Public Law Assignment: Codified Constitution Analysis, August 2022

This Public Law assignment delves into the intricacies of the UK's uncodified constitution, exploring its historical context and the reasons behind its unwritten nature. It examines the advantages and disadvantages of the UK's current constitutional framework, contrasting it with the potential benefits and drawbacks of a codified constitution. The assignment analyzes the views of Melton, Stuart, and Helen, evaluating their arguments regarding codification. It also discusses the key principles of the British constitution, such as the rule of law and parliamentary sovereignty, and considers the impact of an uncodified constitution on the separation of powers and the protection of rights. The assignment concludes by assessing the arguments for and against codifying the UK constitution, weighing the flexibility and adaptability of the current system against the need for greater clarity and accountability.

Young, A.L., 2018 Candidate Number: Click here to enter text.
ANSWER BOOKLET
GDL: PUBLIC LAW AUGUST 2022 EXAM
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Table of Contents
QUESTION 1.................................................................................................3
QUESTION 2.................................................................................................7
QUESTION 6...............................................................................................15
REFERENCES..............................................................................................19

Young, A.L., 2018 Candidate Number: Click here to enter text.
PUBLIC LAW
INSTRUCTIONS TO CANDIDATES
Where questions are sub-divided, candidates should not expect the sub-divisions
necessarily to be of equal weight.
You must answer THREE questions out of SIX.
You may refer to your GDL Statutory Extracts.
There is a maximum word limit of 6,000. Words in excess of this limit will not
be marked.
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QUESTION 1
“Government in the UK has … functioned relatively well without a formally codified
constitution for generations. These facts suggest that the benefits of further
codification are likely to be minimal.”
James Melton, Christine Stuart and Daniel Helen, To codify or not to codify? Lessons
from consolidating the UK’s constitutional statutes (The Constitution Unit, March
2015)
Explain briefly why the UK lacks a formally codified (i.e. written) constitution.
Consider the advantages and disadvantages of the UK adopting such a
constitution, evaluating the view of Melton, Stuart and Helen.
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Answer1. The constitution of the United Kingdom is often said to be unwritten, this is not
completely correct. Most of the part of the UK constitution is written but it was written in
different documents but, it has never been codified or brought into the single document. This
structure of UK constitution makes it different from other countries but there are some
countries like New Zealand, and Israel who also lack a codified constitution. To have a
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written constitution it means there are some major historic turning point like; the aid of
independence, revolution, failure in war or when the prior system got completely damaged.
But in the United Kingdom, nothing was happened like this and that's become the reason in
UK there is no need to make their constitution codified (Norton, 2020). The UK has a
constitution which was found through leading statutes, conventions, judicial decisions &
treaties. There are some constitutional statutes which includes the Bill of Rights1689, Acts of
Union 1707 & 1808, Act of Settlement 1701, Parliament Act 1911 and 1949, Human Rights
Act 1998 and the other jurisdiction i.e. Scotland Act, Northern Island Act and Government of
Wales Act 1998. Apart from the statutes there are some conventions which are codified in the
documents such as; Monarch Act on the advice of ministers. The parliament of the UK is
Sovereign power in regarding to give the proper meaning of the British constitution. There are
some other crucial principles of the British constitution such as; Rule of Law, separation of
government into executive, legislative and judicial branches and the independence of the
judiciary. The main difficulty which can be seen or realised of having the uncodified
constitution is it become difficult to understand. But also it is very flexible and amendment
can be done easily. The UK point of view on uncodified constitution is that, in order to have
the constitutional democracy it is not necessary to have the codified constitution (Rapp, 2022).
In the codified constitution the judges have invested their powers to interpretation, this would
raise a difficulty as the judges are not elected but they have the power to overruled the elected
representatives of the people. The written constitution is only good for the politicians where
Human Rights are highly breached in spite of having the codified constitution. The
constitution is more to a written documents or what is written in the books. The actual
constitution is the one which actually govern the function of government.
Views of Melton, Stuart and Helen on UK constitution
On comparing the the constitution of UK with the other countries it reveals that, there
are various topics which got covered in the constitution of other countries but these were
missing in the UK uncodified constitution. The most important function of the constitution of
any country is to determine the political system, process of appointment and regulation,
structure of the executives, office of the Prime Minister to oversee the functions of the
legislature was missing in the UK constitution. It was a history that constitution has always
contained the structures and selection procedures for the executives and the legislative
branches of the government. The efforts was started over the centuries through piecemeal
reforms. Through these reforms the elements of UK constitution were controversial because
they were unclear or they were in need to reform and bring some clarity. The remaining
elements of the constitutional which are uncontroversial were left uncodified as a result of
this, some important elements of written constitution were absent from the UK constitution.
To make the constitution of UK codified the struggle was very difficult and to find out the
same question there is a committee which attempts to know the reason behind the uncodified
constitution, there is a committee known as Political and Constitutional Reform Committee
2014. according to the committee there is a requirement of drafting a codified constitution
which consist clearly and coherently settlement of laws. This in only the organisation which
working for the codified constitution, there are Scottish Independence Referendum, both civil
and political parties have put an effort to bring the constitutional convention. The main
purpose of bring such convention is to bring the changes in the constitution or even writing
the new constitution. There is LSE housed which has also been promoting a constitutional re-
write. They are seeking to write the UK constitution by using Crowdsourcing, where the
public of the UK not only decide the topics to get addressed but also they suggest the way to
address them. There are three reasons to make the constitution of UK codified i.e. it increase
the transparency about the UK constitution, the main argument in codification of the
constitution is that it will increase knowledge about the UK constitution rules and the areas of
rules (Young, 2018). The main piece of UK constitution which are not codified in the relevant
statutes are written different documents, the primary one is the Cabinet Manual.

Young, A.L., 2018 Candidate Number: Click here to enter text.
The second reason is to interpretation of the constitutional rules easily. The major
disadvantages of the UK constitution is the uncertainty about the rules created by the
dependency of conventions.
Advantages of uncodified constitution of the United Kingdom
The constitution of UK is unwritten, people have different opinion and view on the uncodified
status of the UK constitution. Some affirms the uncodified status because it offers more
flexibility. There are instances where the constitution was modified very frequently over the
years because of the changing time and circumstances. It has been also argued on the point
that unlike other countries having written constitution is quite hard to amend or modified
written constitution. Majority of the people believes that having an unwritten constitution
reflects more democratic factors because of its flexibility in context of present generation or
circumstances. It does not follow the old strict legacy of being bound on the decisions. Rather
it permits the liberty to every subsequent generations to determine constitution by way of
democratic elections. The government representatives carry out the peoples choice and bring
constitutional reforms as per the needs and demands of the people.
 The most prominent advantage of it is adaptability because being uncodified status
provides easy reform without the approval of the parliament.
 It forms strong government because the executives of the government are entrusted
with enormous power over the legislation, especially in the House of commons.
 There is Transparency and accountability, it directs the government to remain
accountable to the parliament.
 The constitutional reform of 1997, promised the introduction of modernisation,
decentralization, democratisation and rights.
 Adaptability of Modernization was the step of immediate reform in the Government
institution.
 It promotes the Democratisation which allows more political participation by way of
referendums and electoral reform.
 The rights of the UK citizens are guaranteed and strengthened.
 It empowers devolved assemblies along with their local government for enhancing
their role in the democracy.
Most of the constitutional reform was initiated in the period of Blairite administration which
was between 1997-2001. whereas, the Constitutional Reform Act 2005 also introduced the
major changes in the UK judicial administration.
Disadvantages of uncodified constitution of the United Kingdom
The other thinkers or critics are of the view that the uncodified institution keeps the UK
political system is abusive. They argue that there is very limited checks on the authority of the
government, the representatives of both the house abuse their authority and alter the laws and
regulations for their own advantage (Ryan, 2021). Some think that the uncodified status of the
UK constitution is pragmatic or philosophical, which means that the constitution is not whole
because of its unwritten existence and this results into negative consequences. It is unwritten,
that means it is vague and ambiguous which creates more confusion to understand it. The
citizens or a layman finds it very hard to understand their constitutions this allows the
government to abuse its position. The lack of clarity increase exploitation by those who are in
power and the political institutions stuck in doubts relating to their roles and responsibilities
towards their nation and citizens. The people who advocate in favour of codified constitution
argues that the political system allows the government to work in the best interest of the
public and the public too have the liberty to engage with the government.
 The UK constitutions is outdated and not democratic because the key principles of it
are derived from the UK common law, including royal prerogative which is being
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followed since the medieval period. There is a continue prevalence of unelected house
of lords which was the process of pre-democratic era.
 The power is concentrated with the central government. The rule of law remains
unprotected because of its parliamentary sovereignty and uncodified constitution. For
instance, where a government with strong majority in the house of commons has the
power to overlap the legislation which lower down the power of government
institutions. It is also called as 'elective dictatorship'.
 There is lack of clarity, because of its uncodified nature and it makes the UK
constitution more unclear. It makes difficult for judiciary to interpret the intention of
government even if the government has acted unconstitutionally. The government can
overturn the decisions of the court by exercising their power. Further, the rights and
freedoms of the citizen are vaguely defined which is open to many loopholes for an
elective dictatorship.
 After the Brexit, the UK has got its parliamentary sovereignty which it had lost when
it became the member of the European Union. The only source of the constitution of
UK was the European Law (Saunders, 2019). The process of Brexit has triggered the
Article 50 of the constitution, which lead to imply two years of negotiations between
the European Union and UK.
In general, A constitution is a collection of most important rules and common understanding
in any given country, which aims to regulate the relations between the country's governing
institutions and also the relationship between those governing main institutions and the people
country. It has an elevated status which states how a country should be run, the process of
democracy and its all faculties including representatives of the governments are created by the
constitution (Young, 2018). Therefore, a constitution must be written with the view to prevent
the practice of dictatorship. In respect of the UK constitution and its framework is consists on
mainly four key principles, the Rule of law, Constitutional Monarchy, Parliamentary
sovereignty, Parliamentary government and European Union Membership. These principles
are established to make rules for the society by way of legislative process.
The views of Melton, Stuart and Helen in this regard have consolidated the work in the form
of text s on the UK's constitutionally status in a single document. They have explained and
focused on the UK'S constitutional standard and structure which is according to them already
written in the statute form. The UK constitution is divided into different parts, the executives,
the legislatures and the creation of relationship between government and the role of the
government is to prioritised the constitution if codified.

Young, A.L., 2018 Candidate Number: Click here to enter text.
QUESTION 2
“[T]he doctrine of the separation of powers … is reflected in the constitutions of many
countries – including, to a limited extent, the UK.”
Mark Elliott and Robert Thomas, Public Law (4th edition, OUP 2020)
Explain what is meant by the principle of the separation of powers. Consider
how far a separation of powers is reflected in the constitution of the UK,
evaluating the view of Elliott and Thomas as to its “limited extent”.
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TYPE YOUR ANSWER HERE
Answer 2. The term separation of power means the independence of the three main principle
institutions of the country. These governmental organs are the to be managed as per the
articles of the constitution. These has to be followed by every member of the parliament.
There is a quite need of importance of this separation. But, the separation of the power is not
adequate in UK. The organs are the legislative, executive and judiciary. All the three organs
holds its separate importance of being independent in the country. These would provide that
the power would help in serving the justice to the society. The legislative is responsible to
make the laws for the country. The executive is liable to make sure that the laws are being
implemented in the country. The last organ is judiciary which includes all the civil and
criminal courts of the country. The main role of the judiciary is to serve the justice in the
country. This would aid the sufferer-ors to seek the justice from the designated judges of the
court(Al, 2021). It is also held liable that the independence of judiciary is necessary because
without it no justice can be provided by the courts of the country. The independence of
judiciary helps the judiciary to does not discriminate people on the basis of rich or poor, caste,
language, social status, etc. Hence, through the judiciary works in the most efficient manner.
Moreover, almost all the countries who are democratic enjoys the independence of judiciary.
In case of legislative, it would help the members to frame the laws irrespective of any type of
discrimination in the society. These would aid them to make the laws for the benefit of the
individuals residing in the society. The executive includes the police officers who arrest the
persons who fails to fulfil the laws of the country. Moreover, the judiciary would punish the
criminals as per their case in the courts of the country.
As per the view of Montesquieu in 1748, when legislative and executive powers are united in
the same individual or in the same body of judges the result would always be no liberty. As
per this view, there would be an end to all the things, if all these three organs is to be
controlled by the same man or same body in the country.
According to a strict rendering of the separation of powers, no one of these three
branches may exercise the power of other organ, neither should any person be a member of
any two of the divisions. This would include that there would be no control of same person by
creating detached institutions because it is possible to have a method of checks and balances
between them. But in the case of United Kingdom, it does not has a classic separation of
powers. In the UK, the executive is made up of the Crown and the Government that would
include the Prime Minister as well as the Cabinet ministers. This would include the
legislature, parliament, the Crown, the House of Commons along with the House of Lords.
The judiciary has the judges in courts of law, those who has the judicial office in courts. It
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would also lay magistrates who handles the staff of the magistrates’ courts(Arias and
Kouroutakis, 2020).
The separation of powers is very important due to its proviso a important system of checks
and balances. It do make sure that the various branches control each other. It is being done on
intent to make them accountable to the other. It too divides the power between the different
organs of system. This balance intents to ensure that no single or group of people in
government is all-powerful. It also implies that the power is to be allocated as well as not
centralized to one specific branch. Hence, the main purpose of the separation of powers is to
halt the abuse of power. The UK Constitution is uncodified that means there is no particular
rule, which is no official writing that outlines the lawfulness of separation of powers. The
government of United Kingdom has to overlap between the two divisions. The instance of this
can be taken as the ministers in the executive branch could too sit and make decisions in the
legislative division of the government of UK. Hence, it explains that the executive is fused.
This can be seen that how this overlap between the powers of authorities could be seen in the
present scenario. Moreover, the Lord Chancellor is the head of the governance of England and
Wales, its one of the members in cabinet along with the speaker of the House of Lords in
United Kingdom. (Bilchitz, 2018)
Constitutional Reforms Act 2005, this particular act prevents the abuse of powers by acting
as a supervising authority over such authorities. It also helps in determining the concept of
separation of powers in United Kingdom. Basically, it ensures checks and balances over the
misuse of the powers. It also promotes the concept of separation of powers.
It is very much needed in United Kingdom to take the legal philosophy into function to a
great extent so that it could prevent the instability in the constitution of the country. As if the
crown will continue to interference with the functioning of the government it will continue to
create the situation of disorder among the legislative, executer y and judiciary. In order to
avoid such issues it is important that the parliament of the country must adopt the
aforementioned concept. Might is right was a concept that is being used in earlier period when
there is no democratic authority risen in the world but now democracy have changed the
facets of the government that is ruling in accordance with the choice of people(Dowson,
2022).
In order to work efficiently, constitution of a country need to divide its powers and authorities
in such a way that it could be able to manage the function of the state in an appropriate
manner. This particular concept of allocation of authorities is known as 'Separation of
Powers'. It basically means that the government of the country divides the powers among the
major institutions so that the state should not face any kind of discrepancy in making and
executing the laws. It is done because it is important to make a state functionally independent.
In United Kingdom, the government has not taken this approach seriously. As we all know,
under separation of power, the roles of each institution is bifurcated which are usually named
as Legislature, Executive and Judiciary. These are those governing authorities that particularly
focus on enacting, executing and removing any sort of deviation in a specific legislation. But
according to the situation that has been emerging under separation of power, Elliot and
Thomas are the two renowned authors who provided their view in terms of the above stated
concept. In their view, the basic function of the country's constitution is to apportion the
powers among various government institutions. It will help in maintaining balance by setting
out the limitations for each pillar. Elliot in its article stated that the philosophy of separation
of powers is not being followed in a concrete manner.
The Supreme Court of UK which holds the single jurisdiction all over the country has
failed in developing the legal assimilation of separation of power. In United Kingdom, there is
an intervention of crown among the three institutions of government. If compared with the

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other countries such as US, India, etc. every branch in which the authorities are being divided
are more separate than UK. The functioning of the three pillars are tangled to a great extent.
This is all because the crown interfere between the matters of law making process of the
country. The execution of such laws are being done after the sanctioning of the crown.
Further, the judiciary is unable to pose its observations regarding any sort of variation or
divergence that has been marked out in any case or law. The inclusion of separation among
these powers will provide more legitimacy to the laws that are enacted purposely by the
Parliament of the country. Legitimacy provides authenticity and credibility to the laws that are
ordained by the government. This could be one of reasons behind no special legal status given
to the UK constitution. In the view of Thomas, the law makers of the said country are capable
enough to enact such laws that are enacted in accordance with the fundamental principles and
rights but the legislators did not take it earnestly. This is all because there is no separation
philosophy has taken place till now. Whatever may be the reason, whether non- serious
approach of the authorities or interference of the crown, the authenticity of the legislations
will going to loose its identity. According to Elliot and Thomas, separation of powers are
required to be included in the constitution of UK to an extent that it could divide the functions
of each wing distinctly. So that they may can play their own roles in a confound manner
without encroaching upon the functions of other pillars of government. Basically, the purpose
of the constitution must be kept in mind that is allotment of the powers and authorities to
different agencies according to their described roles. It helps in avoiding the situation of
monarchy and centralisation of power. As democracy could be enforced when there will be no
abuse of powers and this could be done only through the implication of separation of
powers(Hopkins, 2019).
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QUESTION 3
If you choose to answer Question 3, you must answer BOTH Part A and Part B.
PART A
“It is crystal clear that the carefully and subtly drafted Human Rights Act 1998
preserves the principle of parliamentary sovereignty.”
Lord Steyn in R v Director of Public Prosecutions ex parte Kebilene and Others
[2000] AC 326 at 367
Explain briefly the principle of parliamentary sovereignty (or supremacy) and
evaluate Lord Steyn’s view by reference to relevant provisions of the Human
Rights Act 1998 and their application by the courts.
PART B
For the purposes of this part only, assume that Parliament enacted the Terrorism
Investigations Act 2017 (“the TIA”) (fictitious), permitting the detention without charge
of terrorist suspects for up to six weeks. Section 5 of the TIA provides that “no
amendment or repeal of this Act shall be valid unless passed by a 75 majority of
those voting separately in the House of Commons and in the House of Lords”.
Following a recent closely-contested general election and change of government,
Parliament enacted the Counter Terrorism Act 2022 (“the CTA”) (fictitious). The CTA
expressly repeals the TIA and prescribes a period of detention without charge in
terrorism cases of up to three weeks. The CTA was passed by a majority of 55% of
those voting in the House of Commons and 60% of those voting in the House of
Lords.
Nigel, the previous Prime Minister and now Leader of the Opposition, seeks advice
regarding a legal challenge to the validity of the CTA as it was not passed by either
House of Parliament in accordance with section 5 of the TIA. Nigel contends that the
TIA remains the current law regulating detention without charge of terrorism
suspects.
Advise Nigel as to the constitutional issues arising from any legal challenge to
the CTA and whether any such challenge is likely to be successful.
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TYPE YOUR ANSWER HERE

Young, A.L., 2018 Candidate Number: Click here to enter text.
QUESTION 4
With the aim of streamlining local government administration in England, Parliament
enacted the Local Government Act 2021 (“the Act”) (fictitious). The Act gives the
Secretary of State for Local Government and Communities (“the Secretary of State”)
power to issue a “merger order” merging two or more local authorities to promote
administrative efficiency.
The Act requires the Secretary of State to publish a merger order in draft and, if any
of the local authorities affected by it object to it, to arrange a public inquiry conducted
by an independent inspector. Upon receipt of the inspector’s report, the Secretary of
State must then decide whether to confirm the merger order.
Section 22 of the Act provides that, at least 14 days prior to an inquiry taking place,
both the Secretary of State and any objecting local authority must disclose to each
other details of the evidence on which they propose to rely.
Section 35 of the Act provides that “No decision of the Secretary of State shall be
challenged in any legal proceedings”.
The Secretary of State issued a draft merger order to merge Henby District Council
(“HDC”) with Blackton District Council (“BDC”). HDC objected on the basis that the
proposed merger would not promote administrative efficiency. A public inquiry was
held.
At the inquiry, the Secretary of State relied on evidence from an expert in local
government who stated that, if the merger were to proceed, it would substantially
reduce the cost of providing local government services. HDC was only given notice
of the expert’s evidence two days before the inquiry. The inspector admitted the
evidence into the inquiry despite HDC’s protest that it had had insufficient time to
prepare its own evidence in response to the expert. The Chief Executive of HDC
was also only permitted to speak for five minutes, although he had prepared a
detailed presentation to explain HDC’s objections to the merger order.
Last week, following the inspector’s recommendation, the Secretary of State
confirmed the merger order. The Secretary of State’s letter of confirmation to HDC
and BDC stated that the merger of the two councils “would undoubtedly promote
administrative efficiency and would also release council buildings for private
redevelopment as housing”. No previous mention has been made of private
redevelopment.
(a) Consider whether HDC may make a claim for judicial review of the
decision of the Secretary of State and if so, upon what grounds.
(b) Assuming HDC’s claim is successful, explain what remedy or remedies it
should seek.
(c) Outline the procedure which HDC must follow to make a claim for judicial
review.
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