Chapter 2 - The UK constitution: an introduction

VIDEO TRANSCRIPT
Welcome to the short audio lecture for Chapter Two of the Public Law Subject Guide.
This chapter introduces the unique British constitution. As you may already know, a constitution
lays out the structure and basic functions of the state’s governing agencies and the relationship
between those branches of government and the citizens. A useful definition to bear in mind is
that of Wheare who described a constitution as ‘the whole system of government of a country,
the collection of rules which establish and regulate or govern the government’.
As you will soon learn, the British constitution or Constitution of the United Kingdom is unusual
in that it does not exist as one single document or book.
Learning objectives for Chapter 2. At the end of this lecture, you should be able to identify some
of the key features of the British Constitution. Be able to identify the main sources of the British
Constitution. And have a preliminary understanding of the advantages and disadvantages of the
idea of codification.
You will see on the slide, images of three constitutions in a codified form, from left to right, the
American constitution, the French Constitution and the Constitution of India. The British
constitution does not exist in this form rather it is uncodified and to be found in a variety of
sources, both legal and non-legal. In this chapter and the recommended readings, you will look
at constitutional conventions, considering how they are defined, identified and enforced along
with other sources of the constitution.
Unique features. The uncodified nature of the British constitution also means that it is further
distinct from most other countries in that it does not have a specific constitutional court. Indeed,
the role of judges under a codified constitution is an important feature of which you ought to be
aware. Where a codified constitution exists the supreme or constitutional court has a particular
role in judging the constitutionality of legislation and other measures and governmental actions
by reference to the constitution and can strike down or nullify measure which are deemed
‘unconstitutional’. In the United Kingdom the judges do not have this power. Within the British
constitution the meaning of ‘unconstitutional’ is different – it means simply ‘wrong’ rather than
unlawful.
The British constitution is often described as flexible rather than rigid – this is not to suggest that
is lacks longevity and permanence but refers to the ease by which the constitution can be
amended or changed. Generally, a codified constitution will require amendment via a special
procedure, such as a super majority in the Parliament or the holding of a referendum. In the
United Kingdom by contrast, constitutional change can be brought about in a variety of ways,
some evolutionary, such as a gradual shift in a constitutional convention or others very quickly,
such a change to legislation governing a matter of constitutional significance. In relation to the
latter a simple majority (that is 51%) of the legislature, the Parliament, is all that is required.
There are differing views on whether or not this degree of flexibility is desirable.

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Sources of the Constitution. As I mentioned, some of the sources of the constitution are legal,
that is law, and others might be described as non-legal sources or rules. Legal sources of the
constitution include statutes, common law or judge-made law, prerogative powers and
international law.
Constitutional conventions fall into the second category along with general customs, habits and
practices (which you will want to distinguish from constitutional conventions); the work of
constitutional writers and authorities (for example, Dicey and Jennings) which constitute
authoritative opinions and can help to identify and to understand the constitution; and
constitutional principles (such as Parliamentary Sovereignty, the Partial Separation of Powers
and the Rule of Law).
Conventions are an interesting and important part of the constitution and there are number of
definitions which you might draw upon, for example, in the first edition of the Government’s
Cabinet Manual constitutional conventions were described as “rules of constitutional practice
that are regarded as binding in operation but not in law”. You will need to be familiar with some
examples of conventions and how they function in practice. Some particularly interesting
examples of conventions are those which operate in relation to the prerogative powers. The
prerogative powers or royal prerogative are of course legal powers and their exercise is
sometimes firmly governed or controlled by convention.
In later chapters you will learn more about these various principles and sources of law. For now
though, in addition to becoming familiar with the nature and sources of the British constitution
the other aspect of the syllabus covered in this chapter which is of particular importance is the
question of whether or not the British constitution ought to be codified and it is to this we now
turn.
Constitutional Codification. Looking at whether or not it is desirable to codify the British
constitution. In order to understand and evaluate this issue you need a solid understanding of
what differences codification would bring about. Through your reading you will become more
familiar with the advantages and disadvantages of possible codification. Flexibility is often
described as a virtue of our uncodified constitution and whilst it is certainly true that we are not
restrained by the requirements of special procedures for constitutional amendment, such as a
referendum or a super majority, it is not entirely accurate to suggest that our constitution does
not have firmly embedded values and elements. There is also the pivotal position of
Parliamentary Sovereignty in our constitutional structure. An Act of Parliament is the highest
form of law in English law as distinct from a country with a codified constitution in which the
constitution itself is a higher order law. Further discussion on this topic involves consideration of
how detailed a constitution should be – is a framework document preferable or a detailed
version? There is also the widely accepted idea that most constitutions come into being after or
as a result of some event – a so-called ‘constitutional moment’ such as a revolution, civil war,
independence and so on. By contrast the development of the British constitution has often
been described as evolutionary and gradual. This must be balanced with an awareness that the
past 25 years have seen a huge amount of constitutional change – both in terms of legislation
passed, for example, the Human Rights Act 1998, the Constitutional Reform Act 2005 and the
House of Lords Reform Act 2014 and also structurally with devolution to Scotland, Wales and
Northern Ireland and most recently as a result of Brexit (the United Kingdom’s departure from
the European Union).
I’d like to end this short lecture by reference to a number of key components of the British
Constitution. These were described as the basic tenets of the constitution by the House of Lords’
Constitution Committee in 2001. You will see that some elements have changed somewhat
even since then, namely membership of the European Union and potentially also the clarity of

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the union state. These principles set out by the Lords’ Constitution Committee were:
Sovereignty of the Crown in Parliament, The Rule of Law, encompassing the rights of the
individual, The Union State, Representative Government, Membership of the Commonwealth,
the European Union and other international organisations

And I think just looking at this from 20 years ago, you can see the evolutionary nature, the
development of our Constitution. And it’s just worth bearing in mind that this is not a new
development, we have just seen an acceleration in the last 25 to 30 years.

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