The United Kingdom does not have a single written text
constitution. This is uncommon as many modern and major countries have opted to
use a codified constitution such as France and the USA. Although this may
ultimately come down to the stability of the United Kingdom over many years
there are many aspect to back up the argument that the United Kingdom
constitution should be codified in a single written text and many that suggest
it should remain uncodified. The United Kingdom constitution has changed over
many years. The constitution in the United Kingdom first formulated with the
Magna Carta in 1215. This laid “the foundations of constitutional Government in
England.”1 This
ranged right through to 1998 when the Human Rights Act 19982 made the
European Convention on Human Rights3
enforceable in courts within the United Kingdom.

 

With the lack of a codified constitution in the United
Kingdom, Lord Neuberger states, “we have no constitution at such at all…”4 This
point suggests that there may be a need for a codified constitution within the UK.
There are many factors that aid this argument. This includes the fact that it
will give the people of the United Kingdom the ability to have full knowledge of
their rights meaning they will be able to protect themselves from the state. Additionally,
there is no real balance in powers within the Westminster Parliament due to the
existence of Parliamentary Sovereignty. Therefore, a codified constitution
could solve this problem.

 

Although, the formulation of a codified constitution
may be too difficult to create, meaning there are many practical implications
to reforming the UK constitution to that of a codified one. The creation of a
codified constitution could also undermine the Parliament. The fact the
constitution is uncodified means it is able to be kept flexible and change to
match and meet the demands that of a modern society. This essay will argue that
the constitution in the UK should remain uncodified for many different reasons
that will be assessed.

 

There are many practical difficulties surrounding the
creation of a codified constitution. This includes that society is
ever-changing. Nowadays, society has become very diverse and modern. Therefore,
a new UK codified constitution must cater for everyone. Professor Robert
Blackburn states that a codified constitution for the UK “has been debated… by
politicians of all parties for several decades.”5 In the UK
there is no direct process laid out to codify the constitution6. Dr.
Andrew Blick emphasises the question of, “What particular feature of UK
political and constitutional culture need to be taken into account?”7 This
leaves many legal experts with what can only be described as a mammoth task of
including the needs of all people in the constitution. With the UK having an
uncodified constitution, it is quite difficult to exactly define what it is8. There
are great implications and debates on what conventions and legislations
wholeheartedly make up the constitution, with Elliot and Thomas affirming, “There
is no straightforward, formal way of identifying such legislation…”9 As the
constitution is uncodified, the legislation that may make up the constitution
is not branded as ‘Constitutional’10. Jack
Beatson compared the creation of a codified constitution as, “like pulling on a
loose thread of wool on a pullover.”11 In the
sense that you are unsure whether you are going to fix a problem and tidy it up
or you are going to completely damage it12. This
therefore leaves what should be included within a codified constitution open to
interpretation13.
In turn, many disagreements could happen during the formulation of a codified
constitution. The many practical implications on creating a codified
constitution within the UK supports the view that there is no need for a
codified constitution as it may be too difficult to create.

 

In contrast to this point, the UK could benefit from a
codified constitution as it would improve the separation of powers. The
existence of Parliamentary Sovereignty14 means
there is no full balance of powers within the UK Parliament. Within this Parliament
there is the legislative, executive and judiciary. The lack of a codified
constitution means this separation of powers is never perfect. Parliament has
the ability to ever increase its powers’ through the simple passing of an Act
of Parliament. Parliament has passed and created many measures to limit the
importance of Parliamentary Sovereignty. This includes the Human Rights Act
199815 and the
entry of the UK to the European Union in 1973 with the European Communities Act
197216. These
have placed European Law at a higher regard than UK common law. This in a sense
limits the power of the Parliament. However, in theory this does not fully
limit Parliament as they could repeal any of the laws that created these
changes. The ability of Parliament to increase their power means there is what
Lord Hailsham described as an “elective dictatorship”17meaning
the balance in powers is not apparent.

 

As the current separation is not perfect, a codified
constitution which would clearly define the separation could aid this. Baron
Montesquieu expressed this view in 1748 by stating, “There would be an end to
everything”18
if the same person were to exercise the legislative, the executive and the
judiciary as it would be impending on the liberty of the subject in court.19
Although this is not calling for a complete separation, it suggests that an
improved separation could be beneficial. Sir William Blackstone reworked Baron
Montesquieu’s idea of a separated but mixed power structure. He remained
central in the idea that to avoid tyranny the powers must remain separate.20 However
he also ensured it was crucial that the powers were somewhat mixed. This is to
avoid what Hilarie Barnett describes as “constitutional deadlock”21. That
being said, it is also key that constant checks are made to ensure that no
institutions begin working too closely with the other.22
However, with the lack of a codified constitution it is hard to decide when
this is happening. Therefore, the creation of a codified constitution in the UK
would be beneficial to this as it would clearly illustrate the guidelines of
how the powers of the Government were originally separated.

 

Moreover, with UK not having a codified constitution,
the rights of citizens are not clearly outlined and are not protected by a
single document. There is no mention of rights and freedoms’ within the many
sources of the uncodified constitution. Former Justice Secretary Jack Straw
stated, “Most people might struggle to put their finger on where their rights
are?”23 This
truly articulates the lack of provision the UK Government has allocated to
fully protecting the rights and liberties of their citizens. These rights and
liberties play such a pivotal and important role in a totally revolutionised,
diverse and modern society. In 2014 the Conservative Government set out on
limiting the use of Human Rights24 to only
cases that were deemed serious enough by the Parliament. This completely
undermines the rights and liberties of the people within the UK who should have
easy access to their human rights through a British Bill of Rights and codified
constitution. Hilaire Barnett commented on this intention stating that it
would, “limit the territorial scope of human rights to the UK”25 and it
would not cover the British armed forces that are fighting overseas.26 This
would create many constitutional difficulties and prove to have very limited
benefits.

 

The European Convention on Human Rights27 has
protected the people of the UK from the virtually unlimited power of the state
since 1998. Implications to the rights of people caused by the onset of Brexit
are an increasing issue in 2017. The people of the UK are protected by the
Charter of Fundamental Rights of the European Union28. This
is a combination of the many rights of people living within the EU. Many
politicians have stated that the charter will no longer be effective and will
not be law when UK eventually leaves the EU. A Bill of Rights which combines
and legitimises the rights and liberties brought by the EU could solve this
grey area. Andrew Lesser QC supports this view and states, “It
might give the public a greater sense of ownership. It could ensure the
consistent protection of rights across the United Kingdom.”29 In the
Belmarsh case30,
Lord Bingham of Cornhill in the House of Lords was only able to issue a
‘Declaration of Incompatibility’ on the ‘Anti-terrorism, Crime and Security Act
2001’31 with
the European Convention on Human Rights32 regarding
the nine appellants who were unlawfully detained in Belmarsh Prison33. The UK’s
highest court was unable to protect the liberties of individuals in this case
due to the Parliament reigning supreme which is a definite problem relating to
the current uncodified constitution within the UK. A codified constitution and
Bill of Rights could possibly combat this problem as it would safeguard
citizens to a higher degree and protect the rights and liberties of individuals
living in the UK.

 

The
United Kingdom currently benefits from an uncodified constitution in the sense
that it is flexible and can be easily adapted. James Bryce said that the
defining feature of the UK’s uncodified constitution is its “flexibility”.34 Every
law can be changed legally in the same way within a flexible uncodified
constitution. Dicey stated that the whole constitution in the UK can be changed
and curtailed as easily as any other law.35 Dicey
even went as far as describing the uncodified constitution as “the most flexible
polity in existence”.36 The UK
Government avoids a deadlock in Parliament with their uncodified constitution.
For example, the Commonwealth of Australia Constitution Act 190037 states
that an amending Bill must pass through at least one House of Parliament by a
majority and the proposed amendment must be endorsed in a referendum which
approves the measure by an overall majority in at least four of the six states.38 Between
the years 1900 and 1990, there were forty-two proposals of amendments for the
Australian constitution put forward. Of these forty-two proposals, eight were
approved by a majority of the national electorate and a majority of electors in
a majority of states.39 This
has left Australia in what Geoffrey Sawer described as “a frozen continent”40, constitutionally
speaking. The UK avoids this deadlock in Parliament by having a very flexible
aspect of their uncodified constitution which is that a majority vote in Parliament
can amend the constitution. No court is allowed to make an Act of Parliament
void.41 It can
be said that this aspect of flexibility may be outdated as it was originally
implemented as it “enabled easy incorporation of new territories”42 to the
British Empire which is no longer of great importance to the UK. Although, the UK
benefited from this flexibility in many major ways that still exist to this
present day. The flexible uncodified constitution “has been flexible enough to
admit… the union of Great Britain and Ireland.”43 The
union of Northern Ireland with the UK still remains today which proves that the
aspect of flexibility in the constitution has served the UK well over many years
and ultimately proved beneficial.

 

Furthermore,
many countries have struggled to amend their constitution for important reasons
and have suffered various tragedies for this. The USA features a codified
constitution and a Bill of Rights. The second amendment in this Bill reads, “A well-regulated Militia, being necessary to the
security of a Free State, the right of the people to keep and bear Arms, shall
not be infringed.”44 The
easy access to firearms to US citizens has led to people using the firearms for
sinister motives. Mass killings in the US are on the rise and are often “carried
out with guns… most of them obtained legally.”45 Over
146 events analysed, 168 out of the 292 firearms used were obtained legally
through the second amendment right of every US citizen.46 Due to
the strict nature of the US constitution, Congress has been unable to pass vital
gun control laws as the amendments have become entrenched in society. Alternatively,
with the flexible nature of the UK’s uncodified constitution, firearms laws
have been and can be easily passed just like any other law. There are strict
controls on the use of firearms under the Firearms Act 196847 which
in turn proves how beneficial the flexibility of the uncodified constitution in
the United Kingdom is, as in a sense; lives and liberties are protected, even
with the absence of a written Bill of Rights, with the ability of Parliament to
pass any law.

 

To
fully conclude, the United Kingdom is unusual in having an uncodified
constitution. However, it is this uncodified constitution that has been
successful for many years and is the backbone of the United Kingdom as a whole.
It has allowed for the protection of its citizens in a unique way. Although the
rights and liberties of citizens are not protected by a written Bill of Rights,
it is the job of the Parliament to ensure that these rights are protected through
the passing of Acts of Parliament and many unwritten conventions which make up
this constitution. The fully flexible constitution that currently exists is
vital in what has become a diverse, modern day society as it has the ability to
adapt to suit the needs of society. Therefore, the constitution of the United Kingdom
should remain uncodified as it has been for many centuries.

1 Jowitt’s Dictionary of English Law (4th
edn, 2015)

2 Human
Rights Act 1998

3 European
Convention on Human Rights 1950

4 Professor Mark
Elliot, ‘Is Lord Neuberger right to suggest that the UK “has no constitution”?’
(Public Law for Everyone, 13 February
2014) accessed 15 December 2017

5 Professor
Robert Blackburn, ‘Britain’s unwritten constitution’ (British Library, 13 March 2015)
accessed 15 December 2017

6 Dr.
Andrew Blick, ‘Codifying- or not codifying- the UK constitution: A Literature
Review’ 2015

7 ibid

8 Anthony King, The British Constitution (first
published 2007, Oxford University Press) 10

9 Mark
Elliot and Robert Thomas, Public Law (3rd
edn, 2017) 42

10 Mark
Elliot and Robert Thomas, Public Law (3rd
edn, 2017) 42

11 Jack
Beatson, ‘Reforming an unwritten constitution’ L.Q.R. 2010, 126(Jan), 48-71

12 ibid

13 ibid

14 Doctrine
of Parliamentary Sovereignty

15 Human
Rights Act 1998

16 European
Communities Act 1972

17 Jack
Beatson, ‘Reforming an unwritten constitution’ L.Q.R. 2010, 126(Jan), 48-71

18 Hilaire
Barnett, Constitutional &
Administrative Law (12th edn, 2017) 81

19 ibid

20 ibid

21 ibid

22 ibid

23 Nigel
Morris, ‘The Big Question: Why doesn’t the UK have a written constitution, and
does it matter?’ Independent (London,
14 February 2008)

24 Human
Rights Act 1998

25 Hilaire
Barnett, Constitutional &
Administrative Law (12th edn, 2017) 487

26 ibid

27 European
Convention on Human Rights 1950

28 Charter
of Fundamental Rights of the European Union

29 Michael Zander, “Will
it ever come to pass?’ 2015 165 NLJ 7657 11, 12

30 A and others v Secretary of State for the Home Department 2004
UKHL 56, 2005 2 AC 68

31 Anti-terrorism,
Crime and Security Act 2001

32 European
Convention on Human Rights 1950

33 A and others v Secretary of State for the Home Department 2004
UKHL 56, 2005 2 AC 68

34 Dylan
Lino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ 2016 OJLS 36
(4): 751, 767

35 ibid

36 Albert
Venn Dicey, LOTC (1st edn,
1885) 114

37 Commonwealth
of Australia Constitution Act 1900

38 Commonwealth
of Australia Constitution Act 1900 (UK), s 128

39 Hilaire
Barnett, Constitutional &
Administrative Law (12th edn, 2017) 9

40 ibid

41 ibid

42 Dylan
Lino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ 2016 OJLS 36
(4): 751, 755

43 Dylan
Lino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ 2016 OJLS 36
(4): 751, 767

44 Cornell Law School, ‘Second
Amendment’ (Legal Information Institute)
accessed 16 December
2017

45 Bonnie
Berkowitz, Lazaro Gamio, Denise Lu, Kevin Uhrmacher and Todd Lindeman, ‘The
math of mass shootings’ The Washington
Post (Washington D.C., 20 November 2017)

46 ibid

47 Firearms
Act 1968