Constitutional law is concerned with the overall constitutional structure which a country is governed. The narrow meaning of a constitution relates to documents with legal sanctity setting out the framework and principal functions of the Government. In consideration of this definition, the UK does not have a constitution. The broad meaning of a constitution is the whole system of government of a country, the collection of rules which establish and regulate the government. In this sense, the UK does have a constitution. The most significant constitutional principles concern Parliamentary supremacy, the rule of law and the separation of powers. Parliamentary supremacy allows UK Parliament to make and unmake any law and the courts cannot strike down any legislation enacted by Parliament as unconstitutional. The rule of law ensures that the government and all other bodies are bound by the law. The separation of powers refers to the powers of the state being allocated by the legislature. The purpose of this is to avoid the overconcentration of power and ensure checks and balances in the constitution, as per Miller v Cherry [2019]. The labour governments of 1997-2010 implemented a set of constitutional reforms, such as the introduction of new voting arrangements and the creation of the UK supreme court. Unusually, the UK constitutional law can be amended provided that the government can persuade Parliament to enact the necessary legislation. The UK Constitution is differing from others, the UK does not have such a text, and the UK Parliament is unrestrained in its law-making capacity Blick (2016). One example of this is that the Monarchy is not democratically elected, instead, the monarch inherits their position. In comparison to the USA whose President is personally elected by the people.
One distinct feature of the UK Constitution is its unwritten and uncodified nature. The UK constitution is described as uncodified due to the fact that there is no single document entitled ‘The UK Constitution’. Instead, there has been the implementation of various constitutional laws, practices and common law found scattered amongst pieces of legislation, court decisions, constitutional conventions, codes of conduct and practices. The UK has not experienced any ‘cataclysmic events’ (such as a revolution) so hasn’t had the need for reform or the progression towards a codified constitution. ‘So far there hasn’t been a ‘constitutional moment’ at which the fundamental rules required clarification’ (Elliot and Thomas 2020). The lack of a codification can also be explained by reference to a lack of public appetite; the British public have addressed that the distinctive nature of their unwritten constitution has provided them with superior protection of their rights and liberties. Feldman (2005) argues that there are 4 rules for constitution: to establish the institution’s functions, have control to stop institutions acting improperly, confer respectability and legitimacy on the state system and be elastic and allow for change. He argues that codification is unnecessary, as long as these rules are implemented. The UK’s uncodified constitution is not a product of a deliberate design but ‘develops piecemeal over time’ (Elliot and Thomas 2020). This is evidenced by the major constitutional reforms undertaken since 1997 which have formed a rolling, sometimes disjointed, programme rather than a coherent package.
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There has been extensive debate about whether there is a need for the codification of the UK Constitution. Bogdanor (2007) emphasises that a codified constitution would provide for a more accessible set of constitutional arrangements, making it easier for people to understand them. Codification also represents an unprecedented opportunity for major reform that might address ongoing concerns such as: the scale of executive power, the adequacy of arrangements for holding the executive to account, the unelected nature of the House of Lords, etc. Blick (2016) proposes that a codified UK Constitution would provide greater protection for core principles, such as human rights, and that drafting the constitutional text could provide the opportunity for bringing about certain reforms in the process, such as changes to the electoral system. The codification of the UK Constitution would also provide an opportunity for greater formalisation. Putting political aspects of the constitution into legal reform would address concerns about the willingness of politicians to exploit the uncertainty and the limited enforceability of elements of the political constitution, e.g. Boris Johnson’s willingness to advise the Queen to suspend Parliament in September 2019 ran counter to constitutional convention. Arguably, legally enforceable arrangements included within a written constitution would have prevented this.
However, Blick (2016) also suggests that a written constitution would mean losing valuable flexibility in our system, shifting excessive power to the courts and the task of producing such a document would be ‘demanding and divisive’. ‘It would be naïve to assume that a codified constitution would be some universal cure for all constitutional problems’ (Barber 2008), and therefore codification could be viewed as an inefficient use of resources. Adopting a codified constitution would require hard questions to be confronted, such as how detailed would the constitution be? And would conventions be made legally enforceable? The fact that such questions would have to be confronted suggests that producing a codified constitution would require the adoption of a complex process that would be lengthy and potentially costly, ‘the enterprise would be daunting and scale and complexity, and there could be no guarantee that it would succeed’ (HM Government 2007).
One prominent feature of the UK Constitution is our constitutional monarchy. The Queen is head of state and has the power to pass laws. In constitutional terms, the Queen does possess executive powers to appoint Ministers, dissolve Parliament and grant royal assent to legislation. However, in practice, such powers are not exercised by the monarch personally, but by elected politicians; the queen is merely a figurehead. In one sense, the Crown is merely ‘an object of jewelled headgear under guard at the Tower of London’ (Elliot and Thomas 2020). In another sense, the Crown is an important symbol of continuity and change in the British constitution. Undeniably, one key principle of the UK Constitution is its monarchical nature, however, the extent to which this feature is still relevant today is debatable. As a symbol of royal authority, the Crown was used in pre-modern, medieval times to refer to the monarch when doing acts of government as opposed to acts undertaken by the monarch in his or her personal capacity. To preserve continuity with the past, the concept of the Crown has been retained, although, in practice governmental power is now exercised by both elected politicians and their administrators in the name of the Crown rather than by the monarch personally. Despite this, as Garcia and Hall (2017) allude, ‘the role of the Monarch in relation to the church still has tangible social influence’.
The religious nature of the UK Constitution is also a principal feature. When a monarch is sworn in, they swear their allegiance with the church of England and the church of Scotland. When the queen is in England, she is Anglican, and when she is in Scotland, she is Presbyterian. There are also 26 bishops of the church who are automatically granted seats within the House of Lords. In 2015, David Cameron described how ‘this is a Christian country’, placing emphasises on the religious nature of the constitution and how, despite it having ‘deep historical roots’ (McHarg 2020), religion is still a prominent principal feature. Arguably, the concept of separation of powers is enhanced by the religious character of the Constitution. It allows for a spiritual perspective to be fed into the collective dialogue on the exercise of power and the management of the same by the legislature. It also ensures that faith-based issues relating to separation of powers are effectively managed. Garcia and Hall (2017), state that ‘the religious legal framework with which we are working in twenty-first century Britain is not merely functional, but positive for society and in harmony with the fundamental pillars of our modern Constitution’. However, there remain those who argue that the present legal and constitutional framework does not enjoy a healthy relationship with religion. There are commentators at the other end of the spectrum who argue that a legal framework which incorporates a state Church is not simply a suboptimal arrangement, but in breach of international law.
McHarg (2020) describes how one of the most defining features of the UK’s Constitution is its flexibility. Broadly speaking, the uncodified and unwritten nature of the constitution allows for flexibility, but there are political and economical restrictions to this flexibility. As well as this, the UK Constitution is unitary rather than federal, despite some powers being devolved to Scotland, Wales and Northern Ireland.
To summarise, the unconventional UK Constitution is: partially unwritten, uncodified, religious and monarchical in nature, flexible and unitary. The constitution can best be seen as the machinery through which we give authority to, choose between, and accommodate conflicts between visions, rather than a set of settled rules (Jones 2016). There is no current demand for constitutional change and its uncodified, religious and monarchical nature appears to function efficiently.
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