Public law Peer review exercise 2021

Indicative Classification: Upper Second (2.1)

STUDENT ANSWER
A matter can be described as ‘unconstitutional’ when it goes against the constitution. Colin
Munro defines a constitution as “a body of rules and arrangement concerning the government
of the country.” The question requires a discussion on whether the UK having an uncodified
constitution has ‘unconstitutional’ matters. This essay will further examine the nature of the UK
constitution, sources of the UK constitution, examples, and consequences of an
‘unconstitutional’ matter.
Most nations generally possess a codified constitution which is a single document that “sets out
the framework and the principal functions of the organs of government within the state…”
(Bradley and Ewing). The UK constitution, however, does not have a single written document
stating the ‘British Constitution.’ This does not mean that the UK does not have a constitution,
but it is said to be an “uncodified” constitution rather than “unwritten" as per Sir Ivor Jennings.
The uncodified nature of the UK constitution is due to its unique historical background. Unlike
most countries with a codified constitution that usually drafted their constitution following a
significant political change, the UK has been a stable nation throughout history. Hence, the UK
does not require a codified and written constitution. Where K.C in Modern Constitutions also
highlighted the UK constitution as a "…whole system of government of a country, the collection
of rules which establish and regulate or govern the government".
The unique part of the UK constitution is that it has various sources in a scattered form. It is said
more of a “dispersed rulebook.” Both the legal and the non-legal rules formed the constitution.
Legal sources are rules that can be enforced in the courts and binding in nature, for example,
statutes, common law, royal prerogative, and parliamentary privilege. Non- legal sources are
mostly unwritten and not binding such as a constitutional convention, the custom of Parliament,
and constitutional principle. Anything done in conflict with these rules would be declared as
‘unconstitutional.’ The difference in declaring a matter ‘unconstitutional’ between a legal and
non-legal source is that the former would attract sanction enforced by the courts, and the latter
would not.
Statute or Act of Parliament, is one of the UK's primary legal sources. Examples of constitutional
statutes would be the Magna Carta 1215, which expressed that the King should act in
accordance with the law, the Bill of Rights 1688, which have restricted the monarch's power, and
the Human Rights Act 1998 incorporates ECHR rights into domestic law to uphold the rights and
freedom of UK citizens. Examples of common law or case law are contrasting Entick v Carrington
and Liversidge v Anderson cases. The royal prerogative is one of the legal sources, too, defined
by AV Dicey as "residue of the arbitrary and discretionary powers legally left in the hands of the
Crown".

Page 1 of 3
The non-legal source of the uncodified British Constitution is predominantly made up of
constitutional conventions. Dicey has defined conventions as “understandings, habits or
practices” for regulating the minister and “are not enforced by the courts.” Conventions are
essential, acting as a tool to regulate the government's operation, which Sir Ivor Jennings
described that convention" provide the flesh which clothes the dry bones of the law...". Examples
of some conventions are royal assent must be given by the Queen, the appointment of the
Prime Minister that must be the leader of the political party, and the doctrine of collective and
individual ministerial responsibility.
The Cabinet Manual has defined it as “rules for constitutional practice that are regarded as
binding in operation but not in law”. This demonstrates that breaching a constitutional
convention would not be considered 'illegal' but would be regarded as ‘unconstitutional’ and
may face political repercussions. Hence, an obligation to follow the convention is imposed on
those who accept it.
The UKSC emphasized in Miller v Secretary of State for Existing the European Union 2017 that
judges are “merely observers” of political conventions and can only “recognize the operation of
a political convention…”. An illustration of a breach of convention can be seen in AG v Jonathan
Cape in which the government sought an injunction to prevent the publication of a former
Cabinet member's diaries - Richard Crossman, which included records of Cabinet discussions.
The court recognized that the Cabinet member has breached the convention of collective
responsibility but refused to enforce it. In Madzimbamuto v Lardner-Burke 1969, the Privy
Council ruled that it would be unconstitutional for the UK Parliament to act contrary to
convention. However, the court could not enforce any convention to limit the power of the UK
Parliament.
To conclude, conduct that deviates from the legal and non-legal sources of the UK constitution
would be described as 'unconstitutional'. An 'unconstitutional' matter would not be 'illegal' in
non-legal sources, especially in the constitutional convention.

TUTOR FEEDBACK
Aspect 1: Does the answer identify that the United Kingdom/Britain has an uncodified
constitution and (briefly) what this means? How well does the answer demonstrate
an understanding of the term ‘unconstitutional’ and why this is different in the
context of the British constitution?
Yes, and makes good use of relevant authority to support.
Throughout there is a clear and accurate understanding of 'unconstitutional'.

Aspect 2: How well does the answer provide a contrast with countries with codified
constitutions? How clear is the understanding that the role of courts in countries
with codified constitutions are different from that in the UK?
It is clear that the distinction is understood.
There is some very good discussion of the role of the courts in the UK context. Could also have
added that in countries with codified constitutions the term ‘unconstitutional’ tends to mean
‘unlawful’ in that something (a law, an action) is against the constitution and the courts have a
distinct role to play in this regard.

Page 2 of 3
Aspect 3: Assess the discussion of constitutional conventions (are there examples?), to
demonstrate how breach can lead to ‘unconstitutional’, yet not illegal or unlawful,
behaviour.
This important aspect is very well done. There is clear understanding of the role and nature of
conventions as an important but non-legal source of the constitution. Good use of examples.
Could have perhaps added a couple of more contemporary instances.

Aspect 4: Does the answer consider other constitutional sources? How could you
improve this?
It is clear the student understands that there is a range of sources and refers to them in a
relevant manner whilst retaining focus on conventions.

Aspect 5: Has the answer engaged with the recent Cherry/Miller No.2 case? What do
you think should be said about this case in the answer?
No, this would have been good to see.
Does include a relevant reference to Miller No.1 in terms of how the courts view conventions
which adds to the overall essay.

Aspect 6: How well does the answer relate to the question set and is not an attempt
to answer a related but different question about the desirability or otherwise of
constitutional codification?
Very much related to the question set. No attempt to 're-frame' the question or answer.

Overall feedback
This is a very good essay which properly engages with the question set in a coherent and well-
structured manner. It draws upon a range of appropriate and relevant authority throughout. A
few recent examples in relation to constitutional conventions and engagement with the
Cherry/Miller would have raised the mark.
High Upper Second (2:1)

Page 3 of 3