constitution uk essay

The Constitution Unit

What is the UK Constitution?

The UK is often said to have an ‘unwritten’ constitution. This is not strictly correct. It is largely written, but in different documents. But it has never been codified, brought together in a single document. In this respect, the UK is different from most other countries, which have codified constitutions. But not all: New Zealand and Israel also lack a codified constitution.

Codified constitutions are typically produced following a major historic turning point, such as the grant of independence, revolution, defeat in war, or complete collapse of the previous system of government. None of these things have happened to the UK, which is why it has never had cause to codify its constitution. (Our one revolution, in the 17 th century, did briefly produce a written constitution: Cromwell’s Instrument of Government).

This is the reason why the UK has not felt the need to codify its constitution. But the UK does have a constitution, to be found in leading statutes, conventions, judicial decisions, and treaties. Examples of constitutional statutes include the Bill of Rights 1689, Acts of Union 1707 and 1800, Act of Settlement 1701, Parliament Acts 1911 and 1949, Human Rights Act 1998, Scotland Act, Northern Ireland Act and Government of Wales Act 1998. Examples of conventions include that the monarch acts on ministerial advice; that the Prime Minister sits in the House of Commons; that the Queen appoints as Prime Minister the person most likely to command the confidence of the House of Commons. These and other conventions have themselves been codified in documents such as the Cabinet Manual.

Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate law-making power vested in the UK parliament to create or abolish any law. But parliament can limit its law making power, as in the Human Rights Act; or devolve legislative power, as in the Scotland Act. Other core principles of the British Constitution include the rule of law, the separation of government into executive, legislative, and judicial branches, the accountability of ministers to parliament, and the independence of the judiciary.

The main disadvantage of an uncodified constitution is that it is harder to understand. Another is that it is easier to amend than in countries with written constitutions with elaborate amendment procedures. But this flexibility can also be seen as an advantage: it has enabled the removal of hereditary peers from the House of Lords, introduction of the Human Rights Act, devolution to Scotland, Wales, and Northern Ireland, and creation of the Supreme Court.

The UK constitution has multiple guardians. These include the Supreme Court , in its constitutional judgements (such as Miller/Cherry in 2019 ); the House of Lords Constitution Committee, and the Commons Public Administration and Constitutional Affairs Committee; the Lord Chancellor; and specific constitutional watchdogs, such as the Judicial Appointments Commission, or the Electoral Commission.

Since the vote to leave the EU, some have suggested that the UK faces a ‘constitutional moment’ which might lead to a codified constitution. But the difficulties of agreeing a written constitution should not be underestimated, and the democratic benefits of a written constitution should not be exaggerated.

Related explainers:

What is a constitution?
What are constitutional conventions?

Related research:

Designing a constitutional convention
Democracy in the UK After Brexit
Rebuilding constitutional standards: five questions for the next Conservative leader

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The United Kingdom Constitution: An Introduction

Professor of Constitutional Law and Theory

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This volume provides an introduction to the United Kingdom’s constitution that recognises and embraces its historical, social, political, and legal dimensions. It critically examines the radical changes to the UK constitution that have occurred over the last thirty years, paying particular attention to the revival of the constituent territories of the UK—Wales, Scotland, Northern Ireland, and England—and to the increasing role played by the judges in constitutional disputes. The UK constitution is presented as shaped by a set of constitutional principles, including state sovereignty, separation of powers, democracy, subsidiarity, and the rule of law, principles which set the overall structure of the constitution and inform statutes and the decisions of judges. Adopting a principled approach to the UK constitution allows us to see both the clarity of the constitution’s structure and also helps explain its complexities.

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The Constitution Explained

What are constitutions? Why do they matter? What are the components of the United Kingdom’s (UK) constitution? How does it all fit together? What are the main debates about the constitution and how has it developed over time? These are important questions, but it can be hard to find answers to them.

The Constitution Explained attempts to provide answers to these questions, and more. Starting with the basics and moving on to its various parts, we’ve broken down the UK constitution to try and provide an introduction that’s useful to a range of different audiences. In each section listed below you’ll find an overview of the different topics covering frequently asked questions, contemporary debates, historical trends and including a range of resources to help you understand what it’s all about.

Unlike many others countries, the UK famously lacks a ‘codified’ or ‘written’ constitution. This does not mean it does not have a constitution – just that it is spread across a number of places. This can make it particularly hard to understand. But it is important for the effective functioning of democracy that the political system is understood. Otherwise, it can be difficult to know when governments are breaking the rules or not doing what they should be doing. It can also make it hard to get involved in politics and to bring about change. We hope the Constitution Explained will be a useful tool for those looking to improve their understanding of the contemporary UK constitution and its history.

The sections have been designed with the A level Politics syllabus specifically in mind. But they should also be helpful to undergraduates, and anyone else besides who wants to find out more.

Click on any of the headings below to take you to the topic page.

The UK constitution

This page looks at the nature of the UK constitution compared to that of other countries, focusing on the pros and cons of having an ‘uncodified’ constitution. It also outlines the various sources of the UK constitution in statute, convention and the common law and gives an overview of how it has changed over time and what the key developments have been.

On this page, the role and functions of the UK Parliament are explained. The debate around reforming the House of Commons and the House of Lords is also covered. You’ll find recent changes to the way Parliament operates outlined as well.

The executive

This page details the roles and powers of the UK executive and in what documents we can find them set out. It also looks at the principles of cabinet government and collective cabinet responsibility, and explores the question of whether these principles are still adhered to as much as they once were.

This page gives on overview of what rights are and why they matter in a constitution. It looks at the European Convention on Human Rights and the Human Rights Act 1998 and how the Act fits into/has changed the UK constitution. There is also a more general discussion about whether rights should be ‘entrenched’ or not.

The monarchy

This page explains the position of the monarchy in the UK constitution. It analyses how the UK’s constitutional monarchy is constructed and offers answers to some popular questions about the role of the King or Queen plays in UK democracy.

The judiciary

This page focuses on the origins and function of the UK Supreme Court. It explains judicial review and touches on the Human Rights Act and the question of whether judges have become too politically active. The page on rights (below) has more detail on this. Also introduced is the concept of sovereignty and some of the debates surrounding it.

Electoral systems

This page explores what electoral systems are and why they are important. It sets out the main features of all of the electoral systems in use in the UK. In particular, readers will get an introduction to some of the criticisms of First-Past-the-Post and the debate about whether the UK should more to a more proportional system for parliamentary elections.

On this page, you’ll find out what devolution is and how it came about. Devolved elections, powers and the relationship of the devolved governments to central government are all looked at. How devolution fits into the bigger picture is also considered, including the debate around federalism, asymmetry, and whether there should be more devolution to England.

Direct democracy

The differences between direct democracy and representative democracy are set out on this page. Also explored are the different methods of direct democracy and their use in contemporary contexts, including in the UK. The debate around referendums, popular democracy and the ‘wisdom of the crowd’ is also touched on here.

Political ideas

This page gives some further insight into the political ideas that underpin different approaches to the UK constitution.

More detail

If you’re looking to dig into these topics in more detail, we recommend getting a copy of Professor Andrew Blick’s recent book UK Politics , which provides a comprehensive overview of the UK political system. The book will be especially helpful for recent Politics undergraduates.

Finally , if you have any comments or feedback on the Constitution Explained please don’t hesitate to get in touch by emailing [email protected] .

The Constitution Society

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Working paper series

The British Constitution: A Very Short Introduction

8 november 2023.

Professor Martin Loughlin has published a new edition of The British Constitution: A Very Short Introduction (2nd ed. OUP, 2023).

The British constitution is regarded as unique among the constitutions of the world. What are the main characteristics of Britain's peculiar constitutional arrangements? How has the British constitution altered in response to the changing nature of its state - from England, to Britain, to the United Kingdom? What impact has the UK's developing relations with the European Union caused? These are some of the questions that Martin Loughlin addresses in this Very Short Introduction . As a constitution, it is one that has grown organically in response to changes in the economic, political, and social environment, and which is not contained in a single authoritative text. By considering the nature and authority of the current British constitution, and placing it in the context of others, Loughlin considers how the traditional idea of a constitution came to be retained, what problems have been generated as a result of adapting a traditional approach in a modern political world, looking at what the future prospects for the British constitution are. The new edition includes a disucssion of the impact of developments over the decade since its first publication, examining Brexit, the Scottish independence referendum of 2014, and the settlement in Northern Ireland.

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Evaluating the UK Constitution

It is flexible, so can be amended to reflect changing views and values (for example, introducing devolutions in response to rising Scottish nationalism)
It has allowed for a long period of democratic rule. Power is vested in the elected Commons, the influence of unelected judges is kept to a minimum
It allows for effective government, as the government is not restricted by a codified constitution, so can easily get things done
It is based on history and tradition, and has been tested by time- it has survived because it works

Weaknesses:

As it is not written as one document, there can be uncertainty as to what the UK constitution says. For example, the uncertainty over what should have happened after the __2010 __general election which produced a hung parliament
Power is too concentrated in the executive, meaning there is no effective checks and balances on its power- this is known as elective dictatorship. A government can almost act as it pleases in between elections
Power is overcentralized- it is all concentrated in the executive, more specifically the Prime Minister, who has control over every aspect of government (this has been slightly lessened with devolution)
Historically, human rights have not been protected that well, as until __1998 __there were no laws guaranteeing people’s rights. This has been partly addressed through the Human Rights Act, but this can be set aside or overturned by a government relatively easily

How the constitution has changed since 1997

Constitutional reform since 1997

Under Labour:

House of Lords reform, 1999: All but 92 hereditary peers (Lords members who inherited their seat through inheriting a title) were removed from the Lords. This made the Lords more assertive (as they are now mostly appointed, so making them slightly more legitimate), although it remains undemocratic as it is entirely unelected. Several proposals for ‘stage two’ of Lords reform were put forward, ranging from a wholly to partially elected chamber, but none have been agreed upon.

Electoral reform: More proportional electoral systems were introduced, for example the party list (for European Parliament elections), additional member system (Scottish Parliament, Welsh Assembly, Greater London Assembly), single transferable vote (Northern Ireland Assembly), and supplementary vote (London Mayor). This gives the UK constitution a more representative and democratic nature, although first-past-the-post remains in place for Westminster elections.

Devolution: Regional assemblies were established, following referendums on their introduction- the Scottish Parliament and Welsh Assembly ( 1999 ), and the Northern Ireland Assembly ( 1998 ). This transferred some powers away from the UK Parliament, although Parliament retains overall sovereignty.

Human Rights Act, 1998: This established fundamental rights in law for the first time. This gave judges more power to protect human rights and challenge government actions, although the Act could be amended or set aside by government.

Constitutional Reform Act, 2005: This created the Supreme Court, which replaced the law lords as the highest court of appeal in the UK. This made the judiciary more independent from government.

Under the Coalition:

Fixed Term Parliaments Act, 2011: This set the date of the general election as five years from the previous one. Prior to this Prime Ministers could call election at any time within five years, so a key power of the PM was removed. However, this can be overridden with 2/3 of the Commons’ approval (as happened in 2017 ), or of the government is defeated on a vote of no confidence.

Further devolution: The Welsh Assembly was given more law-making powers following a referendum in March 2011 , similar to some of the powers of the Scottish Parliament. More powers were promised to the Scottish Parliament following the 2014 __independence referendum, and granted in the Scotland Act __2016 . This in turn triggered proposals by some for ‘English votes for English laws’ whereby only England’s constituency MPs could vote in Westminster on issues that only affected England, elements of which were established in 2016 .

Proposed changes that didn’t happen: Reform of the Westminster electoral system (from FPTP to AV) was put to a referendum in 2011 , but this was rejected by the public. House of Lords reform was discussed and legislation was proposed, but was withdrawn when it became clear that it would be defeated in the Commons. The Conservatives proposed amending the Human Rights Act to a ‘British Bill of Rights’, which would have been easier to set aside, however no legislation was forthcoming.

Constitutional implications of the coalition: As a result of the formation of the coalition, it is likely that if such an arrangement were made in the future then the ‘blueprint’ of__ 2010-15 _would be followed. Therefore, the coalition created new conventions in the constitution. For example, the formation of the government took place following negotiations between the Conservatives and Lib Dems, during which time Gordon Brown remained as PM. Collective responsibility was also weakened, as there was less expectation that ministers would publically support _all government policy due to ideological differences between the parties. The executive was organised in a different way, for example the creation of the ‘quad’- Cameron, Nick Clegg, George Osborne and Danny Alexander, and the coalition committee. These allowed for cross-party discussion and policy formulation. The PM’s powers were more shared with Clegg (the deputy PM), with the two men almost functioning as equals in government. The House of Lords was more willing to challenge bills, as the manifestos of the two parties were amended following the formation of the coalition, so had not been fully approved by the electorate.

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History Magazine

The Constitution of the United Kingdom

Many nations around the world govern through a written constitution, which lays out the fundamental laws of the land and rights of the people in one single legal document. So why doesn’t the UK have a written constitution? The answer can be found in our history…

Ellen Castelow

“The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law.” Jack Straw, Secretary of State for Justice, 2008

Emerging nations around the world have had to start from scratch and produce a written constitution setting out their laws and citizens’ rights. Some more established countries have had to adopt a written constitution due to revolt or war. However Britain escaped the revolutionary zeal of the late 18th and 19th centuries, and so the UK constitution, often referred to as the British constitution, has evolved over centuries.

Democracy in Britain is based on Acts of Parliament, historical documents, court judgments, legal precedence and convention. The earliest date in the history of our constitution is 1215 when the barons forced King John to accept the Magna Carta , the ‘Great Charter of the Liberties of England’, which limited the power of the king, making him subject to the law of the land. Two of its key principles, the right to a fair trial by one’s peers and protection from unlawful imprisonment, form the basis of common law in Britain. Magna Carta would also be a major influence on the US constitution.

The Provisions of Oxford in 1258 set out the basis for the governance of England. 24 members would make up a Council governed by the monarch but supervised by a parliament. The first parliament, made up of knights, lords and common men drawn from the towns and cities, was presided over by Simon de Montfort, widely regarded as the founder of the House of Commons.

The Petition of Rights of 1628 set out some further rights and liberties of the people, including freedom from arbitrary arrest and punishment.

Another landmark piece of legislation was the Bill of Rights of 1689. This followed the ‘ Glorious Revolution’ of 1688, in which William III and Queen Mary replaced King James II. This bill declared that the monarch could not rule without consent of Parliament. As part of the bill, Parliament would meet regularly; there would be free elections and freedom of speech in the chamber. It outlined specific liberties for the people, including the freedom to bear arms for self-defence, freedom from taxes imposed by the monarch without the consent of Parliament and the freedom from cruel and unusual punishment.

The Act of Settlement of 1701 controlled who should succeed to the throne and established the vital principle of judicial independence. The number of men entitled to vote was greatly increased by the 1832 Great Reform Act, and the Representation of the People’s Act of 1928 gave all men and women over the age of 21 the right to vote.

These and other written laws form just part of the constitution of the United Kingdom. Political customs or conventions are the unwritten rules that are vital to the workings of government. The office of Prime Minister is one of these conventions: legally the Monarch appoints the Prime Minister , who by convention is the leader of the largest party (or coalition of parties) after a General Election and commands the confidence of the House of Commons.

Parliament is made up of three entities: the Monarchy, the House of Commons and the House of Lords. To become law, bills have to be passed by both Houses and then given Royal Assent. By convention and in practice today, the monarch automatically gives their consent, although in theory they have the absolute and legal power to refuse.

By convention, all ministers in government must have a seat in either the House of Commons or the House of Lords. The Prime Minister and Chancellor of the Exchequer must have a seat in the House of Commons. This convention makes the elected government responsible and accountable to Parliament. This is known as the Westminster system of parliamentary government.

Entry into the European Economic Community in 1973 and membership of the European Union brought Britain under the jurisdiction of the European courts in many areas. Some people today see this as an undermining of parliamentary sovereignty, commonly regarded as the defining principle of the British constitution, and cite this as one of the arguments for Brexit (Britain leaving the European Union).

What would be the advantages of a written constitution? Those of us who have followed the Brexit debates in the House of Commons on television have done so in disbelief and confusion. Many today believe that parliament is at best in crisis and at worst ‘not fit for purpose’, and that a written constitution might clarify the position. Others claim that a system that has evolved over centuries is the best for Britain and a written constitution covering all our laws, liberties and conventions would be incredibly difficult to produce.

Whatever your point of view, the British system of government at Westminster (‘The Mother of Parliaments’) has formed the basis of parliamentary democracy of many countries around the world.

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Arguments for and against a codified constitution

This House Would Codify The Constitution | Debate | Cambridge Union 2019

The UKs Flexible Constitution has had its day. Bronwen Maddox FT

Case study Party-gate A constitutional Crisis ?

Unchecked power? How recent constitutional reforms are threatening UK democracy

T he proposal that the UK should have a codified constitution remains an academic debate, a debate between those who study politics and with little support from politicians other than the Liberal Democrats who have long supported the introduction of a codified constitution and a bill of rights. However pressure groups, such as Charter 88 have been formed to argue the case.

Arguments against a codified Constitution-

It is simply not possible because of the sovereignty of Parliament it is not possible to create entrenched 'higher law .Parliament, cannot bind itself. However, if a new means was created- such as a constitutional convention followed by a referendum- this might be possible- but this would still need to be legitimised by Parliament as with all referendums-Or would the popular sovereignty of the referendum entrench the new constitution politically if not legally? The end result could never be a sovereign constitution as exists in the USA.

It may be impossible simply because there is no political consensus (agreement) on what it would look like. Writing a new constitution can be a torturous process even for 'new 'nations-one with deep seated traditions of class and ideological politics would find it impossible. Would the new constitution ensure limited government - a conservative principle or the right s of citizens to social services and free health care - a labour principle. And both dominant parties would hesitate to embrace any change which allowed there position to be challenged such a electoral reform. Note how Labour lost interest in PR when it was in power.

There is no overwhelming desire for codification - there is always going to be more pressing issues and the size scope and changes which codification would entail make it a time consuming and unappealing proposition. Popular opinion tends only to favour change when the old system is clearly broken., which is why most new constitution follow a new beginning or a political crisis.

Supporters of codification argue that the UK political system is in a state of crisis which can be seen in calls for independence in Scotland and Wales, Brexit, decline in participation and the decline in trust in politics. The root problem is too much power resides in the hands of government and the great advantage of a codified constitution is the limit it places on government. As the central purpose of a constitution is to limit government power, the constitution must be independent from the government itself. How can we trust a government that can enlarge its own powers at will? This is the central defect of the uncodified constitution, and its roots lie in the principle of parliamentary sovereignty . The only way of overthrowing parliamentary sovereignty is through the creation of an entrenched and judiciable constitution. Not only would this put the powers of government bodies and the relationship between the state and its citizens beyond the control of the government of the day, but it would also allow judges, who are ‘above’ politics, to become the guardians of the constitution.

However critics of this argument usually warn that it is an artificial, legalistic device that would, anyway, lead to the tyranny of judges over democratic politicians. They point to the power of the unelected US Supreme Court.

They also argue that the goal of limited government can be achieved through a range of other reforms which would not result in the burden of higher law. Such as strengthening of checks and balances through Lords reform, local government devolution, stronger rights protection and electoral reform. Since much of this seems to be happening, constitutional reform should continue to run with the grain of the ‘unwritten’ or ‘unfixed’ constitution, rather than embrace an entirely different constitutional framework.

And flexibility is an advantage. The US codified constitution has only been amended 27 times since 1787, and ten of these amendments were made in 1791, to include the Bill of Rights. In contrast, the UK constitution has evolved throughout history, and, due to Parliamentary sovereignty, continues to be regularly amended, to meet the changing expectations of citizens. Since 1997 there have been a wide range of significant constitutional reforms made in response to public pressure, including the devolution of power to Scotland, Wales and Northern Ireland, and the UK’s pending withdrawal from the EU. Our uncodified constitution also gives Parliament the flexibility to respond to crises, without being limited by higher constitutional laws. In America, the constitutional right to own weapons has made it difficult for Congress to respond to an increasing number of mass shootings. In contrast, Parliament reacted to the 1996 Dunblane School shooting by swiftly banning the majority of handguns in England, Scotland and Wales, as supported by a majority of the public. As society continues to change at a rapid pace, a codified constitution could soon become out of date.

If it aint broke don't fix it: Do the the political events of 2022 suggest that the UK constitution works rather well? The transfer of power after resignations of both Boris Johnson and Liz Truss and the process of electing their successors, under rules involving Conservative MPs and party members drawn up by the 1922 Committee, proved to be peaceful and rather dull and widely accepted. The constitution proved to be an effective check on executive powre since neither Boris Johnson nor Liz Truss were supported by their parliamentary parties and therefore unable to continue in office. Both were required to step down to allow the next most suitable leader to take their places. so much for ' Elective Dictatorship !'

The success of the Scottish National Party has not resulted in violence. The conduct of the independence referendum and the SNP government can be compared with Spain where pro-independence Catalan leaders felt compelled to circumvent legal routes to independence and were imprisoned for sedition and disobedience in 2017 for defying the refusal of the Spanish government to engage in dialogue about a Catalonian independence referendum.

However… this flexibility arguably allows Parliament to make significant constitutional reforms too easily. The US Constitution is intentionally difficult to amend, requiring a two-thirds vote in both Houses of Congress, and three-quarters of States to approve. The Founding Fathers of the US wanted to ensure that amendments would receive intensive scrutiny and would not undermine the Constitution’s fundamental principles. They wanted to entrench particular ideas and principles that many Americans consider to be as relevant today as they were back in the 18th Century. (The doctrine of Originalism ) In contrast, the UK Parliament can amend the constitution by simply passing a bill. An unwritten convention has begun to develop where referendums are held to approve significant constitutional reforms. However, as a convention, there is no legal guarantee that this additional step will always be taken.

Arguments for a codified Constitution

It will educate and inform

Our uncodified constitution makes it difficult to learn about our rights, and how government works. In America it is relatively easy for school pupils to learn about their system of government and constitutional rights because all of the necessary information is contained in the codified US Constitution. The first articles establish and explain the powers of the different branches of government, while the Bill of Rights explains the rights of the people. In contrast, our uncodified constitution has so many different sources, including statute laws, common law, unwritten conventions, EU law and authoritative texts, that it is much harder for the public to understand.

However… the Human Rights Act (1998) has raised the general awareness that rights exist and the specific understanding of some rights- like the right to family life. The Human Rights Act (1998) has given UK citizens a clear and concise list of rights, which can be defended in UK courts. However, these rights are not fundamental law, and the UK Supreme Court cannot strike down any laws that undermine them. Also the Cabinet Manual has unofficially codified many of the most important rules and conventions that the government operates by. Although it has not been approved by Parliament and does not have clear legal standing. Also significant is the fact that many previously vague royal prerogative powers have recently been defined and limited by statute law, giving them a much clearer written source.

Conventions are too weak

We are overly reliant on unwritten conventions that are not legally enforceable and that few understand. The Government broke conventions when it prorogued Parliament in 2019 and when it threatened the amend the Brexit agreement and break international law . Conventions are not legally enforceable. The Scotland Act (2016) formally recognised the existence of the Sewel Convention - the rule that the UK Parliament will not normally legislate on devolved matters without first seeking the consent of the Scottish Parliament. However, the Supreme Court ruled in 2017 that it could not enforce this convention, after the Scottish Government argued that a legislative consent motion was required before the UK Government could begin the process of withdrawing the UK from the EU.

It is also argued that that matters as important as the role of the monarchy, the use of ancient prerogative powers such as prorogation, and the circumstances under which the UK enters into armed conflict, are left to unwritten conventions that could ultimately be broken.

However…conventions are not often broken, offer a degree of flexibility, and are arguably inevitable. Convention exist in countries with codified constitutions-such as the USA where conventions govern the existence of the cabinet, deference to senators when appointing in their state (Senatorial Courtesy). The convention that US presidents serve only two terms latest until 1940. The strength of many conventions in the UK is evident by how rarely they are broken – they often stand the test of time and are respected and upheld. It is not necessarily the case that a codified constitution would be more reliable, or that it would prevent conventions from developing in the first place.

It would protect the separation of powers - and an independent judiciary .

Mostly in the UK the argument is that a separation of powers should protect the judiciary- whose appointment can still be vetoed by the Justice Secretary and whose judgements are can be set aside by Parliament. However, while the separation of executive and legislature is a feature to the US constitution it is not adopted by the vast majority of democracies. The US Constitution establishes a clear separation of powers. Any members of the executive branch cannot also be members of the legislative branch, meaning the President can propose bills, but is unable to vote in Congress. Both Houses of Congress must agree on bills for them to become law, and the Supreme Court can strike down laws that conflict with fundamental constitutional laws. In contrast, our executive and legislative branches are fused, with the prime minister and other government ministers able to sit and vote in the House of Commons. The House of Lords can only delay bills, and has even more limited power over ‘money bills’. The Supreme Court cannot strike down laws due to Parliamentary sovereignty and our lack of fundamental laws. A new codified constitution could more clearly separate power between the three branches of government, creating new, stronger, checks and balances.

However the argument for separation of legislature and executive tend to face the prospect of gridlock and and entrenched constitution might lead to judicial activism. In the US there is gridlock when the president and Congress, or the two houses of Congress, can't reach an agreement. Any attempt to weaken the government’s influence in the House of Commons, or to strengthen the House of Lords, could make it much harder for elected governments to carry out their manifesto. A codified constitution would also politicise the judiciary, which would need to interpret the language of the static, codified constitution, and determine whether laws are constitutional. This could lead to accusations of judicial activism , where unelected judges are accused of using questionable interpretations of the constitution to promote their own political agenda.

There's no need because the HRA has answered many of these problems

The Human Rights Act (1998) has already strengthened our rights. The Human Rights Act (1998) allows the Supreme Court to issue a “declaration of incompatibility” when laws undermine human rights. Parliamentary sovereignty means that it is then up to Parliament to decide how to respond. However, past experience has shown that, politically, it is not easy to ignore these declarations, and Parliament has tended to swiftly approve whatever changes are necessary to make the law compatible. Therefore, while the UK lacks fundamental laws, the courts are able to use the list of rights contained in the ECHR to challenge legislation. Similarly, just as US legislators must ensure that bills comply with the US Constitution, UK Ministers must submit a ‘statement of compatibility’, explaining how their bill is compatible the ECHR. Although these statements are not legally binding, it still suggests that Parliament is behaving as if the HRA is fundamental law, even if legally it is the same as any other. However… these rights are not entrenched, and could soon be changed by Parliament. The US Supreme Court can strike down laws that undermine constitutional rights. But, in the UK, our Supreme Court cannot strike down laws that are ‘unconstitutional’ because we lack a codified constitution and because Parliament is sovereign, able to pass or repeal any law. Some campaigners argue that as long as the UK has an uncodified constitution, our rights can all too easily be amended by Parliament. Campaigns to ‘save’ the Human Rights Act (1998) are a reminder that that while the law usefully codifies many of our rights, it does not legally entrench them.

It's broken so let's fix it .

However since 1997 the rate of recent constitutional reforms has arguably increased the need for a new constitution. While the UK is not on the verge of revolution, it is arguable that recent constitutional reforms, such as devolution and the Human Rights Act, have challenged core principles of the UK constitution, and created a highly asymmetric constitutional structure which is more confusing and more unfair to such as extent that the UK would benefit from a new constitutional settlement. A new codified constitution would be able to make sense of many recent incomplete reforms, as well as any unintended consequences – like, for example, the West-Lothian Question. Arguing that the UK constitution should be left as it is, because it has served us well for so long, arguably overlooks the fact that many citizens, such as those campaigning for Scottish independence, already feel that, in spite of recent reforms, the UK’s historic constitutional settlement no longer works.

For example since Brexit and Devolution t he Sewel convention has started to break down This is an arrangement that regulates the relationship between the UK Parliament and the national assemblies of Scotland, Wales and Northern Ireland. It requires specific consent to be given from the devolved governments for any UK-wide legislation that encroaches on devolved matters, particularly health, legal and policing matters. If consent is refused, the UK Parliament can — and usually does — still pass the legislation, but reflecting ever-growing hostility, the three devolved governments now refuse this consent on multiple occasions each year, prompting calls for a full codification of the UK’s constitutional arrangements. The passage of the UK Internal Market Act (2020) also saw substantial changes to the operation of devolved competences. When the Scottish Parliament and the Welsh Assembly withheld their legislative consent, the Act passed through the UK Parliament anyway. In September 2021 the Welsh Government refused to provide legislative consent for the UK Elections Bill that made photo identification compulsory when voting in general elections in Wales, yet the Act passed anyway.

Another constitutional convention is the expectation that the government and its ministers behave responsibly and follow official advice.

■ In November 2020, Boris Johnson requested a review into his home secretary’s conduct following allegations that Priti Patel had ‘bullied’ departmental staff. Independent adviser, Sir Alex Allan, found that the home secretary had indeed broken the Ministerial Code, most often by ‘shouting and swearing’ at Whitehall officials. Despite the inquiry’s findings, the prime minister took no further action.

■ In December 2020, the House of Lords Appointments Commission refused to support the prime minister’s intention to appoint Peter Cruddas to the House of Lords. The Commission advised that it was unable to support the nomination after carrying out its vetting. The prime minister made the appointment anyway.

In recent years there has been a raft of political events, challenges and incidents that have shifted the UK’s constitutional framework faster and further than at any previous time. Such events have included:

■ Brexit and the implications for Northern Ireland’s relationship with the rest of the United Kingdom. The passing of significant pieces of Brexit and Covid-19 legislation via delegated legislation with little scrutiny, has meant that MPs ‘are not providing effective oversight of major changes in these and other areas ’ (Institute for Government).

■ the prorogation of parliament in 2019, when Boris Johnson suspended parliament for up to 5 weeks, and the subsequent Supreme Court challenge to the prime minister’s use of prerogative powers

■ recent independent reviews — into Administrative Law and Human Rights — that look set to shape future constitutional changes relating to the protection of rights

■ proposals to restrict the scrutiny powers of the senior judiciary through legislation such as the UK Internal Market Bill which prevented them declaring parliamentary laws incompatible with EU law

■ the repeal of the Fixed-term Parliaments Act to return the calling of general elections to the prime minister’s prerogative powers

■ the coronavirus health crisis that necessitated three lockdowns and a re-evaluation of the extent of emergency powers wielded by the state

■ pressure on devolved arrangements, driven by support for the Scottish National Party and by developments in English devolution

■ escalating tension between the government and the civil service leading to multiple resignations of permanent secretaries in 2020 and 2021, including permanent secretaries in the Home Office, Treasury and Justice Department.

According to UCL’s Constitution Unit in 2022, 77% questioned in a wide-ranging poll felt they had too little influence over how the UK is governed.

Historian Linda Colley's article in the New York Times in September 2022 suggested ‘the queen’s death and the accession of a less popular Charles III will contribute to increased levels of turmoil and lead to unstoppable pressure for radical constitutional change, even a new British constitution’

Cambridge University's Center for Public Law carried out a research project the 'Constitutional Law Matters project' with the aim being to evaluate whether the UK constitution is still working. The the project concluded that Boris Johnson’s tenure in Number 10 and post-Brexit political activity in general, saw a decline in the parliamentary procedures that support effective levels of scrutiny. It cites the Elections Bill that sought to ‘bring the Electoral Commission’s strategy and policy under government control’ in a bid to ‘reduce the Commission’s independence and increasing the government’s influence and power over the election process’.

These changes have given rise to the view that the UK’s traditional constitutional strengths of flexibility and a lack of codified rigidity are hampering the effective and successful functioning of the state and increased calls for constitutional settlement for the United Kingdom i.e. Codify the Constitution.

It would still be possible to amend the constitution but through a careful and considered process and only when there is general agreement.

Codification would educate the public about their rights, responsibilities, and duties as well as encouraging a greater understanding of politics and political processes.

An entrenched Bill of Rights would provide stronger protection for individual liberties than the current Human Rights Act- for example, increased police powers and control orders show how easy our liberties can be threatened.

Codification would mean greater clarity about the rights of citizens and the powers of government — for example clearing up the uncertainty arising from conventions governing the power of the PM, the

circumstances in which ministers should resign and what happens in the event of a 'hung parliament' with no clear election winner.

A constitutional court — as in Germany and the USA — staffed by senior judges with expert knowledge, would be able to assess the constitutionality of actions by Parliament and the executive, judging their behaviour by a clear set of rules. This would increase the legitimacy of the political process.

This would put an unjustified degree of power in the hands of unelected, unaccountable judges who may be out of touch with public opinion. A codified constitution would be a direct challenge to parliamentary sovereignty, on which the UK system of government has been founded because it would bind future parliaments.

Much of the historic constitution is written, with acts of Parliament and works of authority providing clear guidance. Few codified constitutions are self-explanatory and (as in the USA) they require extensive interpretation.

A strong executive can act decisively in times of emergency- such as a terrorist threat. They can also respond quickly to changing circumstances.

An uncodified constitution is more flexible and can be modernized or reformed more easily, for example, the reforms to the UK constitution after 1997 such as devolution.

There is almost no public demand for codification and it may well be too difficult since there is no political agreement about what a codified constitution or Bill of Right should look like.

QUB LAW SOCIETY'S EIGHTEENTH EDITION

V E R D I C T

Oct 22, 2020

First Class Constitutional Law Essay LAW1021(Awarded a 73)

Updated: Oct 30, 2020

Submitted By: Silvia Martins

Ekins has argued 'Parliament should take seriously its responsibility for maintaining the balance of the constitution' and that 'parliamentarians should act to limit judicial power and thereby help to restore the political constitution and the common law constitutional tradition'.

What is the role of the judiciary in the UK constitution? Does the balance between the judiciary, executive and parliament need to be rebalanced?

Ekins, (2019). Protecting the Constitution: How and why Parliament should limit judicial power. London: Policy Exchange.

Introduction

The courts’ constitutional role has expanded greatly over the past few years. Today, and perhaps more than ever, the courts hold a position of central importance in relation to the concept of the rule of law and protection of individuals’ rights; principles which rank supreme in the UK’s constitutional order. Contemporary societal attitudes have possibly led to this change, along with the substantial increase in executive powers and the passing of the Human Rights Act 1998 (hereinafter HRA). The judiciary have developed grounded lines of judicial interpretation which are quasi-constitutional in nature to protect these fundamental rights. The rights enshrined in the HRA can only be enforceable through access to an independent judiciary; which has factually existed since 2005.

The doctrine of parliamentary sovereignty, the constitutional bedrock on which the UK’s constitution lies, has created notable political and legal debate. Thus, the ultimate power rests in the hands of the Westminster Parliament. Such a doctrine, in contemporary 21st century society, needs to be treated with caution when constitutional principles are raised. The courts have asserted themselves as the ultimate oversight body of Parliament, ensuring that the rule of law runs through all veins of the state.

This essay intends to make a briefly analysis on the role of the judiciary and how it has significantly contributed to the balance of the UK constitution. It is important to point out that this essay does not reject legislative sovereignty to establish judicial supremacy. What it suggests however, is a decentralisation of powers.

Constitutional role of the judiciary

When asking what the constitutional role of the judiciary is, it could be said that ‘Parliament makes the laws, the judiciary interpret them [1] ’. Nevertheless, judges themselves make law through the English common law tradition. This is done literally when courts interpret legislation (where the meaning of legislation is unclear or are deemed to be incompatible with constitutional principles, such as those in the HRA). Judges can go beyond the plain meaning of a statute when they interpret law in accordance with the HRA, this can be seen in the case of Ghaidan v Godin-Mendoza [2] . Here the court ruled that s.3 of the HRA is to be interpreted widely. It was ruled that the courts may read into words, or adopt a meaning that is linguistically strained, even if there are no ambiguities in the legislation. This is permitted even if it means that the court must depart from the apparent intention of the legislation.

Section 3 HRA gives the courts extensive powers — and, indeed duties — of constitutional interpretation. The word ‘possible’ seems overly broad, allowing the judges to apply their personal interpretation in the widest “possible" way (in accordance with the Convention); giving them the widest possible interpretative techniques, including reading existing provisions and even reading into the words which change their meaning. Subsequently, s.3 does not give a specific set of boundaries to the way that judges should interpret, and this permits the courts to exercise quasi-legislative powers, which might challenge the strict separation of powers.

Judicial review (JR) is another mechanism which allows the courts to go beyond mere interpretation. It is the key function of the courts to exercise their supervisory jurisdiction over public bodies and to ensure that those bodies observe the substantive public law principles. JR gives the courts the power to interpret the unwritten ‘constitution’ and declare void actions of the executive [3] and other public bodies if they are deemed to conflict with it. Regarding primary law, the courts can only make a declaration of incompatibility when Parliament legislates against the HRA, thus preserving parliamentary sovereignty [4] . Incompatible legislation remains valid/enforceable, whether it has been subject to a formal declaration of incompatibility.

When it comes to reviewing secondary legislation, the Supreme Court appears to share some features of a constitutional court. Any Acts made by the devolved legislatures are subject to judicial scrutiny on the grounds of its “constitutionality”. [5] The devolved bodies are subject to JR on the “ground that they have strayed beyond their legislative competence” [6] , transpiring that a devolved legislature has surpassed their delegated competencies. This will be invalidated by the court as ultra vires .

Constitutional Acts (as recognised in Thoburn v Sunderland City Council [7] ) require sensitivity because ultimately the courts could find themselves ruling on a point of law that alters the fundamental balance of devolution structures and ultimately the UK Constitution. Regarding the devolution Acts, the courts need to adopt a more sensitive approach. Robinson v Secretary of State for Northern Ireland [8] proves that the court exercised caution when dealing with constitutional statues such as the Northern Ireland Act 1998, otherwise, the court could have easily caused significant political instability in Northern Ireland. [9]

The Supreme Court can be seen to “play an essential role in ‘fleshing out’ the, sometimes skeletal, requirements of the ‘unwritten’ constitution” through the development of the principles of JR; rights recognised by the common law and through the requirements of the rule of law and separation of powers [10] . As has been demonstrated, JR is a fundamental function within the UK’s constitutional order, it is a method of holding public bodies accountable for their decisions. The development of JR principles provides some basic protection for individuals and allows people to have their rights vindicated by an impartial judiciary.

The urgent need for a constitutional change

In the UK, there is no codified constitution setting out the role and powers of the judiciary, executive or parliament. The country follows Montesquieu’s classical exposition of the separation of powers doctrine, nonetheless, defining the balance between the three branches becomes problematic. It should be kept in mind that with a lack of a constitution it is expected to see a certain degree of judicial interference in the political sphere, especially because the different elements that constitute the UK constitution (common law, statutes and conventions) may contradict each other and this is where judicial intervention might be necessary to ensure the smooth running of the state. Brexit procedures are the practical example of this.

In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [11] it was argued that the exercise of the prerogative power to prorogue was a political, not legal, question. ‘If Parliament had a problem with it, it was for Parliament to sort it out’. This did not happen, in fact, the Supreme Court held the actions of the Prime Minister unlawful, which makes one question, why the courts had to intervene with this political issue if the Parliament is considered supreme?

Dicey’s orthodoxy declares that Parliament is sovereign; it has the power to make/unmake any law and do so without the possibility of its decisions being overridden or set aside by another body or person. [12] This theory does not hold balance as key to a successfully operational constitution. Firstly, the word ‘sovereign’ , with its absolutist undertones , could be viewed as being incompatible with the separation of powers, it is inconsistent with, or destructive of, separation of powers as it prevents any other bodies formulating a system of checks and balances on Parliament’s actions. Secondly, it is appreciated that the powers of each branch of government are determined by the principle of legality. Respective powers of parliament, executive and judiciary must be consistent with the principle of legality rather than the concept of sovereignty [13] . Thirdly, the House of Lords is not elected, so how can parliament be considered as the people’s representative if it is not fully elected?

Lord Woolf wrote that: "if Parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was without precedent". [14] This might be paradoxical but it is important to note that the rule of law is also the keystone of the unwritten British constitution; and that is for the courts to protect and uphold that fundamental principle when an Act of Parliament is deemed to be unconstitutional. [15] Of course, this naturally leads to the predominance of the judiciary in the constitution, which goes against the desire of many, such as Ekins, for instance. Judges may not be elected , but they have consistently demonstrated their trustworthiness and credibility as guardians of the rule of law and protection of fundamental rights. Despite that, it is not advisable to place the judiciary in a central position within the constitution, as judges in fact do not represent the citizenry through the electoral system. [16]

A new political system where parliament would be supervised can be created through adopting a written constitution. In this system courts would make a “declaration of unconstitutionality” instead of a “declaration of incompatibility” when Parliament legislates against constitutional norms. [17] A “declaration of unconstitutionality” though judicial review would be a great remedy to protect fundamental rights. The constitution would be regarded as supreme and the sovereignty would be in the constitution, the individual bearer of rights, and law, rather than in any specific institution [18] . So, neither parliament nor the courts would have the 'last word' on any matter. This would doubtless maintain/preserve the balance of the constitution and all institutions (including parliament) would be bound by it.

It is difficult to establish the precise boundaries between the respective powers of the three branches without a codified constitution. So, the courts can , therefore, easily intervene in the political arena. The courts have been prodigious in calling the executive to account, however some matters are not justiciable as seen in Miller (No2), as it is categorised as ‘too political’.

Although the idea of parliamentary sovereignty was formed to allow supremacy of people’s interests, it is necessary to remember that Parliament is not fully elected. Thus, it is not convenient that parliament makes/unmakes any laws as it wishes, this might go against to the people’s desires in general or even contradict their individual liberties. As Rawls says “[…] in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining […]”. [19]

Opposing what Ekins says, the judiciary does not pose a danger to the traditional model of the UK constitution if judges continue to uphold the rule of law. In fact, it is the UK’s constitutional tradition that needs to be altered with by a written constitution or a Bill of Rights, which would, it is hoped, rebalance the powers of the judiciary, executive and parliament.

Table of authorities

Attorney General v National Assembly for Wales Commission [2012] UKSC 53

Duport Steels Ltd v Sirs [1980] 1 WLR 142

Ghaidan v Godin-Mendoza [2004] 2 A.C. 557

Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41

R. (on the application of Jackson) v Attorney General [2005] UKHL 56

Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390

Thoburn v Sunderland City Council [2002] WL 45403

Human Rights Act 1998

Bibliography

A.V. Dicey, The Law of the Constitution (1885)

Allan T., The Sovereignty of Law Freedom, Constitution and Common Law, Oxford University Press, (2013)

Bogdanor V., ‘The New British Constitution’ (Hart Publishing, Oxford and Portland, Oregon 2009)

Rawls J., ‘A theory of Justice’, Harvard University Press, (1971)

Journal Articles

Ekins R, Judicial supremacy and the rule of law, L.Q.R. [2003], 119, 127-152

Jenkins D., Common law declarations of unconstitutionality, International Journal of Constitutional Law, Volume 7, Issue 2, April 2009, pages 183–214

Lakin S., ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 709-734 < https://www.jstor.org/stable/20185394 > accessed: 25 April 2020

McCorkindale C. and others, ‘The courts, devolution, and constitutional review’. University of Queensland Law Journal, (2017)

Woolf L., ‘Droit Public – English Style’, Public Law (1995)

Masterman R., 'The UK Supreme Court: A Constitutional Court In All But Name? - Durham University' (Dur.ac.uk, 2020) < https://www.dur.ac.uk/research/news/thoughtleadership/?itemno=40221 > accessed 15 April 2020

[1] Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157 p.14. [2] [2004] 2 A.C. 557. [3] See R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. [4] See HRA 1998 s.4. [5] Vernon Bogdanor, ‘The New British Constitution’ (Hart Publishing, Oxford and Portland, Oregon 2009) at p.115 [6] Christopher McCorkindale and others, ‘The courts, devolution, and constitutional review’. University of Queensland Law Journal, (2017), pp. 289-310. [7] [2002] WL 45403 para 63. [8] [2002] UKHL 32, [2002] NI 390. [9] See other constitutional issues regarding devolution Acts in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61 and Attorney General v National Assembly for Wales Commission [2012] UKSC 53. [10] Roger Masterman, 'The UK Supreme Court: A Constitutional Court In All But Name? - Durham University' (Dur.ac.uk, 2020) https://www.dur.ac.uk/research/news/thoughtleadership/?itemno=40221 accessed 15/04/2020. [11] [2019] UKSC 41. [12] A.V. Dicey, The Law of the Constitution (1885), pages 39-40. [13] Stuart Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 709-734 <<https://www.jstor.org/stable/20185394>> accessed: 25-04-2020. [14] Lord Woolf, ‘ Droit Public – English Style’ , Public Law (1995) pages 57–71. [15] See R. (on the application of Jackson) v Attorney General [2005] UKHL 56 para 107. [16] See Richard Ekins, Judicial supremacy and the rule of law , L.Q.R. [2003], 119, 127-152. [17] See David Jenkins, Common law declarations of unconstitutionality, International Journal of Constitutional Law, Volume 7, Issue 2, April 2009, pages 183–214. [18] Trevor Allan, The Sovereignty of Law Freedom, Constitution and Common Law, Oxford University Press, (2013), ch. 1. [19] See John Rawls, ‘A theory of Justice’, Harvard University Press, (1971), pages. 27-28.

Constitutional Law

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