Sandali Anuttara Karunawansa

Planning an essay

2011 = Zone B

Discuss the case for and against a written constitution for the United Kingdom.
2. 1.
3

1. Constitution
2. Classification
3. For and against sketch
4. Models
5. Conclusion

Tell the examiner what the question is about. Should UK have a written constitution.- Intro

Then Flag- 1st what a constitution is

2nd different classifications of a constitution

3rd models of codification

4 th conclusion

 Start writing according to the way you flagged it- what’s a written, what’s unwritten
 Since the question is about whether UK should have a written constitution. Professor Blackburn
Sandali Anuttara Karunawansa

2. Discuss the case for and against a written constitution.

The call for the United Kingdom to adopt a written or ‘codified’ constitution is not a new
development. During the 2010-2015 Parliament the House of Commons Political and
Constitutional Reform Committee inquired into the implications of codification. Here, the
eminent constitutional scholar Professor Lord Blackburn not only set out the case for and
against the U.K. adopting a codified constitution but also set out three basic models for a
constitution. This essay will refer to Lord Blackburn’s recommendations in considering the case
for and against codification.
The essay will begin by first defining what a constitution is. Second, it will state and explain what
a written and unwritten constitution is and contrast them with reference to their respective
rigidity and flexibility. Third, it would state and consider the arguments for and against the
United Kingdom adopting a codified constitution. Fourth, it would state and explain the basic
models for codification set out by the House Reform Committee. Having weighed the cases for
and against codification, it will conclude that in the current political and social landscape the
uncodified nature of the United Kingdom’s constitution is an advantage to be utilized and
should remain uncodified.
A basic definition of a constitution, as provided in Le Suere, Sunkin and Murkens is the set of
most important rules of the structure and powers of government and of people’s most basic
freedoms and rights. Bradely A. and K. start their definition of a constitution by stating that it is
a document which has ‘special legal sanctity’. This is what we would call a written constitution,
which can be contrasted with an ‘unwritten’ constitution.
A written constitution is representative of an attempt by politicians and statesmen to codify all
the important laws and regulations relating to the way in which a state is governed. For
example- ‘The Constitution of the United States. A codified constitution is seen as a higher form
of law than standard legislation. Therefore, in states with a codified constitution, there will be a
‘Constitutional’ or ‘Supreme’ court whose function it is to uphold the constitution- with regard
to government action or legislation.
In contrast, the U.K. supreme court does not perform such a function. This is because the
important constitutional rules are not written down in one supreme, codified legal document.
The U.K. has what is called a dispersed constitutional rulebook . The sources of this rulebook are
certain acts of parliament, judicial decisions, crown prerogatives constitutional conventions and
international treaties. However, the term ‘unwritten’ is rather misleading as most of the rules
are written down somewhere- the cabinet manual first published in 2011, the various
devolution acts, Human Rights Act 1988 and common law cases such as R (Miller) v Secretary of
State for Exiting the European Union . Therefore, ‘uncodified’ is a better term for the nature of
the U.K. constitution.
Sandali Anuttara Karunawansa

Another important classification with regard to codified and uncodified constitutions are their
respective rigidity and flexibility. In a ‘rigid’ constitution many of the rules will be ‘entrenched’,
through the codified constitution. That is, the constitution itself will set out stringent
procedures for amending the provisions in the constitution, such as a supermajority in the
legislature or a popular referendum. By contrast the UK constitution through its ‘uncodified’
nature is ‘flexible’. Parliament can alter the constitution through a simple majority vote.
The House of Common’s Political and Constitution Reform Committee identified a set of
arguments in favour of codification. They asserted that the Uk constitution is esoteric and
dispersed in nature. The rules are spread across common law, European treaty obligations and
uncertain and unwritten conventions -that are impenetrable and debated by constitutional
scholars. This impenetrability discourages informed, popular participation in the political
process, which is the very essence of a representative democracy. In the aftermath of the
European Union referendum, it is evident that the British people did not grasp the boundaries
of the British State and its relationship with Europe, which hindered their ability to give an
informed decision on a fundamental political question.
It is also argued that the current ‘uncodified’ constitution places too much power in the hands
of the government, effectively creating an elective dictatorship. It allows for a lack of
accountability and transparency on how government operates. Therefore, it is open to
government manipulation, where politicians can enact constitutional reforms and use loopholes
in conventions to achieve their short-term political goals.
A written constitution also provides an element of stability to a country. Stability in the political
sense means the firm continuance of political institutions over time. It provides certainty and
structure to the relationship between the legislature, electorate and the judiciary. Ukraine war,
and the subsequent energy crisis, the pandemic, and the ongoing Brexit process could be
regarded as events that caused major upheaval within British political institutions. To illustrate,
from 2019 to 2022 there were three prime ministers in office. It could be argued that a codified
constitution setting out the rules regarding elections would have brought much needed stability
to the process.
The other end of the argument is that a codified constitution tends to be too rigid and
entrenched by nature. Higher law requires formal and time-consuming legislation to affect
changes. The British constitution which is evolutionary and flexible in its nature is more
equipped to keep pace with the rapid pace of societal change. One modern example where
constitutional flexibility conferred an advantage upon the UK would be the various devolution
acts. In response to a rising tide of nationalism from Scotland and Wales the British parliament
passed the Scotland Act 1998 and The Government of Wales Act 1998 which radically altered
the constitutional workings of the United Kingdom. It was achieved politically by ordinary
legislation after a general election in which it was part of the successful party's manifesto.
Sandali Anuttara Karunawansa

In response to the argument that it creates an elective dictatorship, it is clear that the
Westminster model has checks and balances built into the system. This is highlighted by the
recent upheaval in the parliament - the resignation of Boris Jhonson and Liz Truss – which was
not resolved in a vote of confidence in the Commons. Political pressure and the inability to form
functioning governments forced candidates that lost the public trust to step down.
Most importantly codification would create more litigation in the courts and politicise the jury.
In a representative democracy, the final say of legal rules should rest on elected legislative not
the unelected judiciary. There are some ways codification could be done without expanding the
constitutional role of the judiciary, as discussed below. However, in essence any supreme law
which sets out to regulate relations between the citizen and the state must by necessity put
some rights beyond the reach of the elected legislature. It passes power to the sphere of the
judiciary where judges recognize, interpret, and sometimes create constitutional rights.
However, courts do not produce decisions based on extensive debates and compromise that a
representative democracy requires. Judges come at a problem from a point of intellectual
inquiry, they do not factor in the messiness of public life.
If the UK was to move towards codification, the House Committee for Constitutional reform
proposed three models. First as a Constitutional Code, a document sanctioned by the
parliament but without statutory authority. Second, a Constitutional Consolidation Act would
consolidate existing laws of a constitutional nature with a codification of essential constitutional
conventions. Third, a written document of basic law by which the United Kingdom would be
governed, including the relationship between the states and its citizens, an amendment
procedure, and elements of reform.
I am of the firm opinion that the UK should not have a codified constitution. During recent years
in response to political upheaval there have been greater calls for codification. Successive
surveys by the Hansard society shows declining public trust in politics and increased trust in the
courts, this is reflected in growing support for adopting a legal system. However, it is important
to note that the world itself is navigating through a period of radical change and remarkable
economic stress. Political upheaval in moments such as this is not unusual. It is, however, not a
reason for establishing a codified constitution. On the contrary it is a reason for retaining the
current uncodified constitution. There are measures around improving political participation
and party candidate selections that are necessary. However, a move to a legal system from a
political system is not the answer.
Finally, this is a major change that would tie up considerable resources for a significant time
period. Considering the issues facing U.K. today with the navigation of Brexit and the cost-of-
living crisis , this is low priority even for those within the government who support the idea.