Law Sessions With Jennifer Housen’s Podcast

The Unwritten Blueprint: Understanding the UK's Constitutional Framework

Subscriber Episode • • Jennifer Housen • Season 1 • Episode 4

Share episode

Subscriber-only episode

We explore the unique nature of the UK's uncodified constitution, examining its principles, sources, and how it differs from codified constitutions in other countries. Parliamentary supremacy stands at the heart of the UK system, with Parliament as the supreme lawmaking body rather than a written constitutional document.

• Parliamentary supremacy forms the core principle of the UK constitution
• Separation of powers ensures no single state organ becomes "judge, jury and executioner"
• Judicial independence allows courts to stand as the "conscience of the nation"
• UK constitutional sources include both legal sources (legislation, common law) and non-legal sources (conventions, customs)
• Key Acts of Parliament with constitutional significance include the Magna Carta, Human Rights Act and Parliament Acts
• Constitutional conventions are non-justiciable rules considered binding by constitutional players
• The office of Prime Minister and Cabinet exist purely by convention
• Royal assent to bills passed by Parliament occurs by convention

Join us for the next session where we will explore the separation of powers in greater detail.


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

Speaker 1:

Welcome back to this final segment of this law session on public law and in particular we were considering an introduction to public law and looking at the characteristics of a constitution. We will end this segment by looking at the principles which underpin the UK's constitution and certainly we will also consider the sources of the UK constitution. Now, before the break, we looked at at least four countries where we see a codified constitution and we see where their legal basis comes from. We see the supremacy of the particular constitution being set out within the constitution itself, and what I said to you just before we broke was that when you look at the authority in respect of those, for example, when we see in the UK, parliamentary supremacy or parliamentary sovereignty is the heart and essence of what the UK Constitution is about, because when you consider even the written aspects of it, the fact of the matter is those written aspects will usually include acts of parliament. So statutes are one of the biggest sources and as such, it gives credence to the whole parliamentary supremacy concept. Now, when you look at the other principles and sources of the UK Constitution, they're various and we will touch on them briefly because of course, we will consider them certainly in fuller lectures and sessions later on. Parliamentary supremacy, though, as I say, stands at the heart, and it is the idea that Parliament is supreme and it is the supreme lawmaking body. So, whereas we see other countries that have a codified constitution having the constitution as its core and center, we see that in the UK it's parliament that is the core and center and it is the supremacy of parliament, which is given effect by the courts, that stands as the supreme law.

Speaker 1:

Now, starting with that, there are other principles which underpin the Constitution of the UK. So we see that there are common law principles which are fundamental in the way the UK works. If we go back to the broad meaning, we see that what is required? It appears that certainly the UK has that framework, because there are acts of parliament, for example, that deals with the makeup of who can be an MP. It looks at who can sit in the commons, as it were, and so you have certain types of statute which deal with constitutional matters in the same way that you would get a codified constitution dealing with it.

Speaker 1:

So the other principles that we certainly would have to consider in the context of the UK is a separation of powers. Now, the separation of powers concept is certainly played out when we look at the case law. The great thing well, I don't know if it's a great thing as such, but one of the things about public law is that certain parts of public law are not heavily case-laden. In some, there is hardly, if any, cases, because it is about either how governments operate or it may simply be that you have certain statutes or you have to ensure that you are staying on top of current events. So when we look at certain areas, as we go through public law, you will have to make sure that, for example, we'll get to individual ministerial responsibility, collective ministerial responsibility. These are concepts that are best explained by virtue of current events or what's happening at the time.

Speaker 1:

So, as I continue with these principles, separation of powers the organs of the state need to be separated when you look at the rule of law, that everybody, as it were, is subject to the law, with, of course, certain limitations. The independence of the judiciary, because one thing that stands as the mark of any democracy is that its judiciary must be independent, meaning, of course, that the judiciary must be able to say, separate from what Parliament or the executive is saying. It should stand as the conscience, as it were, of a nation. So it should not necessarily be that one organ of the state is judge, jury and executioner. What you get is a judiciary who can stand, albeit from an appointed framework. The fact is that they can stand independently of worrying about how they will be paid, and certainly can criticize or even find in cases which may be unpopular. But the fact is that it may appear not only to follow the law, but appear fear in all the circumstances, and it is only where a judiciary is independent and not tied to those in power that it can do that.

Speaker 1:

Now, the UK Constitution, of course in its uncodified form, requires various sources in order to ensure that all the requirements are met. So, in a codified constitution, you know who is eligible to be a member of parliament, you know what citizens' rights are, you know how parliament needs to conduct itself, and so on, whereas in the UK, you will still have those various aspects of it, but you will need to find them in various places, and these places, of course, include Acts of Parliament, it includes the Common Law, it includes conventions, it includes Royal Prerogative, which is, of course, crown Powers, it's included in Parliamentary privileges and in the absence of a written constitution. We see that we have various sources and by and large, they can be grouped into two. We can have legal sources, which legislation and the common law, parliamentary privilege, royal prerogative matters relating to EC law and EU law, as well as European Convention on Human Rights. We can have these legal sources. But alternatively, we can have uncodified or non-legal sources and of course these look at conventions, customs, what legal scholars have written, writers of various works you will see, for example, av Dicey, and so on.

Speaker 1:

Now, if we look at these, for example, arguably the most important is going to of course, be legislation. So, when you look at certain acts of parliament, we see that certain acts of parliament purport to have certain greater constitutional significance than others. So, for example, the Disqualification Act, in telling you you know the makeup of Parliament, the Human Rights Act, which looks at, you know, citizens' rights. We look at the granddaddy of them all, the Magna Carta. We look at, for example, the European Communities Act, which of course looks at the interrelationship between the UK and the European Union, certainly the Parliament Act of 1911 and 1948. And these of course show you that, as it relates to legislation, there are certain types of legislation which are of significant constitutional value, but never lose sight of the fact they're still an Act of Parliament. As such, they can, for all intents and purposes, be repealed.

Speaker 1:

Now, as it relates to the common law, you have legal principles that have been established by judges who have been interpreting the law by way of deciding cases, and that, of course, provides another basis for the sources of UK law, and you will see certain cases Think of Entick and Carrington. We see the way that the citizen is supposed to be dealt with. We also, of course, have the royal prerogative powers, and prerogative powers are those residual powers that the monarch still holds and exercises, and prerogative powers are primarily exercised by the executive, meaning, of course, the monarchy and the prime minister in the name by the prime minister, in the name of the monarch. Now, there are also constitutional conventions, which are rules which strengthen the constitution but are not rules of law. There are practices, old and new, which have not hardened into law, but violation of these practices would be heavily criticized, albeit that there is no legal sanction that would apply. They are considered by the constitutional players, so the executive, the judiciary, the legislature. They consider them to be binding, though they are not justiciable, meaning that non-justiciability, or saying something is non-justiciable, means a court cannot exercise its judicial authority over the breach of that thing in this regard over a convention, over the breach of that thing in this regard over a convention. So it is not a cause of action insofar as it's not enforceable in the courts.

Speaker 1:

Now the examples of conventions, of course, is that the office of the prime minister and certainly the cabinet exists by way of convention. They are both referred to as creatures of convention. They are both referred to as creatures of convention. There is no legal position which espouses the necessity for these institutions to exist, but through convention they are brought into being and would not readily be done away with.

Speaker 1:

Now, the queen's appointment of the lead of the largest party to form the government is also a convention, because the reality is the Queen can actually appoint anybody she likes to be her Prime Minister, she can appoint me to be her Prime Minister, but by convention, by the rules, she appoints the leader of the largest party to form government. The leader of the largest party to form government. Now, the giving of the royal assent to acts of parliament is what makes a bill an act, now, again by convention, once it has passed through both houses. The monarch is not going to say no, but it is still a rule. Now, in a nutshell, that is the characteristics that you would need to be aware of in terms of the Constitution and, equally, those are the rules, or rather the sources in a nutshell of what you need to know. I hope that gives you some grounding into this introduction and certainly looking at a constitution as such. I certainly hope you will join me for the next session, which will, of course, be on separation of powers.