Law Sessions With Jennifer Housen’s Podcast

Constitutional Frameworks: Does Britain Have One After All?

Subscriber Episode • • Jennifer Housen • Season 1 • Episode 2

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We explore the concept of constitutions, examining the distinction between narrow definitions (codified documents) and broader interpretations (frameworks for state governance and citizen rights). The UK doesn't have a single constitutional document but possesses a complex body of rules regulating state institutions and citizen relationships.

• Constitutions can be defined narrowly (single codified document) or broadly (framework for state-citizen relations)
• Jamaica's 1962 constitution demonstrates what typically appears in a codified constitution
• Academic Colin Munro argues "every state has a constitution in the broader sense"
• The UK has an uncodified rather than "unwritten" constitution
• Britain's constitutional rules appear in statutes, case law, non-legal rules and constitutional principles
• The UK lacks a codified constitution due to centuries of stable, incremental development without revolution
• Constitutional characteristics include codified vs uncodified, unitary vs federal, monarchical vs republican
• Westminster's fused power model contrasts with strict separation of powers in other systems
• The UK executive being drawn from the legislature creates fewer restraints on government power


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to the second segment of this law session on public law and in particular, we're exploring constitution and what the characteristics of a constitution are, and certainly we will also examine the sources of the UK constitution. Now, before the break, we introduced how and what the basis is as it relates to a constitution. We considered the narrow, we considered the broad and I opened the last segment with a question, which was the United Kingdom does not have a constitution discussed. Now, before the break, I said when we look at having a constitution in a narrow sense, it tends to be where it is one of the essential steps towards good governance. Now I said to you, when we come back, we will look at some countries, for example, and how their own constitutions set out what it is there for, as it were. Now I want to first of all explore the Jamaican constitution. Now, the Jamaican constitution and all of these tend to be available freely online and something you can look at, the Jamaican Constitution has in its explanatory notes, which is the explanatory note of the Jamaica Constitution Ordin Council in 1962, which was when Jamaica got independence. The Jamaican Constitution took effect on the day of independence, the 1st of August 1962, and what we see in the explanatory notes is a statement that said this order makes provision for a new constitution for Jamaica with effect from that date, including provision for the executive government, the legislature, the judicature and the public service. Now, the constitution also contains provisions relating to citizenship of Jamaica and fundamental rights and freedoms of the individual freedoms of the individual. So the explanatory notes actually tell you what exactly the constitution provides for. Now, that type of definition and description will generally be found in the vast majority of narrow meaning constitutions. So countries which have a codified constitution will generally have a similar statement, because that type of note typifies what is traditionally represented in a constitution.

Speaker 1:

So the question does the United Kingdom have a constitution? Well, given the more restricted meaning, as is often argued, then no, united Kingdom has no constitution. But according to the academic Colin Munro in his book Public Law, he says every state has a constitution in the broader sense of that term Every state. And that makes sense, because what is the broad term definition? The broad term says that a constitution is a framework for how the organs of the state interact and how the citizens' rights are protected. So it's not about the single document. So the idea then is that a constitution in the broader sense of that term, every state has one, by which is meant the body of rules and arrangements relating to the government of the country and its people, and that is in what is a constitution. That? Colin Munro, the 1983 public law from Colin Munro.

Speaker 1:

Now again, if we take another academic, hillier Barnett, and consider whether or not the United Kingdom has a constitution, well, in the book Constitutional Law it says every organization, whether it is a trade union, whether it is a university, whether it is a state, which is for our purposes, every organization has a constitution, and by that it means the basic framework of rules which regulates the institution and its members. So again, does it have a constitution? Well, the UK, in fact, on that broad definition, arguably has a constitution. It does not have a single formal, identifiable document that is dubbed a constitution, like other states such as South Africa or Nigeria or Jamaica or Trinidad, but what it does have is the body of rules. The question then to ask is does the absence of such a document, is that enough for us to conclude that the UK does not have a constitution? Well, the incontestable fact, in my view, is, whereas in Britain there is no single definitive document which contains the constitution. There is a set of rules which regulates the interaction between the different organs of the state and also provisions made for the relationship between the state and the people of the country. The point for consideration, therefore, for us is where are these rules to be found? Well, when you consider the broader meaning, as I say, it has a constitution. As I say, it has a constitution. The rules are identified and there are also the procedures relating to the regulation of the principal institutions of the states, as well as the citizens' relationships.

Speaker 1:

But saying that the UK has no constitution may be too broad and sweeping a statement. Even saying it does not have a written constitution is incorrect, because a lot of what regulates the broad meaning is actually written in statutes and so on. So try and keep away from using the term unwritten, because the fact is that Britain does not have an unwritten constitution. It has an uncodified, because it is by no means unwritten, so uncodified as in a single document. So although it has not been defined in a single basic constitutional document, it certainly can be found. The rules, those are, can be found in various places.

Speaker 1:

Now, it relies much on statutes. It relies a lot on reported case law, it relies a lot on non-legal rules and it relies a lot on constitutional principles. Well, why does it not have a codified constitution? Good question, because if it is that this is what the average person can touch, can feel, can see where these are my rights, why is it not a codified constitution? Well, do consider the background to the UK itself. In fact, you might even consider that most of the countries that you can name that have a codified constitution. Actually, the radical change they underwent was radical change from breaking away from the UK. But the point, of course, is that when you look at the UK, by and large, the UK itself has been stable for centuries. The UK has remained free of the kind of revolutionary spirit that commonly precedes the formation of a state. As a result, the country's democracy has been reformed incrementally over centuries, rather than in the one big bang, which is usually the way that A codified constitution comes on board.

Speaker 1:

Now, when you look at the traditional characteristics of a constitution, you need to consider the UK in contrast, for example, to other states, and it's one of the main ones that I would suggest you draw the contrast with is, of course, the USA. Of course the USA. So you can look at the written versus the unwritten or rather the codified versus the uncodified. You also consider the characteristic of the UK's constitution by nature of its unitary lawmaking approach, which is that there is one ultimate lawmaking power over all constituent national parts. This type of unitary approach characteristic of the UK constitution needs to be contrasted with the federal for example in the UK, the federal approach, where power is diffused rather than concentrated in any one body or place. Now, when you look at the constitution generally, for example when you look at a federal framework like the USA, you tend to find that there is state law and then, course, there is federal law. So you get two I wouldn't necessarily say competing, but you have two structures which allow for lawmaking.

Speaker 1:

The other type of contrast is to look at the characteristics of a constitution as it relates to being supreme, meaning that it is not subject to any external superior force or subordinate, meaning it is drafted and introduced in a country by an external sovereign power and may be amended or repealed by that external power, as opposed to a republic where you have a head of state, an elected president, or a monarchical head of state, traditionally a royal, who is largely symbolic and ceremonial, and that symbolic and ceremonial framework in terms of the monarchy will be where there is little actual power in the monarchy. Actual power in the monarchy Now, when you also look at a contrast between flexible constitutions, so constitutions which may be altered at will and that will generally is parliament, as in the UK or a rigid constitution where amendment is difficult because it requires some kind of elaborate and indeed some refer to it as some torturous procedures for change. So, for example, you may need a two-third majority in parliament after several sessions of debates. Now you can also contrast fuse powers, where the lines of demarcation between different arms of the state are unclear, or separation of powers, where there is strict adherence to a principle that executive, legislative and judicial functions are kept independent of each other. Now, those are the contrasts to be made.

Speaker 1:

I'll do a quick review, but what I want you to consider is the characteristics of a constitution are such that you can draw a parallel, and whenever I do this particular era, I want students to imagine, for example, the way that the USA is versus the way that the UK is, because on the one, the USA, you have of course the single document codified. The UK you don't. You have the Republican versus the monarchical. So, in having a quick recap, when you look at the unwritten versus uncodified, it's not compiled in a single document.

Speaker 1:

When you look at monarchical, you have a constitutional monarchy and which it establishes and acknowledges the monarch as the head of state, with the maxim that the queen reigns but she does not rule. There's fused power, but the fused power and the Westminster model is arguably one of the biggest culprits when you consider the doctrine of separation of powers, which we'll obviously no doubt consider Now, in that the executive is drawn from the legislature. Now, the doctrine of separation of powers is not as prominent in the British Constitution as it is elsewhere. Since the government is fused with parliament and virtually every government has a majority, there is no formal restraint on the legislative power of the executive. Now, what we'll do is take a short break and when we come back we'll continue in looking at the differences.