Question:
In what sense is it true to say that the UK has an unwritten constitution? Why has it not adopted a modern type of constitution? What would be the advantages and drawbacks of it now doing so?
Answer:
Debate and controversy have always surrounded the issue regarding whether the United Kingdom has a written or unwritten constitution. However, the most important distinction that must be made is between the terms ‘unwritten’ and ‘uncodified’. ‘Unwritten’ refers to an entity that has not been recorded in writing whilst ‘uncodified’ describes a constitution that is not comprised of a singular document, rather many sources. ‘True’ can be defined as an absolute term where the entire component that makes up the source of the constitution must be completely undocumented for it to be considered unwritten. With this limit in mind, it is impossible to say with absolute certainty that, in any sense, the UK Constitution is fully unwritten. It may be more accurate to say that the UK has a written uncodified constitution. In the practical and theoretical sense, constitutional conventions,[1] and fundamental legal principles are often considered to be unwritten as they are ambiguous and difficult to locate within written documents.[2] Moreover, when compared to other systems, it can be seen that the UK does not have a written constitution in a similar form.[3] According to Thomas Paine, a modern constitution must be a real, physical, and comprehensive document that has the status of fundamental law: characteristics that the current UK constitution does not fulfil.[4]
One component of the UK Constitution [i] is the political custom known as conventions.[5] Conventions are employed in the constitution in the practical sense as they are traditionally ‘unwritten’ rules of constitutional practice ‘that are regarded as binding in operation but not in law’.[6] One example of this is that in legal theory[ii] , the Queen has the judicial power [iii] to refuse royal assent to any Bill being passed by the two Houses of Parliament. However, as a matter of convention, the Monarch automatically provides royal assent to Bills passed by Parliament. Until recently, many guides to the processes of constitutional practices were purely conventional [iv] but it can be argued that with the publication of documents such as The Cabinet Manual,[7] conventions are beginning to be written down. It is acknowledged that not all conventions have been documented. Nonetheless, it would not be true to say that the UK has an unwritten constitution in the practical sense since a portion of these conventions have been written down. The existence of these separate individually written documents indicates that the UK has not adopted a modern type of constitution,[v] nor does it have any intention to do so.[vi]
Arguably, a modern codified constitution would help with providing clear rules for political procedure, much like The Cabinet Manual has done.[8] A singular constitution may be more convenient for viewing purposes [vii] as it would help eliminate the confusion that arises when there are multiple sources of constitutional legislation, making the UK Constitution more transparent and intelligible.[viii] On the other hand, providing a codified constitution would be of no use if it is merely a political gesture. If the principles located within a codified constitution are not upheld by the government, then it would serve no purpose. The disingenuous attitude of the UK government [ix] is indicative of this behaviour through the case of Priti Patel violating the Ministerial Code.[9] The government’s dismissal of the claims against Patel suggests their insincerity towards upholding the content of a codified constitution, should one be implemented.[x] Their lack of intention to do so implies that the codification of a constitution would be an unfruitful endeavour.[xi]
When compared to the Constitution of the United States,[10] the UK does not have a written constitution in the same form. Instead, an emphasis must be placed on the definition of uncodified. Constitutional legislation in the US is derived from a single document. However, over the past centuries, several different Acts of Parliament on major constitutional subjects, when compiled, could be viewed as constitutional legislation in the UK. For example, the Magna Carta,[11] and the Union with Scotland Act guarantees the rights of individuals,[12] much like the US Constitution codifies the liberties of American citizens. It would not be true to say that the UK constitution is unwritten from a comparative perspective as there are written documents that can be considered to be constitutional legislation-they are simply not codified.[xii] Historically, the UK did not go through a revolution in the 18th Century and therefore there was no need for a codified constitution, unlike the US. The US Constitution is praised for being easily accessible. Moreover, the strength of their constitution is upheld by their citizens’ patriotism as they have a clear understanding of what their rights are.[xiii] As opposed to the US, many [xiv] maintain that the rights of UK nationals are unclear due to the multitude of conflicting constitutional legislation.[xv] The US Constitution, despite being a modern type of constitution, has also been criticised for being out of step with modern needs. The current UK Constitution is often described as a ‘living constitution’ [xvi] because it can evolve and adapt to reflect the changing social environment. For example, the Coronavirus Act 2020 was smoothly and quickly implemented as a reflection of the current state of the country.[xvii][13] If the UK were to have a codified constitution, this dynamic and flexible characteristic of the current constitution would be lost and it would be less amenable to constitutional reform, prohibiting legal development.[xviii]
Significantly, the UK constitution is subject to constant change and according to Tocqueville: ‘the Parliament is at once a legislature and constituent assembly.’[14] One fundamental principle in the UK constitution is parliamentary sovereignty and it can be viewed that this principle has not been specifically written down in an accessible and viewable document. Although the primary focus of the Bill of Rights was to limit the power of the Monarchy,[15] it also elevated parliamentary supremacy. Even though the intent is indirect, the fact that parliamentary sovereignty is hinted at within the Bill makes it, in the theoretical sense, not true that the UK constitution is unwritten.[xix] Dicey comments ‘that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament’.[16] The fact that no one other than Parliament can write laws and override earlier legislation conveys the fact that there is no higher source of constitutional law than Parliament. In this sense, the UK has not adopted a modern type of constitution because to do so would undermine the principle of parliamentary sovereignty.[xx] As seen with Brexit and Article 50 of the Lisbon Treaty,[17] the absence of a codified constitution can cause problems regarding what the government can do without the consent of Parliament.[xxi] Therefore, it is suggested that having a codified constitution could impose limitations on governmental power and it could make the powers of the executive, legislative and judicial branches more defined, leading to more certainty and possibly less conflict between the three pillars of government.[xxii] Nevertheless, if the aim of a modern type of constitution is to modernise a society,[xxiii] a codified constitution may be unnecessary as it might be better to strengthen the existing systems of Parliamentary Sovereignty and British democracy instead.
In conclusion, the UK constitution is an uncodified but in no sense unwritten constitution. Written documents containing statutes and conventions make up the layers in which the UK governs itself, with the principle of parliamentary sovereignty at its core. It is not considered to be a modern type of constitution; however, it would not be beneficial for the UK to implement a codified constitution. Despite the dissatisfaction with the current constitution, it is vital to recognise the scope of flexibility it provides. Fundamentally, one of the reasons the UK has not adopted a modern type of constitution is to avoid compromising parliamentary sovereignty.[xxiv] Until there is the intention to abandon this principle, it is not worth considering the codification of the UK constitution.
Feedback:
Grade: 58
What was done well:
Your essay has a clear argument that you sustained throughout. You have also understood the requirements of the question and engaged with it directly. This is an important skill, as students sometimes fall short on actually answering the question set. You have also demonstrated good understanding of the relevant materials.
What is needed to improve:
1. Structure. Some of your paragraphs 1) are too long and 2) contain separate, sometimes opposing points. New points should be in new paragraphs. Opposing points should be clearly indicated by words such as ‘while it may be argued [x], nonetheless, [y].’
2. Referencing. You made some unsubstantiated claims and points (I’ve pointed them out in comments) which, though not incorrect, should be backed up by case law/academic text/legislation/an appropriate source. This is important in academic writing at university level.
3. Clarity of writing. Some sentences/phrases are unclear. I’ve pointed these out in comments.
4. Lack of understanding of how codified constitutions work. While the course so far doesn’t go into much detail about how codified constitutions work, remember that your exam will be marked by constitutional law experts, and they will know when you are making a factual error or wrong assumptions about the supposed rigidity of codified constitutions. It would be a good idea to do some research into how, exactly, a codified constitution could be inflexible in response to a pressing social need.
References: [1] Andrew Le Sueur, Maurice Sunkin, Jo Eric Khushal Murkens, Public Law: Text, Cases and Materials (4th edn, OUP 2020) 27. [2] Ibid 54. [3] Cabinet Office, The Cabinet Manual (1st edn, London: Cabinet Office 2011) 2. [4] Thomas Paine, Rights of Man: Being an Answer to Mr. Burke’s Attack on the French Revolution (2nd edn, London: J.S. Jordan 1791) [5] A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, London: Macmillan & Co. 1959), 23-4. [6] Cabinet Office, The Cabinet Manual (1st edn, London: Cabinet Office 2011) 3. [7] Cabinet Office, The Cabinet Manual (1st edn, London: Cabinet Office 2011) [8] Ibid. [9] Mike Gordon, ‘Priti Patel, the Independent Adviser, and Ministerial Irresponsibility’ (UK Constitutional Law Association, 23 November 2020) <https://ukconstitutionallaw.org/2020/11/23/mike-gordon-priti-patel-the-independent-adviser-and-ministerial-irresponsibility/> accessed 3 November 2021 [10] Constitution of the United States 1787 [11] Magna Carta 1215 [12] Union with Scotland Act 1707 [13] The Coronavirus Act 2020 [14] A de Tocqueville, Democracy in America (New York: Schocken Books 1961) [15] The Bill of Rights 1689 [16] A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, London: Macmillan & Co. 1959), 3. [17] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
Marker Comments:
[i]This should be ‘constitution’ since the UK doesn’t have a codified constitution. See the extract in LSM on big C vs small c constitution.
[ii]This phrase usually refers to theories about the law. It’s better to say ‘in theory’.
[iii]Are you sure the Queen has judicial powers? This should be ‘prerogative power’. Or simply ‘power’ would suffice, too.
[iv]Not clear what ‘guides’ you’re referring to; this sounds like there are written guides (manuals) on the subject, but that’s not what you’re saying.
[v]Only written conventions indicate this? Not sure conventions-related documents like the Manual really do so much work.
[vi]Doesn’t really follow from disparate documents relating to conventions that the UK has no intention to adopt a codified constitution. The information so far is correct, but the implications that you draw are not precise enough.
[vii]What does this mean? Viewing what?
[viii]Good point.
[ix]Attitude towards what?
[x]Not clear how the Patel example supports your claim that the UK govt won’t respect the terms of a codified constitution. If anything, the dismissal of the claims suggests that there should be a codified constitution to lay out clearly what the govt’s constitutional obligations are in such a situation.
[xi]There are too many things going on in this paragraph. There should have been a new paragraph once you’ve moved on from the conventions point. I’ve suggested paragraph breaks.
[xii]Good point.
[xiii]Contentious claim. Constitutional issues are often deeply divisive in the US: see abortion debate for prime example of this.
[xiv]Who’s ‘many’? You need to cite the appropriate references for such claims.
[xv]Not true. Human Rights Act 1998 clearly states what their rights are.
[xvi]Reference?
[xviii]Relevance to constitution? Many countries with codified constitutions passed similar legislation.
[xviii]This is an oft-made argument. But I’m not convinced by the way you’ve made it. This paragraph also contains two separate points which need to be more clearly separated.
[xix]Unclear. Are you saying that it’s not true UK constitution is unwritten because BoR codifies parliamentary sovereignty which is a constitutional principle? If so, this sentence should be better phrased.
[xx]Good point.
[xxi]This goes against your previous point and should thus be in a new paragraph.
[xxii]Good point.
[xxiii]Is this the aim of modern constitutions?
[xxiv]If this is a factual claim, you have not provided evidence for this. If this is your argument, you should say ‘arguably, a fundamental reason…’
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