Law Sessions With Jennifer Housen’s Podcast

Constitutional Law Explained: What Makes the UK System Different from Codified Constitutions?

Subscriber Episode • • Jennifer Housen • Season 1 • Episode 3

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Constitutional frameworks differ significantly across jurisdictions, with the UK's uncodified constitution contrasting sharply with the codified documents found in countries like Jamaica, South Africa, Nigeria, and the United States. Despite common misconceptions, the UK does have a constitution, though its character as unwritten, unitary, supreme, and flexible creates a unique legal framework centered on parliamentary sovereignty.

• Unitary constitutions place power with central government, though the UK has devolved powers to regional bodies
• The West Lothian Question highlights an anomaly where Scottish MPs can vote on English matters in areas devolved to Scotland
• UK Parliament enjoys supremacy as the highest lawmaking authority, unlike countries where constitutions overrule contradictory legislation
• Flexible constitutions like the UK's can be changed through regular Parliamentary processes without special procedures
• Codified constitutions typically contain entrenched provisions declaring themselves supreme and invalidating inconsistent laws
• Key constitutional concepts include entrenchment, supremacy, and citizens' rights and liberties
• Parliamentary supremacy represents the fundamental principle of the UK's constitutional framework


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Speaker 1:

Welcome back to this third segment of Constitutional Law and, in particular, we're looking at public law in the context of what is a constitution.

Speaker 1:

Before the break, we considered the different ways that you would, for example, contrast how different constitutions are considered. Now, if you ever get an exam question in this area, it generally will possibly say exactly what we started off in the first segment with, which is that the UK doesn't have a constitution. In the first segment with which is that the UK doesn't have a constitution, and you would, of course, have to go through the explanation of this broader, narrow category. Equally, it may be that you have to give some idea as to the different approaches which are taken and certainly, when you look at the characteristics that are required, you will see that they are different. Now, before the break, we started off looking at a summary based on the contrast of the different characteristics that have been raised. Now we want to start back here, looking at, for example, unitary. When you consider the unitary characteristic of a constitution, this is where power lies with a central government. Now, in the UK, of course, power lies with Westminster. Now the United Kingdom is a single legal entity, as it were, and Parliament may, of course, delegate power to local authorities and to other governmental bodies. What we have seen, certainly since 1998, is a devolution of power to certain regional type governments and indeed, as has been raised before, you will see that we see Scotland going down the path of a referendum. So the idea is that when you consider unitary government versus federal, of course it is where Westminster controls. That said, though, I would say to you to look for a particular concept of the West Lothian question, the West Lothian question. Now, this is interesting because what you have is, for example, a Scottish MP may very well be able to vote on and deal with something at Westminster in a particular area where, for example, the power in relation to that area has been devolved in his own area. So you may have a Scottish MP, for example, who's dealing with education, but if it is that education is a devolved power given to the Scottish Parliament, it does create a little bit of an anomaly, where you then have the Scottish MP being able to vote on English education matters, but because education is devolved, it means that it is not something that an English MP would consider, for example. So look at the West Lothian question. It was raised by a Scottish MP called Tam Dayal, and it is an interesting bit of reading. And it is an interesting bit of reading. It lets you see how the unitary government arguably works, or not, as the case may be when there are situations involving devolution.

Speaker 1:

Now you can have a supreme or subordinate framework. When you look at the characteristics of a constitution, now in the UK you have supreme Parliament is a supreme lawmaking body. The acts of parliament are the highest source of English law. Now, that is what you would basically consider from a constitutional standpoint. Now, most persons in their own country will have a constitution and the constitution will be the highest legal authority. So even the acts in your country, for example, are subject to the constitution. So if an act or a statute in your country is contrary to the constitution, it may very well be that if it is inconsistent with the Constitution, it can be struck down.

Speaker 1:

Now, when you look at the UK's constitution again, there's the issue that it is flexible. It is easy to effect constitutional reforms, it is adaptable. Why? Because it simply requires an act of parliament to deal with the broad definition of constitution in respect of certain constitutional matters. Constitution in respect of certain constitutional matters. So say, for example, the UK wanted to make the US court its highest court in the land, well, it could pass a law. But let's say, for example, nigeria or Jamaica or Trinidad or any other country decided it wanted to do something similar. Well, you would have to consider whether or not the provision that allows for the highest court in the land within the codified constitution is an entrenched provision and provides for a specific way that that law can be changed or appealed and the like. So it means, of course, that there are definitely benefits to it being flexible, in that it doesn't need to go through a cumbersome process. But, of course, the fact that it is so easy to change now no doubt now no doubt raises the point of whether or not rights are not properly defined or rights are easily encroached on. Because if my rights are, for example, in the Human Rights Act, come tomorrow, if the Human Rights Act is repealed, then arguably I don't have those kind of rights anymore, whereas when you look at a constitution which is codified, it is not so easy to change.

Speaker 1:

It brings me, therefore, to this that when you consider public law, and certainly constitutional law, there are certain key words that you should know. The first, of course, is entrench. You need to know what an entrenched provision is. It's embedded, it's ingrained, it's established, it's cemented, it's rigid. You need to know what is supremacy. Supremacy looks at the primacy and dominance and certainly in the context of the UK being a part of the EU, it certainly has implications in respect of its membership. So you need to know what is supremacy. Now, citizens' rights and liberties. What are these Now, citizens' rights and liberties?

Speaker 1:

Certainly, in the UK, we see that there are various statutes that provide for various different things. The most well-known and well-worn, of course, is the Human Rights Act, but when you consider, for example, employment and the types of, let's say, discrimination that you would face in, say, getting employment or seeking employment, there are specific legal provisions, specific statutes that deal with those. When you have, for example, your narrow constitution, what is the legal authority of it? Where does it come from? Well, where you have a written constitutional document, it usually represents a form of law and, as I say, it tends to be superior over all other laws. While this idea is usually implied, it is often stated expressly in the text of the constitution itself. So where, for example, let's consider some constitutions, some codified constitutions, and where, for example, the constitution gets its legal authority.

Speaker 1:

The first one I will touch on, of course, I will touch on the Jamaican constitution. Well, in section two of the Jamaican constitution it says subject to the provisions of sections 49 and 50 of this constitution, if any other law is inconsistent with this constitution, this constitution shall prevail and the other law shall, to the extent of the inconsistency, be void. Whenever you see an act or a piece of legislation using the word shall, it means must, and therefore we see that in the Jamaican constitution the issue of inconsistency is provided for. Let's look at South Africa Again. When we look at the South African constitution, and again Section 2, it says this Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid.

Speaker 1:

Now Move on to example three. The Nigerian constitution is the supreme law of that state and under section one, subsection three, it says any other legislation inconsistent with its provisions is void to the extent of its inconsistency. To the extent of its inconsistency. So if it is that you have a piece of legislation which goes against what is written in the Constitution, it simply cannot stand.

Speaker 1:

And the last, of course, is the Constitution of the United States. It represents a source of supreme and fundamental law. Now, this position is safeguarded by provisions within the document itself which are entrenched and prevent any means to circumvent by any other body or by invalidating it and striking down as void any efforts to invalidate it. Now, the principles embodied in the UK's constitution. Well, under the UK's constitution, as it were, the defining fundamental principle which provides for a similar legal authority to be given to it as, to say, it's US, nigerian, jamaican and South African counterpart, is parliamentary supremacy. Now, that is the principle that focuses on what is, for all intents and purposes, the Constitution of the UK. We'll take a short break and, as soon as I return, I will wrap up on looking at the characteristics of the Constitution, as well as looking at the sources of the UK Constitution.