Introduction

According to Sir Ivor Jennings, the definition of constitution are the rules which
governs the ‘creation and operation of government institutions’ 1. It may present in two
different forms - codified and uncodified. Internationally, constitutions usually exist in the
form of a government document that consists of rules, codes, principles, arrangements and
precedent concerning the purpose of regulating a country. The objective of this essay is to
explain the nature and sources of the UK constitution, and evaluate whether the UK should
adopt a codified constitution.

Purpose

Over the course of hundreds of years, many theorists have put forward many
conceptions of the purpose of a constitution. One of the main purposes is that constitution
sets the limits of power given to the government to prevent abuses of power and avoid
autocracy. Such limitations protect citizens’ individual rights along with decreasing the
potential of being a subject of unjust ruling and could also diminish the chance of the
descension of a democratic society to dictation 2. It serves as a balance to prevent power
concentrated in one body only3.

The other purpose is to bring together laws, legal theories, founding concepts, rules
and precedents that dictate the relationship between the different arms of government.
This mitigates the relationship between the state and citizens, in particular, powers,
functions, responsibilities and rights. A good constitution should be able to provide the
public a chance to influence the political process as UK is a democratic country 4.

Nature and Characteristics of the UK constitution

The uncodified nature of the British constitution is shaped by its unique historical
development that can be traced back to 1215 (Magna Carta 1215) as an attempt to put the
principle that the king and his government was not above the law 5 into writing. It is worth

1
Ivor Jennings, The Law And The Constitution (University of London Press Limited 1938)
2
A Framework For Reviewing The UK Constitution'
<https://www.instituteforgovernment.org.uk/sites/default/files/publications/framework-reviewing-uk-
constitution.pdf> accessed 14 March 2022.
3
ibid
4
ibid
5
ibid
mentioning that codified constitutions are typically produced after a major historic turning
point. They can only be changed via a special procedure and thus, making it a much more
difficult task compared with ordinary laws.

United Kingdom (UK) is one of the only three countries in the world 6 that possesses
an abstract form of constitution (uncodified) and has managed to maintain its unique
constitutional status due to the absence of any major events 7. In short, the country has been
stable for so long that it has never encounter any constitutional moment. UK has never been
defeated in any war since 1066 and only had one revolution 8. This is the reason why UK do
not feel a need to codify its constitutions.

The Constitutional Unit of University College of London explained that even though
UK constitution is not codified, it consists of an accumulation of various statutes, judicial
decisions and treaties. Therefore, it is more accurate to refer to the UK constitution as
‘uncodified’ rather than an ‘unwritten’ one. This accumulation forms into a collection of
legal rules and non-legal rules that govern the government in Britain.

As referenced by a Professor Albert Vincy Dicey, the doctrine of parliament

sovereignty is the ‘dominant characteristic of the UK constitution’ 9. This allows Parliament
to have the supreme legal authority which means it could pass, amend or repeal any law
without being limited. Monarchy co-exists with Parliament sovereignty which means that
the Queen is the head of state. As of lately, no court or other body has a right to overrule 10
any precedents of Parliament after the legislative process. This includes the Human Rights
Act 1998 or the European Communities Act 1972. These can be repealed by an Act of
Parliament that was passed by the standard parliamentary process11.

Unitary is used to describe UK’s constitution as all power is concentrated in one

body, meaning they have the ultimate law-making person in the state 12. Instead of adopting
6
R. Blackburn, 'Enacting A Written Constitution For The United Kingdom' (2015) 36 Statute Law Review.
7
James Melton, Christine Stuart and Daniel Helen (2015) Lessons from consolidating the United Kingdom’s
constitutional statutes To codify or not to codify? <https://www.ucl.ac.uk/constitution-unit/sites/constitution-
unit/files/162.pdf> accessed 12 March 2022.
8
'A Framework For Reviewing The UK Constitution'
<https://www.instituteforgovernment.org.uk/sites/default/files/publications/framework-reviewing-uk-
constitution.pdf> accessed 14 March 2022.
9
A. V Dicey, Introduction To The Study Of The Law Of The Constitution (Forgotten Books 2019).
10
ibid
11
John Kwan, 'A Written Constitution For The United Kingdom' [2010] The Wilberforce Society.
12
Hilaire Barnett, Constitutional And Administrative Law (Taylor & Francis Group 2021).
a federal constitution such as America and Malaysia, the UK employs a devolution system 13.
Even though majority of the power still lies within the Westminster Parliament, the
extensive power has been devolved to democratic institutions in Scotland, Wales and
Northern Ireland and can be found in acts such as The Northern Ireland Act 1998, Scotland
Act 1988 and Government of Wales Act 199814.

Moreover, the UK constitution is said to be flexible to accommodate the needs of

the current society which is not satisfied by the old law. It allows the government to handle
new situations thrown at its own ways. The procedure to amend laws has thus been made
easy for this very reason and no special procedure is needed compared to countries which
have a codified constitution.

Sources

The constitution of the United Kingdom is based on a various of sources, which are
differentiated as legal sources and non-legal sources. Legal sources are called constitutional
law and spilt into two categories – written law and unwritten law.

Law made by Parliament is referred to as ‘legislation’, ‘statute law’ or Acts of

Parliament. It is primarily codified law and has to go through the legislative process. The Bill
after being approved by both Houses becomes law after receiving Royal Assent. Examples
of Acts of parliament has been a heavy influence on constitutional matters are Bill of Rights
1689, Magna Carta (1215) and Act of Settlement 1700. Delegated legislation is secondary
legislation made by Ministers, local authority, government departments but with the
authority of Parliament.
Making treaties, declaring war, deploying the military forces and regulating the civil
service are all examples of royal prerogative 15 powers left over from when the monarch was
directly involved in administration. The prerogative's distinguishing feature is that it can be
exercised without the approval of Parliament16. In modern times, prerogatives are normally
exercised by members of the executive under the Queen's authority because the Queen has
limited power17.
13
Mark Sandford and Cathy Gormley-Heenan, '‘Taking Back Control’, The UK’S Constitutional Narrative And
Schrodinger’S Devolution' (2018) 73 Parliamentary Affairs.
14
ibid
15
Gail Bartlett Michael Everett, 'The Royal Prerogative' [2017] House of Commons Library.
16
T. Poole, 'United Kingdom: The Royal Prerogative' (2010) 8 International Journal of Constitutional Law.
17
ibid
 The following source that will be discussed is law decided in courts, which is under
unwritten law. It is normally referred to as ‘common law’ or ‘case law’. Due to the non-
specific nature of statutes, as it has to accommodate a wide range of circumstances, judges
have to interpret the will of Parliament. Courts exercise their judicial function of statutory
interpretation18 and when interpreting legal reasoning of previous cases. Between case laws
and legislation, legislation will prevail due to parliamentary supremacy.
Convention19 are not mentioned in any written document that has legal status and is
part of but is important for a country that has no codified constitution as it assists in
comprehending how the state works. According to Ivor Jennings, convention ‘enable a rigid
legal framework ... to be kept up with changing social needs and changing political ideas’
and ‘enable the men who govern to work the machines’20.

Why is codification being considered?

Due to the lack of a written form of the constitution, it has become far too simple for
governments to enact political and constitutional reforms that satisfy their own political
needs21. Recently, there have been three major constitutional crises attempted by the UK
government22 that have been fortunately avoided by Parliament. This is a blatant display of
abuse of power. It is one of the main reasons why the existing constitution is so heavily
criticised. Besides that, it is not made accessible to all and could only be understood by a
limited number of people as the language, making it less transparent 23. These are only one
of the many reasons why there have been proposals to codify constitutions since the
1970s24 by individuals or groups who have a strong political stance.

Arguments in favour of an unwritten constitution

As mentioned before, sources of the UK constitution are scattered due to the nature
of their constitution. This would require a significant amount of time and money to compile

18
'Judicial Review And Statutory Interpretation' (1995) 16 Statute Law Review.
19
The Cabinet Manual and the Codification of Conventions
20
ibid
21
'A New Magna Carta?' [2014] Political and Constitutional Reform - Second Report.
22
David Allen Green, 'The UK’S Constitution Is Not Working' (Ft.com, 2020)
<https://www.ft.com/content/27e55f9b-018e-4f52-80c7-97844629f351> accessed 17 March 2022.
23
Ibid (14)
24
Andrew Blick, 'Codifying - Or Not Codifying - The UK Constitution: A Literature Review' [2011] Senior
Research Home.
all the information to form a proper document. This exercise will have to be delegated to
many different people such as experts, publication of consultation documents and many
more. Moreover, there are other much more important issues for the government to take
care of instead of compiling the codification together.

The unwritten constitution has worked well for the entire history of Britain and has
been adapting with each change of social and political conditions. This is evidence that it has
served the nation well for centuries. If a codification is implemented, there is a significant
increased difficulty in amending the law. Thus, there will definitely be a change in flexibility,
arguably one of the best characteristics of uncodified constitution, making it rigid. This
factor might bring a huge risk as the old rules might not work well with the current needs of
society25 and become outdated. The government’s usual operations would be disrupted as a
result.

If UK was to choose to codify its constitutions, it would be up to judges to interpret.

Judges will be able to interpret law in their own way and this goes against the democratic
rule that is instilled in UK. This will lead to judicial tyranny and cause an imbalance of power
in the branches of government, which consists of executive, legislation and judicial 26.
Furthermore, it would be unfair to the public as the judges were not elected by them,
making them not socially representative of the public in UK.

Arguments in favour of codification

As mentioned above, the cost of compiling all the document together is expensive.
However, it could be argued that it is a small price for achieving individual rights. Human
rights are unstable in the United Kingdom without entrenchment, as any human rights
legislation might be revoked by a mere majority of one vote in parliament 27. Only a codified
constitution could guarantee this wouldn’t happen.

Parliament sovereignty is becoming a prominent problem due to the absence of a

written constitution. It states that Parliament has the authority to pass whatever law it sees
fit, and that courts cannot challenge or overturn an Act of Parliament. The written
25
Ibid (16)
26
Evan McGaughey, 'What Is The UK's True Constituition?'.
27
S. Douglas-Scott and A. Tomkins, 'Does Britain Need A Proper Constitution? - Prospect Magazine' (Prospect
Magazine, 2019) <https://www.prospectmagazine.co.uk/magazine/does-britain-need-constitution-debate-
sionaidh-douglas-scott-adam-tomkins> accessed 18 March 2022.
constitution could serve as a check and balance mechanism to limit the powers of
Parliament as they are confined within the written constitution.

Codified constitution will be able to provide clarity to the powers delegated to each
branch of the government. As of now, the government is seen taking advantage of the
blurred lines. In recent events, to prevent the government from initiating the EU withdrawal
process without parliament's authorization 28, the government was called to the Supreme
Court. All this evidence is pointing to the direction of codification as to clarify the current
constitutions’ ambiguous rules29.

Should constitutional conventions be codified?

Codification as described before in the precious paragraphs, is a very complicated

process which involves many people and high cost. The wordings in the convention are said
to be vague30 as well so there will be a definite chance of misinterpreting it. However,
codifying conventions will be able to avoid abuse of power and strengthen the separation of
powers especially the relationship between the executive and legislature. Generally, having
a codified convention will serve as a check and balance of the government power.

Conclusion

The author believes that the cons of keeping an uncoded environment outweigh the
pros. Despite the saying that goes "if it isn’t broke, don't repair it, 31" UK should seriously
consider codifying its constitution to keep up with the rest of the globe, meeting the
international standard. Conservatives may take pride in the uncodified form of the
constitution because it demonstrates that the United Kingdom has been stable for a long
time, but it is selfish because a codified constitution would make things more transparent
between the government and citizens. In the long run, this uncodified character will
eventually have a negative impact on the entire UK system.

(1936 words)

28
Ibid (22)
29
Ibid (27)
30
Megan Caufield, 'Constitutional Conventions In The United Kingdom: Should They Be Codified?' [2022] The
University of Manchester
<https://hummedia.manchester.ac.uk/schools/law/main/research/MSLR_Vol1_4(Caulfield).pdf> accessed 18
March 2022.
31
Ibid (16)
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