The Unwritten British Constitution: What's The Problem?

The United Kingdom is often said to have an 'unwritten' constitution, but this is not strictly true. While the UK does not have a single constitutional document, its constitution can be found in leading statutes, conventions, judicial decisions, and treaties. The British constitution is a huge compendium of traditions and court rulings that, together, establish the equivalent of a working constitution. The UK's constitution is different from most other countries, which have codified constitutions. The main disadvantage of an uncodified constitution is that it is harder to understand, but this flexibility can also be seen as an advantage. The 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.

Explore related products

The English Constitution (Oxford World's Classics)

$12.97 $13.95

The English Constitution: Parliament and the British monarchy, and the contrasts between British and American government

$12.38

The British Constitution

$34.99 $58

Beyond Brexit: Towards a British Constitution

$17.95 $19.95

The British Constitution

$25.95

The debate on the American Revolution (Issues in Historiography)

$23.47 $26

The UK constitution is 'unwritten'

The UK is often described as having an "unwritten" constitution, but this is not entirely accurate. While the UK does not have a single constitutional document, its constitution is largely written in various documents, including statutes, conventions, judicial decisions, and treaties. The sources of the UK constitution are diverse, encompassing both legally binding and non-binding documents.

The UK's constitution differs from those of most other modern liberal democracies in that it lacks a single, codified text. Typically, countries possess a document with special legal status that outlines their constitution's key features. This text is upheld by the courts and can only be changed through a rigorous process. However, the UK has never experienced a significant historical turning point, such as a revolution or defeat in war, that would have prompted the codification of its constitution.

The main drawback of an uncodified constitution is its complexity and lack of accessibility. It can be challenging for citizens to understand their constitutional rights and obligations without a single reference text. On the other hand, an uncodified constitution offers flexibility and ease of amendment compared to codified constitutions with intricate amendment procedures. This flexibility has facilitated significant changes in the UK, 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.

The UK constitution has multiple guardians, including the Supreme Court, which recognises constitutional principles and statutes. Parliamentary sovereignty is considered the defining principle of the British Constitution, with Parliament holding the ultimate power and control of the government. Other core principles include the rule of law, the separation of government into executive, legislative, and judicial branches, ministerial accountability to Parliament, and judicial independence.

In conclusion, while the UK constitution may not be codified in a single document, it is not entirely unwritten. It consists of a vast array of traditions, rulings, and documents that collectively establish a working constitution. The absence of a codified constitution in the UK reflects its stable political history and provides both advantages and challenges in terms of accessibility and flexibility.

The UK constitution is not codified

The UK constitution is often described as ''unwritten', but this is not entirely accurate. While the UK does have a constitution, it is not codified, meaning it is not contained in a single document. Instead, the UK constitution is found in various sources, including leading statutes, conventions, judicial decisions, and treaties.

The sources of the UK constitution include both law and other less formal documents without legal force. Certain pieces of primary legislation enacted by the UK Parliament form a major source for aspects of the UK constitution. These laws provide for devolution settlements, the right to vote and hold elections, the upholding of human rights, the prohibition of discrimination, and the existence of the Supreme Court.

Examples of constitutional statutes include the Bill of Rights 1689, the Acts of Union of 1707 and 1800, the Act of Settlement 1701, the Parliament Acts of 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. These conventions have been codified in documents such as the Cabinet Manual.

The main disadvantage of an uncodified constitution is that it can be harder to understand compared to codified constitutions, which typically have elaborate amendment procedures. However, the flexibility of an uncodified constitution can also be seen as an advantage. For instance, it 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.

While some argue that the UK should adopt a codified constitution, others highlight the difficulties in agreeing on such a document and question the democratic benefits it would bring. The UK's constitution has evolved over time, and its uncodified nature reflects the country's history and political culture.

The role of the courts

The UK is often said to have an 'unwritten' constitution, but this is not entirely accurate. While the UK does not have a single constitutional document, its constitution can be found in leading statutes, conventions, judicial decisions, and treaties. The sources of the UK constitution are diverse, encompassing both law and other less formal documents without legal force.

The independence of the judiciary is a core principle of the British Constitution. Measures such as protecting judges' salaries and positions aim to ensure their independence and ability to enforce the law without fear of retribution. The creation of the Supreme Court, established in 2009, further strengthened the role of the courts. The Supreme Court is the highest court in the UK and has the power to make constitutional judgments and interpret fundamental principles of constitutional law.

The courts also contribute to the development of the rule of law, a key principle in the British Constitution. The rule of law encompasses concepts such as legal clarity, predictability, equal application, fair procedures, protection of human rights, and adherence to international law. Through case law, the courts shape the practical meaning of the "rule of law" and ensure its implementation.

While the courts play a vital role in interpreting and upholding the constitution, there have been debates about the balance of power. Some argue that the courts are assuming too much power and potentially distorting the constitutional hierarchy. This is particularly evident in the context of Brexit, where the courts were turned to in an attempt to "rescue Parliament" from the government's Brexit plans. The British courts, unlike their American counterparts, are not constitutionally equal to the other branches of the government.

Explore related products

The British Constitution: Its Growth and Character

$0.99

A History of the British Constitution.

$30.75

Introductory Lessons on the British Constitution

$17.75

Law, Liberty and the Constitution: A Brief History of the Common Law

$20.36 $29.95

Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (Routledge Research in Constitutional Law)

$55.16 $72.99

The British Constitution and Government: A Description of the way in Which the Laws of England are M

$25.95

Parliamentary sovereignty

The UK is often said to have an "unwritten" constitution, but this is not strictly true. While the UK does not have a single constitutional document, its constitution can be found in leading statutes, conventions, judicial decisions, and treaties. The sources of the UK constitution are various, including both law and other less formal documents without legal force.

The UK constitution has multiple guardians, including the Supreme Court, in its constitutional judgments. The Supreme Court recognises constitutional principles and constitutional statutes. The lower rank of the British courts (even including its Supreme Court) are not like the American federal courts, made constitutionally equal to the other branches of the federal government.

The UK's constitution is different from most other modern liberal democracies, which have a document with special legal status that contains some of the key features of their constitution. This text is usually upheld by the courts and cannot be changed except through a demanding process. The UK, on the other hand, has never brought together its constitution in a single document. This is because, historically, there has never been a cause to codify its constitution. The UK's one revolution in the 17th century did briefly produce a codified constitution: Cromwell’s Instrument of Government.

Some argue that the UK should have a codified constitution. However, 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 main disadvantage of an uncodified constitution is that it is harder to understand. Another disadvantage is that it is easier to amend than in countries with codified constitutions with elaborate amendment procedures. However, this flexibility can also be seen as an advantage. It 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.

The rule of law

The UK is often said to have an "unwritten" constitution, but this is not entirely accurate. While the UK does not have a single constitutional document, its constitution can be found in leading statutes, conventions, judicial decisions, and treaties. The UK constitution has multiple guardians, including the Supreme Court, the House of Lords, and the monarch.

One of the core principles of the British Constitution is the rule of law. The rule of law was explicitly recognised as a "constitutional principle" in Section 1 of the Constitutional Reform Act 2005, which limited the judicial role of the Lord Chancellor and reformed the judicial appointments system to promote independence, diversity, and merit.

The concept of the rule of law suggests that the law should be clear and predictable, free from broad or unreasonable discretion, applied equally to all people, with fair and timely enforcement procedures, protective of fundamental human rights, and compliant with international law. The rule of law is a fundamental principle of the British Constitution, ensuring that all public bodies act in accordance with the law, as laid down in Acts of Parliament and court decisions.

The UK's constitution includes various laws and less formal documents. Certain pieces of primary legislation enacted by the UK Parliament form a major source of the UK constitution. These laws cover crucial aspects such as devolution settlements, voting rights, elections, upholding human rights, prohibiting discrimination, and the establishment of the Supreme Court. The UK's constitution also includes conventions, such as the monarch acting on ministerial advice and the Prime Minister sitting in the House of Commons.

The flexibility of an uncodified constitution has enabled significant changes, 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. However, the lack of a codified constitution in the UK has been a point of contention, with some arguing that a written constitution would provide clearer guidelines and limitations for governmental organisations and enhance the public's ability to influence the political process.

Frequently asked questions