This essay will attempt to analyse theoretical and practical arguments for and against codifying the UK’s constitutional arrangements.
A constitution is a set of rules which regulates the balance of powers in a country between the Judiciary, Executive, Legislature and a citizen. Constitutions differ enormously in their volume and scope. Some are very brief, containing only a few articles 1 and addressing only ‘high level’ fundamental rights, policies and ideas. Others are very detailed and contain hundreds of articles 2 , describing constitutionally unimportant details, such as colours of a national flag 3 . Constitutions can be divided using various criteria e.g. codified/uncodified, written/unwritten, and entrenched/not entrenched. The majority of constitutions are codified 4 and entrenched.
It is often said that the United Kingdom’s constitution is unwritten, or even that the United Kingdom has no constitution at all. The question whether the United Kingdom has a constitution at all can be answered in the positive or negative depending on the criteria applied. Thomas Paine in the Rights of Man argued that the UK does not have a constitution at all, as the arrangement for the election of a supreme Parliament cannot be described as a constitution 5 . This view however appears to be rather narrow and formalistic which clearly contradicts the facts. The UK has been successfully governed, without any revolution or serious internal unrest, for more than 300 years. This would not have been possible if there was no efficient mechanism in place which governed the country. It follows that if a broad, substance based approach is employed then clearly the UK has a constitution.
To a considerable extent, it can be said that the UK does have a constitution partially written and uncodified. The constitution can be found in statutes and judgements, such as the Bill of Rights 1689, the Act of Settlement 1701, the Parliament Acts 1911 and 1949. These statutes along with others could be an accumulation of a solid UK constitution. Higher Court judgements are also written and their impact on constitutional law and its interpretation cannot be denied. To name just a few cases which affect the United Kingdom constitution: Entick v Carrington 6 , Thoburn v Sunderland City Council 7 , Factortame. 8 It follows that only two parts of the United Kingdom constitution can be properly classified as unwritten: conventions and prerogatives.
The ‘highest level’ in abstract sense, overarching constitutional concept in the UK is the ‘rule of law’. The concept itself is difficult to pin down and to describe accurately. It is a multi-dimensional idea which includes procedural and substantive justice 9 ,. Dicey pointed out three main aspects of the rule of law; supremacy of law, equality before law and the source of constitution 10 . The need to implement the rule of law lead to rise of ‘lower level’ concepts designed to give effect to the overarching idea. In the UK those concepts include the doctrine of Parliamentary Supremacy, constitutional conventions, royal prerogatives and judicial review.
The most important concept of the United Kingdom constitutional order is undoubtedly the doctrine of Parliamentary Supremacy (‘DoPS’) formulated by Dicey. The orthodox doctrine states that the Parliament is the single lawmaker with unfettered 11 power to pass any legislation 12 and that primary legislation cannot be questioned 13 nor invalidated by anyone 14 . As a result of enactment of the European Communities Act 1972 (ECA) and Human Rights Act 1998 (HRA) the doctrine, and constitutional order of the UK, has been modified. Parliament was no longer supreme in the orthodox sense 15 , judgments of the ECJ had to be given priority over national courts 16 , laws created abroad took effect in the UK 17 and courts empowered to scrutinise (but not invalidate) 18 an Act of Parliament for compliance with ECHR.
Another vital part of the United Kingdom’s constitution are the judgments of higher courts. Commonly known judgements which have impact on the constitution are Entick v Carrington 19 , Factortame 20 , Thoburn 21 . Judicial review is another legal procedure of vital constitutional importance, whereby decisions made by the Executive are screened for compliance with relevant legislation. Those commonly known include GCHQ 22 , exp Rossminster 23 , Smith 24 .
Constitutional conventions are important part of the constitution in the United Kingdom. Although unwritten and not legally binding, conventions are recognised by the Courts 25 and ‘…play a central part in the theory of British Government…’ 26 . It was said that conventions ‘…provide the flesh which clothes the dry bones of the law…’ 27 . Conventions are firmly established in the constitutional order e.g. the convention that the Queen cannot refuse Royal Assent to Bill of Parliament. Although there are no restraints on the Queen’s power to refuse assent, it is inconceivable in this democratic, twenty first century society, and has not happened for more than 300 years 28 .
Royal prerogatives are another vital part of the United Kingdom constitution. Prerogatives are residual power left to the Crown after the Glorious Revolution. They play important role in dualist system, it has been confirmed that no new prerogatives can be created 29 and in the event of a clash between a prerogative and legislation, an Act of Parliament prevails 30 . Commonly known and used prerogatives include: Right to appoint a prime minister, open and dissolve Parliament, grant pardons 31 , declare wars and treaties. In practice Royal Prerogatives are used by prime ministers or senior members of the cabinet in name of Monarch.