‘Parliamentary Practice’) by Erskine May
Erskine May was Clerk of the House of Commons from 1871 to 1886. The Clerk of the House of Commons is the most senior unelected position in Parliament and is the senior advisor on constitutional issues to Members of Parliament. The book was first written in 1884, but has since been republished 23 times, with the 24th edition being published on the 30th June 2011.
It is widely considered to be the bible of parliamentary procedure and is the first port of call for parliamentarians that are trying to understand issues in Parliament. The book covers most conceivable issues that might arise in Parliament and is often considered to be the most important of all works of authority on the British constitution.
The Rule of Law by Thomas Bingham
The Rule of Law was written in 2010 by Thomas Bingham, a former Senior Law Lord. Within the book, Bingham dedicates each chapter to what he considers to be the fundamental elements of the Rule of Law. The chapters are:
- The accessibility of the law
2. Law not discretion
3. Equality before the Law
4. The Exercise of Power
5. Human Rights
6. Dispute Resolution
7. A Fair Trial
8. The Rule of Law in the International Legal Order
The importance of Bingham’s work is that it builds on Dicey’s codification of the Rule of Law but gives due diligence to the fact that concepts of law have changed since the 19th century, when, for example, the concept of universal human rights was not popularised.
None of these works are legally binding, instead, they form reference points for constitutional actors, scholars and lawyers. As Tom Bingham’s Rule of Law shows, new authorities will continue to emerge in the future that will help with the understanding of Britain’s uncodified constitution.
Works of Authority are not the most important source of the Constitution; however, they are the one that is most easily overlooked.