The Case for a Written Constitution



A constitution is, in short, ‘a set of laws, rules and practices that create the basic institutions of the state…and stipulate the powers of those institutions’ according to the House of Lords (HL 11 [20]). The status quo is that the constitution of the United Kingdom (UK) remains successfully unwritten, as it has been for decades. This essay argues the several benefits of the status quo as analysed by Albert Venn Dicey and J.A.G. Griffiths. However, the UK is the only European jurisdiction without a written constitution or basic law. Hence, this essay also considers arguments for reform or the writing of the British Constitution. This essay then seeks to explore the marrying of both the status quo and reform with reference to King’s case for democratic renewal, which is arguably the best solution to the current confusion and division as to the British constitution.


The successful unwritten constitution


The widely known benefit of the status quo is that the UK constitution is unbroken. This approach does not ignore flaws in the constitution itself but addresses the lack of necessity

such as a ‘constitutional moment’ – for example, a revolution – which would require significant and immediate change as with the French and American Constitutions. Instead, the UK constitution evolves over time, allowing swift and easier amendments. Therefore there is no requirement of the clarification of rules or laws. Thomas Bertram Lance’s quote “if it ain’t broke, don’t fix it” (Lance, 1977) implies that there is simply no need for solving a problem which ceases to exist. This supports the view that the UK’s constitution is the situation of harmony regarding how constitutional principles are fundamental and should not be altered which could easily occur in the writing of the constitution. Proponents of reform may suggest a written constitution would give Britons access to clear individual rights and liberties. However, written constitutions such as the American Constitution has lead to unsuccessful attempts to change gun laws in the USA. In contrast, the UK responded easily and swiftly after the Dunblane massacre in 1996 which was aided by a flexible unwritten constitution. Therefore the UK constitution works well as it is and should not be altered.


According to Dicey (Dicey, 1982), the “British constitution rests on the common law” which, based on legal cases, reflects the rights and liberties of individuals and embraces the rule of law and parliamentary sovereignty as constitutional principles. Britons can rely on internal values or “innate rights” (Dicey, 1982) which count more than ‘paper rights’ that form a Constitution. Opponents of this view such as King’s rights-based case may argue that reform is needed for the protection and safe-guarding of rights. However, there is no evidence to demonstrate that a charter will make a difference. The Human Rights Act 1998 (HRA) is mainly responsible for the protection of rights and it remains part of the UK constitution since it is a statute. The writing of the British constitution may alter these carefully thought out rights by Lord Irvine and could alter the minimum substantive content in the law, especially with the potential of the current right wing government to encourage racist views against immigrants and asylum seekers. Considering the case of Anufreija whereby it was held as unlawful to withdraw income support from an asylum seeker before they had been notified of the decision. This was essential for the complainant to be able to challenge it in the courts if they wished. In this case, the right of access to justice was applied as a fundamental constitutional principle. Thus, the UK constitution is in no urgent need of reform, also because constitutional principles evolve easily without restraints from a rigid, unchangeable written constitution. The current constitution protects individual rights and liberties through the HRA.


The urgent need for reform


In contrast, Brexit has shown that the UK’s constitution is in need of reform. Blick argues that the unwritten UK constitution has “both allowed Brexit to come about, and has failed to facilitate a satisfactory response to it” (Blick, 2019). The case of R. (on application of Miller) v Secretary of State for Exiting the European [2017] shows the abuse of power by the government by the Prime Minister Boris Johnson advising Her Majesty the Queen to prorogue parliament. This was unconstitutional and went against constitutional principles; it was made possible by a lack of political boundaries for the government to obey. A written constitution would be politically progressive in that both legal and political boundaries would be upheld. Therefore, Brexit shows that there are flaws in the British constitution which need reform; Brexit, although not a constitutional moment, is a perfect opportunity to begin the writing process of the British Constitution, considering the political and national uncertainty.


It has been hypothesised by King’s case for democratic renewal that it is possible to write the UK’s constitution in response to cultural or social change such as same-sex marriages being recognised and introduced via The Marriage (Same Sex Couples) Act 2013. ‘Democratic renewal’ would allow the retention of the benefits of the status quo such as involving both the general public and parliament, allowing fuller representation of the UK. Not only would the Constitution have benefits of being clear and transparent, encouraging political accountability, the renewal process would also enable flexibility that the current uncodified constitution possesses in order to respond to the social change. The document would give Britons a sense of identity and a clearer understanding of constitutional principles such as parliamentary sovereignty. Therefore, the clarity-based case provides the best solution for both proponents and opponents of a written constitution.


In summation, the UK constitution is arguably unbroken and so does not require reform. Dicey’s view states that the constitution rests on the common law which sets out the rights of Britons which may be altered with a written constitution. However, Brexit has erupted a multitude of issues to which reform would solve. King’s clarity-based case provides a much needed solution as to the current unwritten constitution. The UK constitution is the heart of what it means to be British but is nevertheless in need of alteration, for I, among others have written a convincing and lucid case for the reform of the UK constitution to a written one. The question that remains is: who will write it and how will the future of the UK be implicated?