Introduction
A constitution can be described as a set of rules and practices that determine how
power is divided within a state. There are two different types: a codified (written) and
an uncodified (unwritten) one. The United Kingdom is one of three nations without a
written constitution, including New Zealand and Israel. A codified constitution can be
described as a written set of rules governing the power of the state and the
relationship between the state and the individual, contained in a single document.
John Alders comment refers to conventions, suggesting they have the advantage of
legal rules, fundamental to the UK Constitution. I will argue that the claim has
constitution; conventions are flexible which aid the UKs legal system; how the
Human Rights Act 19982 substantiates the current Constitution. Producing a codified
constitution would be an enormous task, and would arguably undermine the existing
Sources are practical and facilitate strong governance. They are a constitutional
jigsaw that fit together in order for the operation of the Constitution. Constitutional
conventions are key to the uncodified constitution, in which it upholds the rule of law.
1 John Alder, Constitutional & Administrative Law (9th edn, Palgrave Macmillan 2013) p. 9 at 1.4.2
2 Human Rights Act 1998
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stability and certainty required for economic prevalence. Certain actions are
authorised by prerogative power and the convention provides the custom or rule,
Statutes may set out specific powers of the state or provide protection for citizens.
Thoburn v Sunderland City Council [2002] All ER (D) 223 (DC)3 illustrated the legal
This shows the judiciary upholds strong governance, influencing the uncodified
government had three main functions: making laws, executing public affairs, and that
of adjucating on crimes or individual cases. The judiciary are independent from the
Executive and Legislature, yet uphold Parliamentary sovereignty; the legal doctrine
that Parliament is the supreme body in the constitution5. Statute is legally flexible,
that Parliament can enact new statutes and change existing ones with a majority vote,
The Royal Prerogative is a special source, which have their origins in the powers
originally recognised by the monarch. A.V. Dicey defined this as the residue of
remaining portion of the Crowns original authority6. They are problematic for
3 Thoburn v Sunderland City Council [2002] All ER (D) 223 (DC)
4 Baron de Montesquieu, The Spirit of the Laws (1748)
5 Alder (n1) p. 152
6 A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885)
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empowered to appoint a Prime Minister; the monarch will always appoint the person
1986, regarding circumstances where an election does not produce a clear majority for
any party, would raise major constitutional questions7, although he resiled from that
principles that governs the operation of the legal system and the control of state
powers. Brazier felt the Queen should refrain from involvement in the decision-
making process, but did seem prepared to countenance the possibility that the
monarch may need to take action if no political solution could be found9. Reserving
suggested that the monarch may provide protection against an arbitrary government,
power and statutory power come into conflict, the statutory power will prevail,
7 Vernon Bogdanor, Electoral Systems in Local Government: Study Paper no. 4 (University of
Birmingham Inst. Of Local Government Studs. 1986)
8 Lucinder Maer, Hung parliaments (House of Commons, Parliament and Constitution Centre, 2010
9 Rodney Brazier, Constitutional Reform: Reshaping the British Political System (3rd edn, OUP 2008)
10 Dicey (n5)
11 Attorney General v De Keysers Royal Hotel Ltd [1920] AC 508 (HL
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judiciary appears entrenched12. The court recognised it had the power to review at
least some of the prerogative powers exercised by the Crown, which had previously
prerogative exercise as the courts are willing to review a broad range of matters.
interference.
the various organs of the state and can therefore be said to be considerable
practices which are not enforceable by the courts. Loveland suggests the function of
considered to be a convention that forms part of the constitution. Jennings argued that
concerned, and reason for the rule15. It is clear that a constitutional convention
nature shows they are flexible and may change over time, which show they are
12 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
13 Robert Blackburn, & Vernon Bogdanor, Mapping the Path to Codifying or not Codifying the
UKs Constitution (Centre for Political & Constitutional Studies, Kings College London) 2012
14 Ian Loveland, Constitutional Law, Administrative Law, and Human Rights: A critical introduction
(6th edn, OUP 2012)
15 Sir Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1964)
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their personal views. One example illustrates this, as the resignation of Robin Cook
who was unable to support the Iraq war16. Individual responsibility holds a minister
accountable for conduct whilst in office, but the requirements of the rule have shifted
over time. It no longer appears to be the case that personal scandal will inevitably
flexibility. The Crichel Down affair18, which involved serious civil service
legally binding within a codified document because this would inhibit flexibility and
yet flexibly drafted, the courts would become the ultimate arbiters of breaches.
conventions, that a legal sanction for breach of codified conventions would result in
the courts being forced to take a political stand and jeopardise judicial
and diminish the standing of the courts if they lacked jurisdiction to determine
16 Robin Cook, The Point of Departure (1st edn, Simon & Schuster Ltd 2003)
17 Joseph Jaconelli, Do constitutional conventions bind? (The Cambridge Law Journal, 2005)
http://journals.cambridge.org/action/displayAbstract?
fromPage=online&aid=292372&fileId=S0008197305006823 accessed 09 November 2014)
18 Roger Gibbard, Whose land was it anyway? The Crichel Down Rules and the sale of public land?
(University of Reading, 2014) http://www.reading.ac.uk/LM/LM/fulltxt/0102.pdf accessed 09
November 2014
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principles. To have constitutional courts within the judiciary would diminish that very
of powers, and show that the Constitution is written in a scattered approach, insofar
that the operation of the state depends in large part on tradition and practice, and the
The term substantial can be defined by the UKs ability to be encapsulated by public
health service, the education system, transport, and the economy21. It is proposed
that this term should be incorporated with flexibility, whether the UK is ultimately
The continuing existence of prerogative powers is the cause of concern for those who
would prefer to see all state power accountable to Parliament. There have been
attempts to table legislation to bring powers under the control of Parliament but the
government fails to support such measures. They prefer to retain powers without
interference from Parliament. However, the inherent flexibility within the UKs
current legal system reinforces democracy and facilitates change. When looking at
the passage of a Bill before it becomes an Act of Parliament, the stages are built upon
a democratic principle that it involves all organs of the powers. The UK should
political and legal system. Both houses of the legislature are directly elected. The
there was political gridlock within the USAs separation of powers, portraying that
irrational that the majority party cannot control the branches of power, without
preventing public democratic principles such as the right to free speech. Legally this
cannot work, for the Opposition party to complicate the legislative process, as well as
keep effective checks and balances upon each other. The President of the USA cannot
an ideal constitution as a logical scheme of thought. This would protect the individual
from government abuse, and provide a clear protection of individual rights. As the UK
is not constrained by a written constitution, it can change the law and remove our
individual rights. Lord Hutton recognised the political legitimacy of the judiciary23
22 Jon Sopel, Obama and Republicans playing nicely for now (BBC News, 6 November 2014)
http://www.bbc.co.uk/news/world-us-canada-29945566 accessed 09 November 2014
23 Cullen v Chief Constable of the RUC [2004] All ER 237, 46
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In doing so, Lord Hutton arguably alludes to the Human Rights Act 1998
(HRA)25. The Act has infused wide political debate. The Conservative Party stated
they seek to abolish the Act and replace it with a British Bill of Rights26, in an attempt
to codify the Constitution. The HRA aimed to ensure that Convention rights are
incorporated into domestic law and accordingly are enforceable in domestic courts. It
also granted new discretionary powers to the judiciary when considering statute. Lord
Huttons individual rights argument can be criticised, on the grounds that this
weakens the UKs Constitution, diminishing the separation of powers doctrine that
strengthened the constitutional position of the judiciary, and weakened the position of
Lord Hailsham that there is the potential for an elective dictatorship if a party of
One cannot ignore that the 1998 Act is of major constitutional importance. It
strengthens the ability of ordinary citizens to challenge the actions of the various
Perhaps this suits a written constitution for the purposes of the Executives location
and dominance in and of Parliament, which suggests that it undermines the traditional
Exeutives power, and would act as a brake on their power to administer policy. The
Act itself imposes a constitutional obligation upon the state to negatively raise human
rights, insofar that it managed to invest the judiciary with the power to make a
sovereignty.
Conclusion
appears correct that our Constitution is flexible, involving political conventions and
be developed. Codifying our Constitution would politicise the judiciary, requiring the
Bibliography
Statutes
Case Law
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
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Secondary Sources
Alder J, Constitutional & Administrative Law (9th edn, Palgrave Macmillan 2013)
p. 9 at 1.4.2
Alder (n1)
Blackburn, R. & Bogdanor, V Mapping the Path to Codifying or not Codifying the
UKs Constitution (Centre for Political & Constitutional Studies, Kings College
London) 2012
Dicey A.V. Introduction to the Study of the Law of the Constitution (1885)
Lucinda M & Alexander H, Background to proposals for a British Bill of Rights and
Duties [2009], 5
Jennings I, The Law and the Constitution (5th edn, University of London Press 1964)
Websites
ibid
Gibbard R, Whose land was it anyway? The Crichel Down Rules and the sale of
public land? (University of Reading, 2014)
http://www.reading.ac.uk/LM/LM/fulltxt/0102.pdf accessed 09 November 2014
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Sopel J, Obama and Republicans playing nicely for now (BBC News, 6 November
2014) http://www.bbc.co.uk/news/world-us-canada-29945566 accessed 09 November
2014