Isabella Carter
The United Kingdom's uncodified constitution is a collection of statutes, conventions, judicial decisions, and treaties. While the UK does have a constitution, it is not codified and is instead spread across multiple documents. The UK is one of only three major democracies without a written, codified constitution. The absence of a codified constitution has led to a lack of clarity and understanding of the rules by which citizens are governed. Brexit has brought to light several structural constitutional challenges, including competing sites of sovereign authority, the changing scope of judicial and executive power, and unclear rules about parliamentary processes and referendums. As a result, the question of whether the UK should adopt a codified constitution has gained prominence. Advocates of a codified constitution argue that it would empower citizen participation, shift the principle of devolution to self-determination, and provide clarity and definiteness to the constitutional framework. However, critics argue that codification will not succeed as a completely theorized agreement due to the territorial politics of the UK. The process of codification would require trust and a collective journey towards an unknown destination.
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What You'll Learn
The UK's unwritten constitution
The UK is often described as having an 'unwritten' constitution, but this is not entirely accurate. While the UK does have a constitution, it is largely written, but in different documents. It has never been codified; that is, brought together in a single document. The UK's constitution can 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, the Act of Settlement 1701, the Parliament Acts 1911 and 1949, the Human Rights Act 1998, and the 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, and that the Queen appoints as Prime Minister the person most likely to command the confidence of the House of Commons.
The UK is one of only a few major democracies without a codified constitution. Other countries that lack a codified constitution include Israel, New Zealand, Sweden, and Saudi Arabia. The absence of a codified constitution in the UK has led to criticism that it is a sprawling, opaque, and antiquated collection of documents, with unwritten conventions that are difficult to understand, even for constitutional experts. This lack of clarity can have significant implications, as seen with the EU referendum, where issues such as the status of referendums, the relationship between popular and parliamentary sovereignty, and the politicisation of the civil service came to the forefront.
The case for a codified constitution in the UK has gained momentum, particularly in the context of Brexit. Brexit stimulated broad engagement with the politics of Britain's constitution, highlighting structural constitutional challenges, such as competing sites of sovereign authority and the changing scope of judicial and executive power. The argument for codification centres on the need for clarity and definiteness in the constitutional arrangements, empowering citizen participation, and recognising the self-determination of the people of England, Scotland, Wales, and Northern Ireland.
However, there are also challenges and considerations to be mindful of when discussing the codification of the UK's constitution. The territorial politics of the UK suggest that codification may not succeed as a 'completely theorised agreement', conveying a clear and unified understanding of constitutional law and national identity. Additionally, the process of codification would require a significant level of trust and a collective journey with an uncertain destination. Furthermore, the flexibility of an uncodified constitution has enabled the UK to make amendments and introduce reforms without the elaborate amendment procedures required in codified constitutions.
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The democratic benefits of a codified constitution
The UK is one of only three major democracies without a written, codified constitution. Instead, it has an uncodified constitution, spread across various documents, including statutes, conventions, judicial decisions, and treaties.
Brexit has stimulated broad engagement with the politics of Britain's constitution. It has also drawn attention to several structural constitutional challenges, including competing sites of sovereign authority, the changing scope of judicial and executive power, and opaque rules about parliamentary processes and referendums.
A codified constitution would empower citizen participation, giving institutional structure to local forms of decision-making. It would also force elected representatives to deliberate, moving away from the notion that a government without deliberation is "strong" and "effective".
A written constitution would provide clarity and definiteness, improving the quality of public discussions through better knowledge about governmental processes and institutional arrangements. It would also place limits on the use of exceptional powers, providing mechanisms for scrutiny and making abuse of power less likely.
A codified constitution would also recognize that the UK depends on the consent of the people of England, Scotland, Wales, and Northern Ireland, shifting from a principle of devolution to one of self-determination.
However, it is important to note that the difficulties of agreeing on a codified constitution should not be underestimated, and the democratic benefits of such a constitution should not be exaggerated.
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The difficulties of agreeing on a codified constitution
The UK is often said to have an 'unwritten' constitution, but this is not strictly true. It does have a constitution, which can be found in leading statutes, conventions, judicial decisions, and treaties. However, it has never been codified into a single document. While some argue that the UK should have a codified constitution, there are difficulties in agreeing on one.
Firstly, the UK's territorial politics suggest that codification will not succeed as a 'completely theorized agreement' that conveys the clarity of constitutional law, the unity of constituent power, and the common identity of a national people. The UK is made up of England, Scotland, Wales, and Northern Ireland, and a codified constitution would need to recognize and address the specific needs and interests of each of these nations.
Secondly, the UK's constitution has multiple guardians, including the Supreme Court, the House of Lords Constitution Committee, the Commons Public Administration and Constitutional Affairs Committee, the Lord Chancellor, and specific constitutional watchdogs. Agreeing on a codified constitution would require consensus among these various bodies, each with its own interests and interpretations of the law.
Thirdly, the UK's uncodified constitution allows for greater flexibility and ease of amendment compared to countries with codified constitutions, which often have elaborate amendment procedures. While this flexibility can be seen as a disadvantage, it has enabled significant reforms such as the removal of hereditary peers from the House of Lords, the introduction of the Human Rights Act, and devolution to Scotland, Wales, and Northern Ireland.
Lastly, the process of codifying the UK's constitution would require a particular kind of trust from the citizens of the United Kingdom and a willingness to embark on a collective journey with an unknown destination. It would involve a significant shift in the balance of power and a re-evaluation of the relationship between the people, the government, and the state.
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The impact of Brexit on the UK's constitution
Brexit has had a significant impact on the UK's constitution, bringing about a need for constitutional reform. For three years, citizens engaged with constitutional issues, witnessing the competing sites of sovereign authority, the changing scope of judicial and executive power, and opaque rules about parliamentary processes and referendums.
The UK's constitution, which was previously bound by the constitution of the European Union, now faces a period of uncertainty. The country has what is known as an 'unwritten' or uncodified constitution, consisting of various documents, conventions, and statutes. This differs from most other countries, which have a single, codified constitution.
The lack of a codified constitution in the UK has led to concerns about the potential for abuse of power, as there are limited checks and balances in place. The Great Repeal Bill, for example, will allow ministers to amend and repeal primary legislation without reference to Parliament.
Brexit has also brought about a shift in the understanding of sovereignty. The notion of popular sovereignty, or the idea that the people are sovereign, has been emphasised, challenging the idea of parliamentary sovereignty. This has important implications for the future of the UK's constitution, as it suggests a need to empower citizen participation and give institutional structure to local forms of decision-making.
The process of codifying the UK's constitution would not be without its challenges. The UK's territorial politics suggest that codification may not succeed in conveying a clear and unified constitutional law that represents the diverse identities of its nations. However, the benefits of codification include improved clarity and definiteness, better public knowledge about governmental processes, and a sense of common purpose.
Brexit has undoubtedly stimulated broad engagement with the UK's constitution, and the country now faces the task of reaching an enduring constitutional settlement that reflects the will of its citizens.
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The role of parliament and popular sovereignty
The UK's uncodified constitution has been a topic of debate for decades. The country is one of only three major democracies without a written, codified constitution. Instead, the UK's constitution is found in various documents, including leading statutes, conventions, judicial decisions, and treaties. While some argue that a written constitution would provide clarity and improve public understanding of governmental processes, others highlight the challenges of agreeing on a codified constitution and question the democratic benefits it would bring.
Brexit has brought the issue of the UK's constitution to the forefront. With the country no longer bound by the constitution of the European Union, there is a question of whether the UK should now adopt a codified constitution of its own. The debate centres on the role of parliament and popular sovereignty.
Prior to Brexit, the UK's membership in the EU effectively constrained its government and parliament, with European law taking precedence. The EU's protected constitutional system provided for the judicial review of primary legislation, and European courts were required to disapply or annul legislation that conflicted with EU law or the European Charter of Fundamental Rights. This dynamic changed with Brexit, and the UK reverted to its pre-1973 system of government, where parliamentary sovereignty is the fundamental constitutional principle.
The principle of parliamentary sovereignty in the UK means that parliament can enact any law it wishes, and no court can declare an Act of Parliament invalid. This has been described as an elective dictatorship, where the government wields significant power with limited checks and balances. The absence of a codified constitution means that the UK relies on unwritten conventions and royal prerogatives, which can be difficult for voters and even constitutional experts to understand.
Brexit has highlighted competing sites of sovereign authority and the opaque rules surrounding parliamentary processes and referendums. It has also presented an opportunity for democratic reform and a shift towards popular sovereignty. The resolution of the Brexit debate clearly demonstrated that while parliament may not have wanted Brexit, it could not go against the will of the people, who had voted to leave the EU. This dynamic introduced the notion of popular sovereignty, challenging the idea of parliamentary sovereignty.
A codified constitution would empower citizen participation and give institutional structure to local forms of decision-making. It would shift the UK from a principle of devolution to one of self-determination, with a politics of transformation rather than resistance to reform. However, the process of codification would require trust and a collective journey towards an unknown destination.
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Frequently asked questions
A codified constitution would provide clarity and definiteness, improving the quality of public discussions through better knowledge about governmental processes and institutional arrangements. It would also empower citizen participation, giving institutional structure to local forms of decision-making, and it would force elected representatives to deliberate.
The UK's territorial politics suggest that codification will not succeed as a 'completely theorized agreement' that conveys the clarity of constitutional law, the unity of constituent power, and the common identity of a national people. The difficulties of agreeing on a codified constitution should not be underestimated, and the democratic benefits of a codified constitution should not be exaggerated.
The UK's constitution can remain uncodified, as it has been historically. An uncodified constitution has the benefit of flexibility, which has enabled the removal of hereditary peers from the House of Lords, the introduction of the Human Rights Act, devolution to Scotland, Wales, and Northern Ireland, and the creation of the Supreme Court.
Brexit stimulated broad engagement with the politics of Britain's constitution and drew attention to several structural constitutional challenges, such as competing sites of sovereign authority and the changing scope of judicial and executive power. It also introduced the notion of popular sovereignty as opposed to parliamentary sovereignty.
