 The constitution is ‘unentrenched’, ‘unwritten’ and ‘uncodified’ unlike many other

democracies. Should the UK have a written constitution?

o ‘Unentrenched’ means it is not legally difficult to change the rules of the
constitution. (Whereas most countries with written constitutions entrench the rules
of the constitution to prevent governments from changing to constitution to favour
themselves/their party etc...)
o ‘Unwritten’ meaning that there isn’t one document where it is written down (unlike
countries like the USA or France for example) The rules of the constitution are to be
found in acts of parliament, in decisions of the courts, parliamentary debates etc...
o Most other countries try to sum up the important constitutional principles to form
sort of a code. We however do not do this.
o The UK constitution has been constantly evolving and seems to work. There has
never been a particular moment in which it became particularly desirable to produce
a written constitution. (e.g. many countries do this after gaining independence from
colonial rule. Others adopt ones after the end of the war. For example Germany
adopted a new constitution after WW2 to ensure such a situation wouldn’t reoccur)
 The system is a ‘Constitutional monarchy’. Note the legal importance of ‘the crown’. Should
the UK be a republic (a state with an elected head of state)?
o In many countries, the heads of states are figureheads and quite separate from their
heads of government
o It is important to realise that there is a separation between the monarch and ‘the
crown’. (we use the phrase ‘the crown’ to describe many things. E.g. ministers of the
crown, the crown prosecution service)
o ‘The crown’ is part of the government, the legislature, and the judicial system
 The UK parliament is said to be ‘sovereign’ (though now subject to EU law): Is it? If so, is that
democratic?
o The basic idea here is that our courts will always give effects to acts of parliament
even if them deem them undesirable
o Countries with written constitutions normally also have a bill of rights which
prevents parliament from passing laws incompatible with the constitution or some
mechanism to strike down such laws
 There is a Human Rights Act (1998) but it does not forbid parliament from making laws that
interfere with human rights.
 There is no separation of powers between the executive and the legislature (there has only
been an official separation of the judiciary and the other organs with the formation of the
Supreme Court on 1st October 2009) – does that matter? Are ‘checks and balances’ as good
as ‘separation of powers’?
o All political executives have to be members of parliament
o Instead of a strict separation, we have a system with many checks and balances
o The fear of lack of separation is that too much power in the hands of one group can
easily lead to abuse of the power
 Membership of the EU. This affects parliamentary sovereignty. Is there a ‘democratic deficit’
or a ‘bureaucratic surplus’ in EU membership?
 There is no concept of culture of ‘citizenship’ in the sense of all being members of a political
community in the UK.
 Although the system is essentially a ‘political’ constitution (i.e. it places substantial reliance
on conventions/constitutional culture rather than on law) a process of developing principles
of both ‘soft’ and ‘hard’ law to regulate political behaviour and prevent abuse is taking place
o There is substantial reliance on conventions and the political executive
 For example, all political members of the government must be a member of
a house of parliament. This is not backed up by case law or legislation.
o However, a process of developing both ‘hard’ law (legislature, case law) and ‘soft’
law (informal but nonetheless important rules though not enforceable in a court) to
regulate political behaviour and prevent the abuse of power is always ongoing.
 Hard law; Parliamentary Standards Act 2009. Rushed through in about 3
weeks after the MP expenses scandal. It set-up an independent body to run
the new expenses system.
 Soft Law; In the mid 90’s, there was a huge row over mp’s taking bribes to
ask parliamentary questions. This led to a body called the Committee of
Standards in Public Life being created. The first thing they did was to
formulate the 7 principles of public life and those principles were then
voluntarily adopted by HC, HL, the PM, and other local authorities. Another
good example would be the civil service code which says that civil servants
are not to be used for party political reasons. The reason soft law is effective
is that they reflect public opinion.
 A process of devolution and decentralisation of power to the nations and regions (Except
England) and to independent agencies is taking place.