Public Law

Denning Law School

INTRODUCTION TO CONSTITUTION

What is a constitution
A constitution is the foundational framework that governs how a state operates. At its core, a state’s
constitution establishes the basic institutions of government, defines their powers, and regulates the
relationships between institutions and between the state and individuals. As defined by the House of
Lords Select Committee on the Constitution (2001), it consists of the laws, rules, and practices that
create these institutions and structure their authority and interactions.
A key distinction in constitutional theory is between codified and uncodified constitutions. A codified
constitution is contained in a single authoritative document that has special legal status as the highest law
of the state and is interpreted by a constitutional or supreme court. By contrast, the UK has an uncodified
constitution, meaning there is no single constitutional document and no special amendment procedure;
Parliament can enact constitutional change by a simple majority. This also makes the UK constitution
flexible rather than rigid, unlike codified constitutions where amendments require special procedures such
as super-majorities or referendums. Constitutions may also be classified in other ways, such as unitary or
federal, republican or monarchical, and presidential or parliamentary.
What does a Constitution do?
A constitution is not just a set of legal rules; it also reflects a country’s history, values, and ideals at a
particular point in time. Most constitutions are created during major political events, known as
“constitutional moments,” such as revolutions, independence, the formation of a new state, or after war.
Because each country’s history is different, no two constitutions are the same. This also explains why the
UK does not have a single written constitution: its political system developed gradually over time without
a dramatic break or single event that required a new constitutional document.
No matter what form a constitution takes, its main purpose is the same everywhere. The idea of
constitutionalism means that all branches of government, Parliament, the executive, and the courts must
act within constitutional limits. A constitution provides the basic framework for how government works,
how power is exercised, and how the state relates to its citizens. It also helps control and limit
government power, ensures legitimacy, and protects key principles such as the rule of law, democracy,
separation of powers, and sovereignty.
Sources of the UK Constitution:
1. Act of Parliament
An Act of Parliament is a law formally made by the UK Parliament. It is passed through both
Houses of Parliament and receives Royal Assent. Acts of Parliament are legally binding and can
create, change, or remove legal rights and duties. They are the highest form of law in the UK due
to parliamentary sovereignty.
2. Common Law
Common law is law developed by judges through decisions made in court cases over time. It is
based on precedent, meaning that courts follow principles established in earlier cases when
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Denning Law School
Academic Year 2025 – 26

deciding similar disputes. Common law fills gaps where there is no Act of Parliament and can be
changed or overridden by statute.
3. Constitutional Conventions
A constitutional convention is a non-legal rule or practice that guides how the constitution
operates in practice. Conventions are followed because of political morality and tradition, not
because they are legally enforceable by courts. For example, the Prime Minister must be a
member of the House of Commons.
Constitutional Conventions
Constitutional conventions are an important source of the UK constitution, especially because it is
uncodified. They are best described as rules of constitutional practice that are followed in reality but are
not legally enforceable. Conventions help the legal constitution function smoothly by guiding how
political institutions behave in practice. Although courts may recognize the existence of conventions, they
cannot enforce them or rule on their scope, as confirmed by the Supreme Court in Miller v Secretary of
State for Exiting the European Union (2017). Any consequences for breaking a convention are therefore
political, not legal.
A key feature of constitutional conventions is that those bound by them feel a genuine obligation to
follow them, which distinguishes conventions from mere habits or customs. While conventions were
traditionally unwritten, many are now recorded in documents such as the Ministerial Code and The
Cabinet Manual. Despite being written down, they remain non-legal rules and continue to operate
through political accountability rather than judicial enforcement.
Identifying Constitutional Conventions
Constitutional conventions are particularly important in controlling how prerogative powers are
exercised, but their content is not always clear. Some conventions are well established, such as the
expectation that the monarch gives Royal Assent to bills passed by Parliament. Others are more uncertain,
for example whether parliamentary approval is required before using the prerogative power to deploy
armed forces. This shows that conventions can vary in clarity and strength.
To identify whether a constitutional convention exists, Jennings proposed a three-part test: first, whether
there are consistent precedents; second, whether the constitutional actors believed they were bound by a
rule; and third, whether there is a good reason for the rule. It is also important to remember that
conventions are not fixed; they can develop, change, or disappear over time. As a result, it may
sometimes be unclear whether a convention has been breached or whether it has simply evolved.
The Question of Codification
There is an ongoing debate about whether the UK should adopt a codified (written) constitution. A key
issue in this debate is flexibility. The UK’s uncodified constitution is easy to change, which allows it to
adapt quickly to new circumstances. However, this flexibility can also be seen as a weakness, as
important constitutional principles may not be strongly protected if they can be altered by a simple Act of
Parliament. Supporters of codification argue that a written constitution would be clearer, more accessible,
and increase public awareness of constitutional rules and rights.
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Denning Law School
Academic Year 2025 – 26

There are also important practical questions to consider. Who would draft a written constitution, and what
should it contain? Should it simply record the current constitutional arrangements or be used as an
opportunity for reform? Another major concern is the increased role of judges under a codified
constitution, as courts would have the power to interpret and enforce the constitutional text. Whether this
is seen as positive or problematic depends on whether one prefers legal constitutionalism (strong judicial
oversight) or political constitutionalism (greater reliance on Parliament). Finally, even in countries with a
written constitution, not all constitutional rules are contained in one document, as conventions and
political practices continue to exist.