‘The British constitution, contrary to popular description, is not “unwritten” – a good part of it is

written – but it is uncodified.’ (House of Lords Constitution Committee, 2002).

Law cases, reports and other references the examiners would expect you to use Focus should be on
the UK’s variety of constitutional sources, including conventions, prerogative powers, international
treaties, etc. that must be contrasted with the concept of a documentary constitution that stems from
the revolutionary period in 18th/19th centuries in Europe and the USA.

(NOT Completed)

2.1 Defining constitutions In 2001, the House of Lords Select Committee on the Constitution defined the
constitution as:

“the set of laws, rules and practices that create the basic institutions of the state, and its component and
related parts, and stipulate the powers of those institutions and the relationship between different
institutions and between those institutions and the individual.”

If we think further about the notion of a document with special legal sanctity or status, we begin to
understand more clearly what the differences are between a codified and an uncodified constitution. In
states with a codified constitution, there will be a ‘Constitutional’ or ‘Supreme’ Court whose function is
to interpret the constitution and determine the lawfulness of other legislation or governmental actions
by reference to the constitution. The United Kingdom Supreme Court (which will be discussed in later
chapters) does not perform such a function. The constitution itself will form what is often referred to as
a ‘higher order law’; it will be the highest law in that state.

Thus, where a codified constitution exists it will be the role of the judges to interpret it. Within the UK
constitution, this would raise additional complications, particularly in relation to the fundamental
doctrine of parliamentary sovereignty

whether a constitution is rigid or flexible. This refers essentially to the ease (or difficulty) with which
amendments might be made to it. The absence of codification in the British constitution means that
there are no special procedures to be followed in relation to making constitutional changes.

2.3 Sources of the UK constitution “If a constitution means a written document, then obviously Great
Britain has no constitution. In countries where such a document exists, the word has that meaning. But
the document itself merely sets out rules determining the creation and operation of governmental
institutions, and obviously Great Britain has such institutions and such rules. The phrase ‘British
constitution’ is used to describe those rules.” (Jennings, I. The law and the constitution. (London:
University of London Press, 1959), pp.81 and 82)

It is more accurate to refer to the constitution of the UK as ‘uncodified’ rather than ‘unwritten’ as there
are many important written sources of the UK constitution (that is, although it is ‘uncodified’, much of it
is to be found in written sources). It is worth, therefore, drawing a distinction between ‘written’ and
‘codified’; the latter tends to refer to the bringing together of all the ‘rules’ into a single document.

We can divide the sources of the constitution into legal (which are enforceable in the courts) and non-
legal sources.
In the UK, ‘constitutional’ law is not distinct from ‘other’ law in the way that it is in many countries. In
the words of Turpin and Tomkins, ‘we find constitutional rules mingled with the rest of the law, in
statutes and subordinate legislation, in the common law and decisions of judges’ (Turpin, C. and A.
Tomkins British government and the constitution. (Cambridge: Cambridge University Press, 2011) 7th
edition [ISBN 9780521185110]). This becomes more evident when we look at some legal sources.

2.4: Constitutional conventions are an important source of the constitution and, although such
conventions will exist in all states to a greater or lesser degree, they are arguably of greater significance
in the context of the uncodified British constitution. They are described succinctly in the first edition of
the government’s The Cabinet manual as ‘rules of constitutional practice that are regarded as binding in
operation but not in law’. For Jennings, the constitutional conventions ‘provide the flesh which clothes
the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of
ideas’.

There are several points to note when learning about conventions:

1. They are not laws or legal rules and so cannot be enforced in the courts.

The consequences of breaching a convention are various and not easy to predict. However, any
sanctions which follow or result from a breach will be political rather than legal.

In Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 the UK Supreme Court
clarified that judges ‘are neither the parents nor the guardians of political conventions; they are merely
observers’: while they can ‘recognise the operation of a political convention in the context of deciding a
legal question’, they cannot ‘give legal rulings on its operation or scope, because those matters are
determined within the political world’.

2. Those bound by them (the constitutional actors) feel a sense of obligation to follow the convention –
indeed, it is the obligatory nature of the convention that sets it apart from a mere habit or custom.

Traditionally, conventions were a largely unwritten part of the constitution, but today the majority are
recorded in written form, such as the conventions of ministerial responsibility in the Ministerial Code
and many others in The Cabinet manual.

2.4.1 Identifying constitutional conventions One of the areas in which conventions are particularly well
established is where they govern the exercise of prerogative powers. However, even in these instances
conventions may be of variable clarity, for example, it is firmly established that the monarch should give
their assent to bills passed by both Houses of Parliament but there is less clarity on whether the assent
of Parliament is necessary in order to exercise the prerogative power to engage the armed forces.

Jennings’ tripartite test is often cited as a guide for identifying a convention. His three questions were:
‘first, what are the precedents; secondly, did the actors in the precedents believe that they were bound
by a rule; and thirdly, is there a reason for the rule?’.

It also ought to be borne in mind that ‘conventions are always emerging, crystallising and dissolving, and
it is sometimes questionable whether a convention has been broken or has simply changed’ (Turpin and
Tomkins).
2.5 The question of codification For many years, there has been a lively debate around the issue of
codifying the British constitution. A classic starting point is to consider the supposed advantages and
disadvantages of an uncodified versus a codified constitution. The most obvious is the idea of flexibility,
the relative ease of amendment. The counter argument to this, of course, is that if something can be
very easily amended, then perhaps the protection afforded by it is not as strong as it should be (or could
be if this constitutional protection were entrenched). Other arguments include the accessibility of a
constitution and the awareness of such matters within society.

When thinking about the debate around codification of the British constitution, several practical issues
(in addition to the more ideological views) are also of relevance. Who should (or could) draft a
constitution? What would it include? Would it be a statement of the constitution as it is currently or an
attempt to reform?

The question of the enhanced role played by the judiciary under a codified constitution is of particular
importance. (Remember, it would ultimately be the court that would interpret and thus define the
constitutional text.) Where one’s view falls on this will largely depend upon whether you are a legal or
political constitutionalist.