Does the UK Have a Constitution?

You can find much more information about the UK Constitution in our Public Law lectures here.

Constitution can be defined as the rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. It is the document or documents embodying the most important laws. Thus we can say that in general a constitution allocates authority within a country, by defining the powers of government and the rights of the citizen, Most states have a written constitution, one of the findamental provisions of which is that is can itself be amended only in accordance with a special procedure. Does the United Kingdom have one?

Indeed the United Kingdom does not have a documented constituion, but are the rules of the constituion documented in other places – legislation, judicial decisions, the law and practice of Parliament and so on. So the question may well be: Does the UK have a written constitution?

There are written aspects to the constitution, so the term ‘uncodifed’ can substitute ‘unwritten’. A codified constitution is one in which key provisions are collected together in a single legal document, this document would be regarded as the highest law of the land. Uncodified constitutions have a legislature with supreme authority having the right to make what ever laws it chooses.

Braizier believes that the British is largely written, but it remains uncodified. He agrees that the rules of the constitution are available in a number of places including legislation etc, and that listing the proimary materials which form the constitution demonstrates the extent to which the British is largely a written one. Braizier argues:

“…The British constitution is written, but it is not codified into a single official document…Therefore the United Kingdom still lacks a codified constituion…”

Bolingbroke, whom like Brazier belived that an uncodified constitution existed in the UK. He argued that, the United Kingdom has a consitution, as there are laws, institutions, and customs which combine to create a system of government. The constitutional theorist K.C Wheare, Modern constitutions, proposed six classifications of constitutions: 1. written and unwritten; 2. rigid and flexable; 3. supreme and subordinate; 4. federal a unitary; 5. separated powers and fused powers; 6. republican and monarchical. If Wheare’s definitions are applied to the UK, it may be said there is an unwritten, uncodified constitution. Some writers are satisfied that the United Kingdom does have a constitution, some writers maintain that a British constitution is non- existent.

Thomas Paine believed that the UK lacked a constitution, he stated in, Rights of Man The Complete Works of Thomas Paine, that the continual use of the word “constituion” in the English parliament shows there is none and there is merely a government without a constitution.

F.F. Ridley, in There is no British constitution: A Dangerous Case of The Emperor’s Clothes, argues:

“…British writers define the constituiton in a way which appears to give us one, even though there is no document to prove it… Constitutions have certain essential characteristics, none of them found in Britain.”

Ridley describes the characteristics of a constitution as follows. (1) It establishes, or constitutes, the system of government. (2) It therefore involves an authority outside and above the order it establishes. (3) It is a form of law superior to other laws. (4) It is entrenched. He states that:

“without these characteristics, it is impossible to distinguish a constitution from a description of the system of government in a way that is analytically precise.”

Does it matter if the UK has a constitution or not? To answer it would be helpful to outline the advantages and disadvantages of a written constitution in the United Kingdom.

There are many arguments for a written and codifed constitution. Parliament is currently unrestrained. It can make any law and cannot be checked by any other branch of the system. Parliaments heavy workload means poor laws are frequently passed. The benefits of a written, codified constituion, would be: The independence of the Judiciary would be protected; basic rights of citizens would be identified and guaranteed; there would be less constituional crises as there will not be confusion as to what is ‘unconstitutional’ behaviour. Futhermore without the Bill of Rights, it is Parliament’s duty to preserve liberties. However these can be removed any time by Parliament.

Despite the large number of advantages for a written constitution, there are also many arguments against a codified document. The current system provides strong and effective government and there is accountability and supreme authority. A written constitution has to be relatively vague to allow it to evolve as society evolves. This means it will constantly be open to judicial interpretation. This is a problem for a number of reasons: Judges are unelected but would be able to overrule an elected Parliament; judges are unaccountable and do not have to answer to Parliament or the public; judges are unrepresentative of the public, as such they are unlikely to represent minority groups or activists, and will interperet the law in a biased way. The problem may arise of what will go in a written constitution? Politicians on the left and right would disagree massively over the contents of a constitution.