The UK Constitution

The UK Constitution

Nature of the UK Constitution

The UK has an uncodified constitution — it is not contained in a single written document. This makes it unique among major democracies (only Israel and New Zealand are comparable).

Key Features

Feature	Meaning
Uncodified	Not contained in one single authoritative document
Unentrenched	Can be changed by a simple Act of Parliament (no special procedure required)
Unitary	Sovereignty traditionally resides at Westminster (though devolution has modified this)
Parliamentary sovereignty	Parliament is the supreme legal authority; no body can override or set aside its legislation
Constitutional monarchy	The monarch is head of state but exercises power through ministers accountable to Parliament
Fusion of powers	The executive (government) sits within the legislature (Parliament), unlike the US separation

Sources of the Constitution

1. Statute law — Acts of Parliament. These are the most important source because of parliamentary sovereignty. Key examples:

• Magna Carta (1215) — established that the king is subject to law
• Bill of Rights (1689) — parliamentary supremacy over the Crown, free elections, no taxation without consent
• Parliament Acts (1911, 1949) — limited the Lords' power to delay legislation
• European Communities Act (1972) — incorporated EU law (repealed by the European Union (Withdrawal) Act 2018)
• Human Rights Act (1998) — incorporated ECHR into domestic law
• Constitutional Reform Act (2005) — created the Supreme Court, separated it from the Lords
• Fixed-term Parliaments Act (2011) — set five-year terms (repealed 2022 by the Dissolution and Calling of Parliament Act)
• Scotland Act (1998), Government of Wales Act (1998) — established devolution

2. Common law — judge-made law built up through precedent over centuries. Includes:

• Royal Prerogative: residual powers of the Crown exercised by ministers (e.g. declaring war, signing treaties, granting pardons)
• The rule of law — established through judicial decisions

3. Conventions — unwritten rules that are followed by custom but are not legally enforceable. Key examples:

• The Salisbury Convention: the Lords does not block manifesto commitments of the governing party
• Collective ministerial responsibility: cabinet members must publicly support government policy or resign
• Individual ministerial responsibility: ministers are accountable for their department's actions
• The monarch grants Royal Assent to all bills passed by Parliament
• The leader of the largest party in the Commons is invited to form a government

4. Works of authority — scholarly texts that explain constitutional practice:

• A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885): defined parliamentary sovereignty and the rule of law
• Walter Bagehot, The English Constitution (1867): distinguished "dignified" parts (monarchy, Lords) from "efficient" parts (Cabinet, Commons)
• Erskine May, Parliamentary Practice: the procedural bible of Parliament

5. EU law and treaties — were a source until Brexit (31 January 2020); retained EU law was incorporated then progressively amended or repealed

Parliamentary Sovereignty

A.V. Dicey (1835-1922) defined parliamentary sovereignty as having three elements:

1. Parliament can make or unmake any law on any subject

2. No Parliament can bind its successors (each new Parliament is sovereign)

3. No body can set aside an Act of Parliament

Challenges to parliamentary sovereignty:

• EU membership (1973-2020): EU law had primacy over UK law (Factortame case, 1990)
• Devolution: while Westminster retains legal sovereignty, it would be politically impossible to abolish the Scottish Parliament without Scottish consent (Sewel Convention)
• Human Rights Act 1998: courts can declare legislation "incompatible" with the ECHR (though Parliament is not legally obliged to change it)
• Referendums: the 2016 Brexit vote was advisory but treated as binding, effectively constraining Parliament
• Supreme Court: the Miller cases (2017, 2019) saw the court rule on the limits of executive prerogative

The Rule of Law

Dicey identified three elements:

1. No one can be punished except for a breach of law established through ordinary courts

2. Equality before the law — all are subject to the same laws and courts

3. The constitution is the result of individual rights as defined by the courts (rather than rights being granted by a constitution)

Constitutional Reform Since 1997

The Blair government embarked on the most significant programme of constitutional reform since 1911:

Reform	Effect
Devolution (1998)	Scottish Parliament, Welsh Senedd, Northern Ireland Assembly created
Human Rights Act (1998)	ECHR rights enforceable in UK courts
House of Lords Act (1999)	Removed all but 92 hereditary peers
Freedom of Information Act (2000)	Right to request information from public bodies
Constitutional Reform Act (2005)	Supreme Court created; Lord Chancellor's judicial role removed
Fixed-term Parliaments Act (2011)	Five-year fixed terms (repealed 2022)
Brexit (2016-2020)	Withdrawal from the EU; most significant constitutional change in decades

Should the UK Codify its Constitution?

Arguments for codification:

• Would provide clarity and certainty about citizens' rights and governmental powers
• Would limit governmental power through entrenchment
• Would give the judiciary a clear basis for constitutional review
• Education: citizens could know their rights

Arguments against codification:

• The uncodified constitution is flexible and can adapt to changing circumstances without cumbersome amendment procedures
• Parliamentary sovereignty would be constrained (is this desirable?)
• Difficult to codify conventions that depend on political culture rather than law
• Who would draft it? Risk of partisan drafting
• "If it ain't broke, don't fix it" — the UK has been stable for centuries

Key Thinker: Thomas Paine (1737-1809)

In Rights of Man (1791), Paine argued that a constitution must be a written document that precedes and constrains government: "A constitution is not the act of a government, but of a people constituting a government." He criticised the UK for having no codified constitution, arguing this left rights unprotected.

Exam Tips

• Learn the five sources and be able to give examples of each
• Use Dicey on parliamentary sovereignty and the rule of law
• Be able to argue for and against codification
• Reference specific reforms (with dates) when discussing constitutional change
• The Miller cases (2017 and 2019) are essential for discussing the relationship between Parliament, the executive, and the judiciary