Should the UK Adopt a Written Constitution

Question 1

Intro

Answer 1

The UK is described as different to modern liberal democracies due to its uncodified constitution

Unlike other countries with a single document outlining fundamental laws, the UK is complex with evolving statutes, common law & works of authority

Will explore for & against adopting a written constitution in the UK

References case law such as R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and R (Jackson) v Attorney General [2005] UKHL 56

Question 2

Current Constitutional Framework

Answer 2

UK constitution flexible consisting of

Statute law
- Human Rights Act 1998

Common law
- Entick v Carrington [1765]

Constitutional conventions
- Ministerial responsibility

Works of Authority
- Dicey’s Intro to Study of Law of Constitution

Characteristics
- Uncodified & flexible, allows to evolve in response to political & social change

Question 3

For Written Constitution - Clarity

Answer 3

Primary argument for a written constitution is

• would bring clarity to constitutional principals
• public currently struggle to navigate sources of UK’s constitution
• single document would improve public understanding of government powers

Question 4

For - Limits Parliamentary Sovereignty

Answer 4

Doctrine of sovereignty, articulated by Dicey, states parliament can unmake any law

Principal means few legal constraints on Parliament

Written constitution could impose limits on gov power preventing abuses

R (Jackson) v Attorney General [2005] Lords questioned if sovereignty is unlimited, suggesting judicial review of Acts of Parliament may be possible in some cases

Written constitution could clarify boundaries of sovereignty

Question 5

For - Protection of Rights

Answer 5

HRA 1998 incorporated ECHR into domestic law, doesn’t give courts power to invalidate incompatible legislation to Convention

Written constitution could entrench rights & provide courts with power to strike down legislation violating those rights

A v Secretary of State for Home Department [2004] UKHL 56 highlighted concern
- HOL held detention without trial under Anti-terrorism, Crime & Security Act 2001 unlawful, couldn’t invalidate statute

Question 6

Against - Flexibility

Answer 6

Key strength of UK’s uncodified constitution is ability to evolve without need for complex amendments

Allows legal system to adapt to political changes

Constitutional reform such as devolution of powers to Scotland, Wales & NI been achieved through legislation without need for constitutional amendments

Question 7

Against - Judicial Overreach

Answer 7

Written constitution necessitates stronger role for judiciary in enforcing constitutional norms

Some argue this would undermine democratic accountability

Current system, after Constitutional Reform Act 2005, has expanded judicial power

Fears further codification could shift power from elected representatives to unelected judges

Question 8

Relevant Case Law

Answer 8

Jackson v Attorney General [2005] UKHL 56
- Lord Steyn & Hope suggested sovereignty may not be absolute, indicating judicial willingness to place limits on legislative power

Question 9

Conclusion

Answer 9

Uncodified constitution has provided stability & flexibility, recent political & legal developments have exposed vulnerabilities

Absence of constitutional boundaries can lead to confusion & weak protection of rights

Adopting a written constitution could enhance clarity & entrench civil liberties

While a written constitution isn’t without challenges, it’s becoming necessary for the UK to maintain a transparent democratic system