Codification of the Constitution
Q: ‘Although the case for reforming particular aspects of the UK
constitution is strong, the radical reform that would be signaled by the
adoption of a codified constitution is both unnecessary and unjustifiable.’
Discuss.
The United Kingdom (“UK”) possesses an uncodified constitution as opposed
to a written and codified one. A constitution, as defined by the House of Lords
Select Committee on the Constitution, refers to it as “the set of laws, rules and
practices that create the basic institutions of the State, and its components and
related parts, and stipulate the powers of those institutions and the relationship
between different institutions and the individual.” The essay below shall discuss
whether or not the codification of a constitution is necessary for a country to
uphold the principles of constitutionalism, including if the current constitution is
in need for such a reform.
While other countries have codified these laws, rules and practices in a single
document referred to as a ‘codified constitution’, commonly following
revolutions such as the American Revolution in 1787 or French Revolution in
1791, Britain has not. Lord Hailsham has called this lack of codification to
perhaps result in ‘elective dictatorship’ with a tension between rule of law and
parliamentary supremacy. While the British Empire did undergo a revolution in
the 17th Century and briefly did give birth to a semblance of a written
Constitution in the form of Cromwell’s Instrument of Government, the current
Constitution of the UK remains uncodified. The Constitution in certain
countries is held to have an overriding force, one which only the most Supreme
Courts of the country may interpret or enforce and in other circumstances,
legislative or even executive actions may be held to have no legal force if in
conflict with the Constitution. It’s observed that in the UK, there is no single
document from which the branches of State: The Crown, Legislature, Executive
or Judiciary; derive their authority from since no such written text provides for
the relationship between these organs. Therefore, the UK exhibits a much more
complex and comprehensive system of government, called one of the “most
successful political structures ever devised.” This includes Acts of Parliament,
Judicial Decisions (common law), Political Practices (constitutional
conventions) which serve as the basis of this structure.
, In this regard, Acts of Parliament refers to the laws enacted by the Parliament,
which has passed laws of great constitutional importance for the regulation of
the State. Some of the constitutional Statutes as iterated by Laws LJ in
Thoburn v Sunderland City Council include the Magna Carta as the starting
point in which the King's powers to punish without proof of crime were
restricted, following by the Bill of Rights which resulted in a compromise of
power between the Parliament and the Crown, and the Parliamentary Acts of
1911 and 1949 which rearranged powers of the two houses of Parliament.
Whereas, Common Law refers to the judgement of senior courts such as the
Supreme Court which have constitutional significance and as in the words of
Turpin and Tomkins, "we find constitutional rules mingled with the rest of the
law, in statutes and subordinate legislation, in the common law and decisions of
the judges'' (Turpin, C. and A. Tomkins, British Government and the
Constitution). Other than that, there seem to be two types of sources from which
the UK Constitution is derived from, either legal or non-legal sources. Legal
sources contain royal prerogatives and the aforementioned ones, whereas,
non-legal sources consist of constitutional conventions.
These conventions are considered an integral part of the uncodified British
constitution and are contained in the first edition of the government's Cabinet
Manual as "rules of constitutional practice that are regarded as binding in
operation but not in law". It is important to consider that the reason why
conventions are considered a non-legal source is because they are not laws or
legal rules and those bound by them consider that they have an obligation to
follow the convention instead of it being a mere habit or custom, as per
Marshall and Moodie. We see that the consequence of the breach of a
Convention provides that the sanctions will be political rather than legal. This is
clarified by the Supreme Court in the Miller v Secretary of State for Exiting
The European Union [2017] in which they stated, "judges ‘are neither the
parents nor the guardians of political conventions; they are merely observers’:
while they can ‘recognise the operation of a political convention in the context
of deciding a legal question’, they cannot ‘give legal rulings on its operation or
scope, because those matters are determined within the political world."
However, it can be seen that new conventions are always emerging and
dissolving, therefore, it is difficult to assess whether a convention has been
broken or simply changed (Turpin and Tomkins).
