Public Law - Critical Evaluation: The UK and Written Constitution

This essay critically examines the significance of a written constitution in the United Kingdom, exploring the arguments for and against its adoption. It discusses the differences between codified and uncodified constitutions, highlighting the UK's unique position in not having a single constitutional document. The essay delves into the potential impacts of a written constitution on government authority, citizen rights, and the balance of power, referencing key legal acts like the Human Rights Act and Devolution Act. Arguments in favor include increased clarity, limited government, and protection of individual liberties, while counterarguments focus on the inflexibility of written constitutions and the potential disruption of the UK's long-standing democratic traditions. The essay concludes by weighing the benefits of clarity and transparency against the value of flexibility, ultimately presenting a balanced perspective on the complex issue of constitutional reform in the UK. Desklib provides a platform to access similar solved assignments and study resources for students.

Running head: ESSAY 0
public law
JULY 25, 2018
STUDENT DETAILS:

ESSAY 1
Introduction
The constitution is document, which represents the most significant laws. The
constitution defines the power of government and rights of citizens. It gives the
authority within the jurisdiction. There are many types of constitutions such as
codified constitution, uncodified constitution, unitary constitution, and federal
constitution. Some countries have written constitution and some countries do not
have written constitution. United Kingdom has no documented constitution. United
Kingdom has rules of constitution documented in regulations, laws, and judicial
judgement.
The lack of written constitution in the United Kingdom has significant attention over
the past times in respect of meeting the expectations of the British citizens by current
constitutional arrangements. This matter is contentious in the principle of British
constitutional law. There are many consequences of not having written constitution.
The United Kingdom has no bill of rights to give the security to the people from an
over strong state. The written constitution provides the security from the activists or
rebels. If any external elements use power and try to neglect the self-governing
processes, then written constitution provides the security against these elements.
In this essay, the significance of written constitution in United Kingdom is discussed
and critically examined with the help of cases and examples.
Codified and uncodified constitution
The constitution, in which main constitutional provisions are placed in an only
document, is called codified constitution. Generally, it is known as written
constitution. It sets the duties, authorities, roles, and functions of the government

ESSAY 2
system in the word of higher law. It is judiciable. There are three main features of the
codified constitution. The major significance of codified constitution is that in codified
constitution, document has authority to establish the higher law. The second feature
is that codified constitution binds the administrative or political organisations
involving the organisations, which create the common law. The other feature of the
codified constitution is that it is not easy to alter or amend the provisions of codified
constitution1.
In the absence of the written constitution or codified constitution, a constitution is
made up of rules is called an uncodified constitution. The uncodified constitution has
no authority to make higher law. In the absence of higher law, there are no legal
standards. In the absence of legal standard, it is not possible for the magistrates to
announce the actions of other bodies are unconstitutional or constitutional. The
provisions of uncodified constitution are amendable. The provisions of uncodified
constitution may abolish or amend easily. It is not judiciable2.
Why United Kingdom does not have a written constitution
Most of all self-governing nations in the world have a codified constitution regulating
the part of common organisations within states. However, the United Kingdom does
not have one constitutional document. The reason is that it has been developed from
the 17th century to present period without legal moment. Contradictorily, the majority
of codified constitutions were legislated for new starting in the logic that they had a
historical break such as revolution. The other reason is that the constitution of United
Kingdom is even since the position of the constitution of United Kingdom is not
greater to other statues. Because of new constitutional improvements in United
1 Micheal Allen, ‘constitutional and administrative law’ (Oxford University Press 2011)
2 Neel Willson Barber, ‘Law and constitutional conventions’ (Sweet & Maxwell limited 2011)

ESSAY 3
Kingdom, the parliamentary sovereignty has under burden in present time. The
Human Right Act3 and the Devolution Act impose the restrictions on the authorities
and powers of the parliament of United Kingdom4.
Significances for adopting written or codified constitution in United Kingdom
Many arguments are made to support the opinion that it is required to adopt codified
constitution or written constitution in United Kingdom. The codified constitution will
make significant affects in United Kingdom. If United Kingdom adopts the written
constitution, then it will significantly influence the authority of government, powers of
government system, multi-stage governance, connection between parliament and
administrative authority, rights of citizens, freedom of citizens and relationship
between the magistrates and leaders. In latest period, United Kingdom has seen a
move to unnecessary administrative power lying with prime minister of country. For
example, in year 2003 in the case of Iraq Tony Blair stretched royal privilege
authorities and performed in his best interest by approving to interfere in the
worldwide war on terror. By adopting a written constitution, it will give guarantee of a
solid separation of rights and powers by which statutory and judges are able to
restrict excessive administrative power5.
The other opinion to support the written constitution is that it will make the rules and
regulations clearer. These major constitutional rules are placed together in only a
document, these rules and regulations are clearly specified in comparison of
unwritten constitution. In an unwritten constitution, rules and regulations are placed
in various different documents. An Unwritten constitution creates the confusion about
the meaning and significance of constitution. On the other hand, a written
3 The Human Right Act
4 The Devolution Act
5 Anthony King, ‘The British Constitution’ (Oxford University Press 2007)

ESSAY 4
constitution will not make confusion in respect of meaning of the rules and
regulations of the constitution. The unwritten constitution does not provide the surety
about the enforcement of the rules and regulations. On the contradiction, the written
constitution will give the surety about the enforcement of the rules and regulations6.
The strongest argument in the favour of the written constitution is limited government
in United Kingdom. If United Kingdom will adopt the written constitution then there
will be great improvement in the government system in United Kingdom. It will cut
down the size of government. The written constitution will successfully abolish the
principle of parliamentary powers and authority. The written constitution will also
abolish the elective dictatorship. The elective dictatorship is not a healthy practice. It
is a practice, in which administrative power is tested only by the requirement of
governments to win elections. In United Kingdom, it is specified in the capability of
government to perform in any way it entertains as long as it keeps control of the
House of Commons7.
The significant feature of adopting the written constitution is that the government
cannot make interference with the constitution because of the protection of the
constitution by the higher law. The written constitution will also permit for unbiased
understanding and impersonal explanation. The senior magistrate will monitor the
written constitution. It will make sure that the public bodies advocate the
constitutional provisions. The magistrates are above the politics so judges will act as
unbiased and impartial constitutional arbitrators. The written constitution also
6 Anthony Barnett, ‘the lure of greatness: England’s Brexit and America’s Trump’ (2017)
<https://www.theguardian.com/commentisfree/2016/nov/30/why-britain-needs-written-constitution>
accessed on 25 July 2018
7 Hilaire Barnett, ‘Constitutional and administrative law’ (Routledge press 2011)

ESSAY 5
promotes the education value. A codified constitution makes focus on the targets of
the government system. It also makes focus on the central values8.
A written constitution will support the citizenship. It will make a stronger sense of the
political recognition that can be significant in progressively diverse society. The other
argument to support the written constitution in United Kingdom is that a codified
constitution will help to give protection to rights and the individual liberty. The
individual liberty will specify the relationship between citizens and state so it will be
more secured. In this way, the rights of citizenship will be undoubtedly described.
The rights may enforce easily with written constitution. It is not so easy to enforce the
rights with the unwritten constitution of United Kingdom. The elective dictatorship
confines the right. In this way, these rights may define by the bill or rights in a written
constitution. The bill of rights refers to a document, which states the rights and
freedoms of citizen. It describes the legal extent of civil authority9.
In against of introducing a written constitution in United Kingdom
Contradictorily, there are many arguments against the introduction of a written
constitution. It is argued that the written constitution is reflected as inflexible.
Provisions cannot altered or abolished easily. It is not so easy to change higher law
in comparison of statue law. It is too difficult to make amendments in a codified
constitution. On the other hand, it is too quick and easy to implement the acts of
parliament. An unwritten constitution is not so rigid. It is not entrenched just like a
written constitution. Because of the inflexible nature of written constitution, it is not so
possible for the constitution to be updated. It is also not possible to be relevant
constitution. As a written constitution cannot alter in easy manner, so it finds
8 Jack Beatson, ‘Reforming a written constitution’ (Routledge 2010)
9 Andrew Bradley, ‘constitutional and administrative law’ (Pearson press 2011)

ESSAY 6
impossible to react to altering the political situations and common circumstances.
The major drawback of a written constitution is that it is rigid. In the present ever-
changing time, it is very important to adopt the flexibility10.
Further, the second argument against accepting a written constitution is legal
dictatorship and the self-governing rule in United Kingdom. The long-time of constant
rule in United Kingdom is reflect as strong point of an uncodified constitution. In an
unwritten constitution of United Kingdom, the supreme constitutional authority is
conferred in elected House of Commons. The alterations of constitution are required
because of self-governing pressure. For example, the authorities of House of Lords
were decreased by the Parliament Act of 191111 and Parliament Act of 194912. The
reason was that unelected second chamber should not possess the right to block the
procedures of the elected government. By adopting the written constitution, the
magistrates will monitor the constitution. The magistrates are not elected and social
unrepresentative, which will lead to, self-ruled discrepancy because of no self-
governing legality. A written constitution will be specified in a manner that is not
subject to common responsibility. The codified constitution can also interpreted as
per the priority and values of senior magistrates13.
Furthermore, the other argument against a written constitution is that parliamentary
authority will be successfully abolished. The principle of parliamentary authority
specifies that the parliament may implement, unmake, and alter any law as per
choice. However, if there will be written constitution in United Kingdom, then the
parliament would not be able to implement, unmake and alter the law as per the wish
because of presence of constitution and possibly a bill or rights. The main reason is
10 Catherine Elliott, ‘English legal system’ (Pearson press 2011)
11 The Parliament Act 1911
12 The Parliament Act 1949
13 Neel Willson Barber, ‘Against a written constitution, public law’ (Sweet & Maxwell limited 2008)

ESSAY 7
that a written constitution will act as a system of higher law. The written constitution
will challenge any main principle in demonstrative democracy of the United
Kingdom14.
The other valid agreement against a written constitution is that it is not required. It is
believed by many people that an unwritten constitution of United Kingdom makes
sure the long history of the democracy. However, it cannot say that written
constitution is most effective method of decreasing the powers of government. The
another way of improving the checks and balances in the political system can be a
best process of stopping over-might government in place of introducing a written
constitution in United Kingdom.
The reasons for adopting a written constitution in United Kingdom
Seeing the above discussed agreements and disagreements in respect of
constitution in United Kingdom, there are some strong cases to support the both
opinions on whether United Kingdom is required a written constitution or not. Both
the cases for written constitution and unwritten constitution of the United Kingdom
was reasoned strongly. The benefits of written constitution are more clarity,
transparency, and certainty. The main benefit of unwritten constitution is flexibility.
The immoralities of each are not same of the relevant advantages. The opponents of
the written constitution point to the stipulative problem of altering the constitution.
The opponents of an unwritten constitution point to their weakness to altering the
interpretations from which there is no demand. The alterations impelled by the
suitability or partnership15.
14 Neil Parpworth, ‘Constitutional and administrative law’ (Oxford university press 2007)
15 Vernon Bogdanor, ‘The new British constitution’ (Bloomsbury publishing 2009)

ESSAY 8
The effects of these explanations are that the written constitutions compel
government in manners that uncodified constitutions do not. The government is
question to it, while with uncodified constitution it is constitution that is subject of
government system. It is possible for the government to amend the provisions of
constitution or explain it in the manner that suits itself. The written constitution is
significant safeguard against misuses by the government of their authorities, not
minimum because it will establish civil authorities or rights and due procedures of
legal system16.
In United Kingdom, the Human Rights Act establishes the authorities and rights of
citizens. The Human Rights Act does not provide the Supreme Court authority to
strike down law, rules, and regulations in United Kingdom. It confines the action of
government system that is at unusual with the Human Rights Act. This influence is
not so strong like effects of fully codified constitution.
It was argued that the written constitution would be inflexible. The reason is that it
will be more difficult in comparison of altering or abolishing statue law. In
consideration of benefits, the constitution not at whom of any present existing
management is as harsher carer of authorities and rights than a constitution flexible
to partisan and transferring the interest. Further, planning careful and consensual
means for altering the constitution when varying the conditions make a strong
incident for doing so cannot be beyond human imagination and skills. The rigidity of
the United States constitution is the consequence of handling it as if it were sacred
summons rather than a document fulfilling the requirements of the country17.
16 David Pollard, ‘constitutional and administrative law with text materials’ (Oxford university press
2007)
17 Colin Turpin and Adams Tomkins, ‘British government and the constitution’ (Cambridge university
press 2011)

ESSAY 9
The other argument is unwritten constitution permits self-governing demand to make
the constitutional provisions of the state rather than conferring the authority to
explain them in a supreme court. If the constitutional amendments require a
supermajority in the parliament or in a vote, the alterations will be truly self-
governing. It will evade the dangers specified by J.S. Mill as inherent in basic
majoritarianism18.
It was also argued that it there will be a written constitution in United Kingdom, then
parliamentary authority would be ended there. It will be not a good thing. The
parliament will not be independent. As an administrative is drawn from the majority in
parliament, the beating system of the party disciplines means the administrative is
assured to develop this manner19.
Conclusion
The United Kingdom has always rare democracies since it lacks a written
constitutional document. There are many scholars, who are in the favour of adoption
of introduction of the written constitution. They had made their views to support the
written constitution in United Kingdom. A written constitution can stop the violation of
human rights by state and secure the smaller groups from the pressure of majority.
Contradictorily, many scholars had made opinions against the point of introduction of
codified constitution. They had made an opinion that parliamentary authority will be
strongly abolished.
By considering all these points, it is concluded that the United Kingdom is required to
continue the constitutional architecture in the United Kingdom. The written
constitution will make serious block in coming period in spite of the point that it might
18 AdamsTomkins, ‘Our republication constitution’ (Hart publishing 2005)
19 AdamsTomkins, ’ Public Law’ (Oxford press 2010)

ESSAY 10
be proper and suitable at present day. The constitution of United Kingdom allows the
British citizens to take more positive beneficial atmosphere in comparison of other
nations having written constitution. The codification of constitution of United Kingdom
is not so easy. It is tough and challenging task since it creates from contracts,
treaties, statues, rules, regulations, and case laws in United Kingdom.
Bibliography
Primary Sources
Statutes and statutory instruments
The Devolution Act
The Human Right Act
Secondary Sources
Books
Allen, M, ‘constitutional and administrative law’ (Oxford University Press 2011)

ESSAY 11
Barber, NW, ‘Against a written constitution, public law’ (Sweet & Maxwell limited
2008)
Barber, NW, ‘Law and constitutional conventions’ (Sweet & Maxwell limited 2011)
Barnett, H, ‘Constitutional and administrative law’ (Routledge press 2011)
Beatson, J, ‘Reforming a written constitution’ (Routledge 2010)
Bogdanor, V, ‘The new British constitution’ (Bloomsbury publishing 2009)
Bradley, AW, ‘constitutional and administrative law’ (Pearson press 2011)
Elliott, C, ‘English legal system’ (Pearson press 2011)
King, A, ‘The British Constitution’ (Oxford University Press 2007)
Parpworth, N, ‘Constitutional and administrative law’ (Oxford university press 2007)
Pollard, D, ‘constitutional and administrative law with text materials’ (Oxford
university press 2007)
Tomkins, A, ‘Our republication constitution’ (Hart publishing 2005)
Tomkins, A,’ Public Law’ (Oxford press 2010)
Turpin, C, and Tomkins, A, ‘British government and the constitution’ (Cambridge
university press 2011)
Websites and Blogs
Anthony Barnett, ‘the lure of greatness: England’s Brexit and America’s Trump’
(2017) <https://www.theguardian.com/commentisfree/2016/nov/30/why-britain-
needs-written-constitution> accessed on 25 July 2018