UK Constitutional Law Essay - Does the UK really have a constitution PDF

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Essay question exploring the challenges surrounding the UK's uncodified constitution...

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Sophia Stewart – Mr J Bachir The constitutionality of the rules that allocate governmental power in the UK is widely disputed by legal and political commentators. It is an uncodified, unique and gradually changing constitution which is unlike many others of its kind. How a ‘constitution’ will be established for the purposes of this essay is by assessing if the UK constitution provides an outline for the relationship between the individual and the state, the powers exercised by the government, and the extent and limits of those powers. This essay will view a plethora of the sources of the UK constitution and look at comparatives to conclude that the UK does indeed have a constitution and will also look at how it can be improved to reach a more ‘Capital-C’ like constitution.

One way in which the constitution can be regarded as diverse is its unwritten nature. Uncodified constitutions are constantly changing and evolving to keep up with the social, economic, political and moral changes in society. For this reason, the UK constitution is ‘almost unique amongst modern democracies’1. Its origins cannot be traced back to one single moment or revolution – this is unlike many of the Western counterparts of the UK such as the USA or France. In those nations, their codified and entrenched constitutions can be traced back to monumental societal changes, such as American Independence 1783 or The French Revolution 1789. Its diverse nature comes from the multiple and varying sources of our constitution, such as authoritative writings, statutes, conventions, common law and EU law.2 A key aspect of the constitution, the Doctrine of the Separation of Powers, can be found not only in Acts of Parliament such as in the Constitutional Reform Act 2005 but also in authoritative works such as the Cabinet Manual 2015.2 This multi-faceted nature means that 1 Vernon Bogdanor, The British Constitution in the Twentieth Century (Oxford University Press 2003) 9 9–12. “The Cabinet Manual A Guide to Laws, Conventions and Rules on the Operation of Government 1st Edition” (2011) 2

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Sophia Stewart – Mr J Bachir there are commentators like Ridley3 and Thomas Paine4 who remain sceptical of the existence of a British constitution. The diversity provided by using so many different sources can make the constitution disputable – it is unlike any other constitution in such way and therefore, it is difficult to compare. This lack of comparability makes it difficult to argue that there is a ‘real’ constitution because not many other nations have a similar layout or origin. Irrespective of this, the comparatives present are that all constitutions outline the relationship between individual and state, the powers (and their extent) that are allocated to government. It is not of great importance if the constitution provides this within one single, written and codified document (although no constitution is in whole written), it is important what the constitution does – setting out people’s right’s, the separation of powers, and establishing checks and balances. Therefore, the constitution is diverse and multi-faceted, but this should not subsequently dismiss the outright existence of a constitution.

The contents of the constitution is extremely important and its certainty is also significant in establishing that it is ‘real’ and ‘legitimate’. Not dissimilar to that of any other constitution; it establishes the structure of government and establishes a Separation of Power. For example, the UK’s bicameral legislative is Parliament which creates legislation, our judiciary – the Supreme Court, interprets this legislation. Meanwhile, the executive enforces these laws to govern society. Each of the structures apply checks and balances on the other, for example, Parliament can hold the executive accountable through mechanisms such as a ‘Vote of No Confidence’. Whilst the executive compromises the majority of Parliament and therefore has power to pass legislation. Parallels between the UK and the US Constitution can be drawn in 3 F Ridley, THERE IS NO BRITISH CONSTITUTION: A DANGEROUS CASE OF THE EMPEROR’S CLOTHES, vol 41 (3rd edn, Parliamentary Affairs 1988) 340 340–361. 4 Thomas Paine, Common Sense, Rights of Man, and Other Essential Writings of Thomas Paine (DigireadsCom Publishing 2017) 11 11.

Sophia Stewart – Mr J Bachir terms of content. The US Constitution also outlines the executive, judiciary and legislative, the amendments of the Constitution set out the rights afforded to US citizens and checks and balances between the branches are established. For a great deal of the time the constitution is certain, found in statues or authoritative works, however in conventions the level of certainty significantly decreases. Conventions are politically binding, long-established and informal procedural traditions that inform political and legal decisions. The difficulties that arise from conventions is that they can be often be interpreted differently or simply not followed at all as they are not legally binding (R (Miller) v Secretary of State for Exiting the European Union).5 In 2015, David Cameron made it convention that Parliament is approached by the Prime Minister when taking action against foreign nations. In 2018, Theresa May refused to hold a parliamentary vote on airstrikes in Syria, and exercised her prerogative powers as opposed to consulting Parliament. This exemplifies the uncertainty within the UK constitution as there is a lack of consistency and reliability provided by conventions. There are suggestions of further Constitutional reform which would codify conventions, enshrining and better establishing them. The aims of this reform would be to educate individuals about the current constitution and to aid people attempting to make constitutional change - as a better understanding of the system would be more accessible.6 The certainty of the content of the constitution is of paramount importance to ensure there is consistent and coherent application of the rules – anything to improve this certainty, such as the codification of conventions, would improve clarity and make the constitution easier to navigate. Overall, the constitution is sometimes 5 “Hilary Term [2017] UKSC 5 On Appeals from: [2016] EWHC 2768 (Admin) and [2016] NIQB 85 JUDGMENT R (on the Application of Miller and Another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) REFERENCE by the Attorney General Fo,” vol 6 (2017) 6 James Melton, Christine Stuart and Daniel Helen, “TO CODIFY OR NOT TO CODIFY? LESSONS FROM CONSOLIDATING THE UNITED KINGDOM’S CONSTITUTIONAL STATUTES” (2015) accessed November 17, 2020.

Sophia Stewart – Mr J Bachir uncertain in content – and therefore, decreases its ‘legitimacy’. Despite this, a large part of the constitution is statute and legislation and is consequently protected by and enshrined in law – keeping much of its integrity. Particularly because the majority of governmental power allocation rules, individual rights and checks and balances are written and recorded and conventions account for only a part of these.

It is a commonly argued point that the UK constitution is easily changed, this is, however, a somewhat “superficial argument”.7 An exemplification of the changeability of our constitution is Royal Prerogative, which is a non-legal source of the constitution, referring to the powers which were previously exercised by the crown and have since been handed to the government. These powers issued to government include declaring war, issuing passports or the making of peace, and can be exercised by the government without approval from Parliament. This adds flexibility8 because the Prerogative allows constitutional decisions to be made without formal procedure or the passing of an Act of Parliament. Changeability can be viewed as a strength of a constitution because it prevents the entrenchment of out-of-date values or rules and allows adaptability to societal changes – for example, devolution to Scotland, Wales and Northern Ireland. Despite this, the constitution is less changeable than often perceived. Constitutional conventions are deep-rooted and important traditions. It would be perceived that because they are not legally binding and that they are flexible. In practice this is not necessarily true because they are so well established. The UK, due to a lack of entrenchment within the constitution, has somewhat relaxed procedures when altering the law, it does not require a special majority in Parliament such as the ‘supermajority’ in the US congress. If the UK government wanted to better enshrine the rules of the constitution, 7 Adam Tomkins and Oxford University Press, Public Law (Oxford University Press 2003) 14 8 Adam Tomkins and Oxford University Press, Public Law (Oxford University Press 2003)

Sophia Stewart – Mr J Bachir they may seek to introduce a similar special voting system. The extent of changeability is not indicative of a constitution, the role of the constitution is to outline the rules of the state. It is therefore, not about if these rules can or can’t change. It is about the content of the constitution as opposed to the flexibility of it.

The British constitution, although diverse, sometimes uncertain and malleable, is nonetheless an effective constitution. As demonstrated in this essay, it meets the important criteria set in the introduction and holds all the same characteristics. The UK has never had a monumental societal shift in attitudes, a liberation or an independence which would require such codification, it comes as a result of gradual change. The origin of the constitution, and therefore the rules that allocate governmental powers is different, but the content is similar to that of every other, therefore narrowing the ‘doubt’ of a constitution in the UK.

Word count: 1500

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