Tarun Khaitan: The ‘constitution’ as a Statutory Term

Constitution. A word that readers of this blog use and encounter frequently in academic, judicial and political discourse. It is one thing, however, for academics, politicians, or even judges to invoke ‘the constitution’, quite another for Parliament to do so in legislation. As that (other) great jurist Salmond once explained, unlike judgments, ‘one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed—the litera scripta—constitute part of the law itself.’ To use Salmond’s metaphor, ‘Case law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.’ For this reason, words are usually employed in statutes with great care. On their precise meaning and scope—as determined by judicial interpretation—hang significant legal rights and duties.

With able research assistance from Mr Tom Pascoe who helped filter out hundreds of other uses, I have found the following statutory references to the term ‘constitution’ or its cognates which use the term to signify the British constitution (or the constitutions of England or Scotland, before the political union of these countries).

1. In the short title of the statute:

      – Constitutional Reform Act 2005

      – Constitutional Reform and Governance Act 2010

2. In the Preamble/Introductory Text:

            – Coronation Oath Act 1688

            – Claim of Right Act 1689 [enacted by the Scottish Parliament]

            – Heritable Jurisdictions (Scotland) Act 1746

            – Statute of Westminster 1931

3. In Substantive Sections:

            – Criminal Libel Act 1819 [s 1]

            – Internationally Protected Persons Act 1978 [s 1(5)(a)]

            – Fire and Rescue Services Act 2004 [s 5D(2)]

            – Constitutional Reform Act 2005 [s 1]

            – Legislative and Regulatory Reform Act 2006 [s 3(2)(f)]

            – Legal Services Act 2007 [s 1(1)]

            – Localism Act 2011 [s 6(2)]

4. In Schedules:

            – Scotland Act 1998 [Schedule 5, Part 1, Para 1]

            – Equality Act 2010 [Schedule 3, Part 1]

            – Appropriation Act 2011 [Schedule 2, Part 2, Para 1] – Similar references are found in almost every Appropriation Act since 1996.

Thus, there are at least fifteen statutes which use the term in the relevant sense. In the seventeen years since 1996, at least ten statutes making explicit references to the British constitution have entered the statute books (counting the annual Appropriation Acts only once). Compare this to a mere five statutory references in the three hundred and eight years between 1689 and 1996. It seems, therefore, that the rate at which the legislature is using the term in statutes since 1996 is about thirty-six times the rate at which it did so between 1689 and 1996!

An important implication for this burgeoning usage is that, in the absence of any statutory definition and little guidance, it falls upon judges to determine the meaning and scope of what the constitution of the UK is. Notice that at least some of these statutes, while making references to the constitution, do not refer to the legal aspects of the constitution alone. So, in the appropriate case, judges may be called upon to determine what is the scope of the political constitution. What’s more, at least under the Legislative and Regulatory Reform Act, the Localism Act and the Fire and Rescue Services Act, they will not only determine the scope of the (political and legal) constitution, but also protect it against Executive legislation. Readers who are interested in a classification of these statutory usages and further details on these and other significant implications of such usage may be interested in the full article here.

Finally, if anyone can point to a statute that uses the term in the relevant sense and is not on this list, I will be very grateful.

Tarun Khaitan is a Fellow and Tutor in Law, Wadham College, Oxford

Suggested citation: T. Khaitan, ‘The ‘constitution’ as a Statutory Term’   UK Const. L. Blog (7th October 2012) (available at http://ukconstitutionallaw.org