A Codified Constitution: An Essential Task, or an Unnecessary Undertaking?

Introduction.

Should the constitution be codified? This contentious issue is greatly debated within legal and political circles as a possible aid to or detractor from the current constitutional model of the United Kingdom. This article will explore what the constitution currently looks like, what codification may look like, and the benefits or detriments that codification may cause. This article is split into five main sections, including an explanation of the core topic areas, an exploration into the cost of parliamentary time that such a task as codification would take, an analysis of who would, or could be qualified to write such a document, an assessment of the clarity that such a document could provide, and finally a look into how a codified constitution could fundamentally change the relationship between Parliament and the judiciary. This article finds that a codified constitution is not fit for the existing constitutional model of the UK, and that an attempt to enforce one would be a waste of Parliamentary time, which is very limited. Therefore, this article is against the notion of a codified constitution, however, it does concede that there are some appealing aspects of a codified constitution including clarity for the public and that it makes the powers of government clear. This does not however outweigh the negatives that could result from the codification of the constitution, such as a complete constitutional overhaul of the role of Parliament and the courts. The Political and Constitution Reform Committee’s report[1] into this matter gives an exceptional look into the codification of the UK’s constitution from an impartial perspective and will be explored thoroughly in this article.

What is the constitution and what would it mean to codify it?

The constitution is the framework of the legal system of the UK. The laws that comprise the constitution create the legal basis for every aspect of the law and governance of the UK. These laws span a wide breadth of the country’s history, including the Magna Carta (1215)[2] and the establishment of Common Law (c.1166) under Henry II[3], to the House of Lords Act 2026[4] and the Retained EU Law (Revocation and Reform) Act 2023[5]. The constitution has evolved throughout the span of England and later the UK’s life, moving from absolute monarchy to a parliamentary system with the Bill of Rights (1688)[6], the Acts of Union (1707)[7] creating one nation from the divided England and Scotland, and the Human Rights Act (1998)[8] which embedded human rights into the UK’s constitution. This evolution allows the UK’s constitution to be fluid and flexible so that it may change should the law become outdated but also means that the historic laws that have built the UK’s system can remain a part of the law, keeping the vital history and tradition, but in a somewhat updated form. This can be seen clearly in Magna Carta[9], as now only four of its sixty-three clauses are still implemented within the law today, including clauses one, thirteen, thirty-nine and forty. Clauses one and thirteen grant liberties to the Church of England and City of London respectively to remain independent institutions. Clauses thirty-nine and forty explore the principle of habeas corpus, which later culminated in works and laws on the issue, cementing the rule of law and the right to freedom from imprisonment without cause. Sir Edward Coke, in his roles as Solicitor and Attorney General, and Member of Parliament, made many extraordinary contributions to the constitution, but especially the principle of habeas corpus, through the Institutes on the Lawes of England, in which he focuses on aspects of the Magna Carta and analyses habeas corpus. He goes further in his petition of right to Parliament, arguing “And where also by the statute called the Great Charter of the Liberties of England, it is declared and enacted that no free man may be taken or imprisoned, or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land”[10], greatly enforcing the work he had done previously to ensure habeas corpus be upheld throughout the country, such as with the Habeas Corpus Act[11]. To codify the constitution would be a gargantuan task, as a group of people would have to research every constitutional statute and convention in history, decide which of these should be enshrined in a single constitutional document and then gain Parliament’s approval over the bill, which may be amended whilst in Parliament, furthering the task. The breadth and depth of the constitution is shown with documents such as Magna Carta and Erskine May, with sixty-three clauses and forty-nine chapters respectively. The in-depth study of these documents, with the aforementioned examples showing approximate length, would be an enormous task. Therefore, it must be questioned whether codification is necessary or practical to complete, which will be explored in this article.

Is the codification of the constitution necessary to the continuation of the constitutional framework of the UK?

Is the codification of the constitution a necessary endeavour? This question is at the heart of this article and is crucial to answering whether the constitution should be codified or not. Many argue that the codification of the constitution is unnecessary as the constitution in its current form has lasted for centuries. One case for this looks at the “soft law”[12] of constitutional conventions, and how these ‘declared conventions’ can influence behaviour, as opposed to binding it in legality which would result from a codified constitution. One example of a declared convention is Erskine May, which is the premier source regarding conventions of Parliament[13]. The current Erskine May is in its twenty-fifth edition, with updates to its procedure as needed. This is a clear example of the benefits of a non-codified system. With a codified system, the conventions declared in Erskine May, would have to become legally binding, rather than purely convention. It would also mean that an amendment to a parliamentary convention would require amending the whole codified constitution, rather than only updating Erskine May. Generally, a binding set of rules would lead to a loss of the flexibility of the conventions of the constitution[14], meaning that any time a constitutional convention needed to be changed it would have to pass by a two thirds majority in both Houses of Parliament, rather than merely updating the convention. One such convention is Prime Minister’s Questions (PMQs). The practice began with Gladstone in 1881[15], with a specialised time for the Prime Minister to answer questions from the house, as opposed to the time reserved for all ministers to answer questions from Parliament. It took its modern form in 1953 under Churchill, who introduced two fifteen-minute sessions per week, and finally changed under Blair to be a half-an-hour session on Wednesday every week[16]. These changes would not have been so easily made if there was a codified constitution, as there would be no ‘soft law’ to change conventions, rather a vote in Parliament would have to be held, wasting parliamentary time over a simple constitutional convention. It also must be questioned whether the constitution would be aided by bringing together all of its aspects into one document. This is due to the fact that “The constitution, as a single set of rules, is very hard to pin down.” And that concern lies “with the substance and function of constitutional rules: what they require and what they do”[17]. This therefore questions whether bringing together constitutional principles will actually aid the constitutional model, or will it confuse already complex issues further?

If codification were to take place, who would be responsible for writing it, and how long would such a process take?

The codification of the UK’s constitution would be a colossal undertaking, requiring great expertise and understanding from its authors, as well as impartiality and a lack of politicisation of constitutional issues. These requirements may make the codification of the constitution impossible to complete, as it is said “Usually, a writer on the British Constitution selects what seems to him to be important.”[18], showing a clear bias from any author. This may also result in politicisation of the constitutional issues if it is created within parliament, or when it is approved in parliament, which it must be to become law. The legislative process in Parliament is a long and arduous one. For a bill to become law, it must go through stages including a green paper, a white paper, the first reading, the second reading, the committee stage, the report stage, the third reading, a repeat of these stages in the opposite house to which it began, and finally it must receive royal ascent for the bill, which usually occurs two months after the bill passing through Parliament. Should amendments be created at the committee stage in the Lords, it requires approval from the Commons to continue, often leading to a process called ping ponging, meaning bills go back and forth from the two Houses, as they are unable to reach a consensus[19]. This means that many bills are introduced at the beginning of a parliamentary session and only receive royal ascent at the end of that parliamentary session. If a bill is not included in the manifesto of the governing party and is does not receive ascent before the end of the parliamentary session, then it must begin all over again at the start of the next parliamentary session, again adding time to the process. For particularly complex bills, the amount of parliamentary time spent can be staggering. For example, the Hunting Act 2004[20], which took an approximate seven hundred hours of parliamentary time, including government inquiries, parliamentary hearings and the time spent to pass the bill itself[21]. This is due to a number of factors, including its controversy, and pushback from the House of Lords. However, this can be expected for any bill containing the codification of the constitution, which in addition to its controversy and expected pushback from opposition parties, it would be one of the most complex bills in parliamentary history, dealing with nearly a thousand years of historical documents and conventions, aiming to bring them all together into one document that is agreed upon by the majority of experts and parliamentarians. Therefore, it can be estimated that the passing of such a bill would take much more than just one parliamentary session, requiring the passing of a codified constitution to be in the manifesto of the party in government. Even if this were the case, it cannot be guaranteed that the bill would even pass in the full parliamentary term due to its scale, which could require re-election, which could not happen purely on the basis of promising a codified constitution. It must also be asked who would write such a document, as the writers would have to be experts in the constitution, as well as impartial, so that it may appeal to all aspects of society. It may be argued that Parliament should codify the constitution, as they are elected officials with some constitutional expertise, as found in the Constitution Committee in the Lords and The Political and Constitution Reform Committee in the Commons[22]. However, if parliamentary time is already scarce as has been proven previously, then to require more time from parliamentarians would be impossible. Another possibility are outside experts, however, an issue that may arise from this is that they are unelected and cannot be held accountable to the general public, meaning that the constitution may be reformed without the knowledge or consent of the public, against the benefits of the public. If it cannot be agreed upon who would be a suitable group of people to create a codified constitution, then a codified constitution which may possibly pass through Parliament, with the consent of experts and the people cannot occur.

Could codification create clarity around the complex issues in the constitution, allowing the general public to be more aware of the law?

The constitution is said to have a “large number of dispersed sources of constitutional understanding”[23], leading to confusion by the greater public of where to look for guidance on complex areas within the constitution. If these matters could be clarified through codification, it may lead to the public getting more involved in legal and political affairs, due to greater understanding and ability to participate, creating more interest in such things as elections, resulting in higher turnouts, creating a more representative and democratic society. The argument for a codified constitution may also be made by arguing that the constitution has ‘disintegrated’ due to ‘reckless abuse of constitutional norms and conventions’[24], resulting in such cases as Jackson[25], Miller[26], and Miller II[27]. These cases all dealt with constitutional issues resulting from a lack of transparency over such constitutional matters by the government, or a breach of governmental powers. Jackson looks at the legitimacy of the Hunting Act 2004[28], as it utilised the Parliament Acts of 1911[29] and 1949[30] This is emphasised by the Rawnsley’s assertion that the constitution in its non-codified is ‘heavily reliant on politicians acting with honour and playing fair’[31]. If these cases can attest that ‘honour’ in government has been lost, then the case could be made that the constitution is no longer fit for purpose in its current form. However, this line of reasoning is combatted within the case of Miller II itself, with Lady Hale and Lord Reed’s argument that “Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development” and that “The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.”[32], showing that the Supreme Court is arguing against a codification of the constitution merely on the basis of political turmoil, as the non-codified nature of the constitution permits it to be flexible, allowing laws to be created and enforced to end national and political strife.

Would the codification of the constitution result in a fundamental change in the relationship between Parliament and the Judiciary, overhauling the constitutional model we have today?

Lord Hailsham argued that ‘only revolution, bloody or peacefully, can put an end to the existing settlement’[33]. As revolution has not occurred in this country for centuries since the Glorius Revolution of 1688, according to Lord Hailsham, the status quo constitution will not change. However, it must be asked what changes would be made to the constitution if it was rewritten in the form of a constitutional codification. Most pressingly, the relationship between Parliament and the judiciary must change with a codified constitution, as the current constitutional pillar of parliamentary sovereignty could not be used to the full effect it is now, due to a ‘higher law’ in the form a codified constitution, and the judiciary would be expected to uphold this higher law, possibly with a separate constitutional court as in many EU countries. This would fundamentally change the constitution, as the balance of the twin pillars of state, parliamentary sovereignty and the rule of law would be eroded to such a point where the unelected officials of the judiciary have the opportunity to overrule the elected officials in Parliament. This is an overhaul of the constitution that cannot be allowed to happen under our current system, as Parliament has ruled with sovereignty has since the Bill of Rights, and is a system which protects the rights of the people by ensuring that the officials they elect remain superior to any other individual or organisation. It may also be argued that a codified constitution would detract from our current system of the Crown in Parliament[34], destroying centuries old traditions and customs, such as prorogation and state openings of Parliament, as there would be a central legal document to look to rather than the Monarch as the central figurehead of politics, both home, and crucially abroad, which may also affect international relations. Another fundamental constitutional change that would occur due to the codification of the constitution is the removal of the flexible system that Parliament currently enjoys. It is estimated that with a codified constitution that changes to such a document would require two thirds of Parliament to agree to a bill. This is highly unlikely to occur as cross-party unifying issues are extremely rare. Therefore, it could leave the constitution entrenched in its rules leaving it to ‘fossilise’ or become ‘frozen in time’, akin to Hart’s objections to morality in the law[35]. This would also leave our elected politicians possibly unable to enact the public’s will, due to politicisation of a constitutional issue which would mean that the public’s resolution through elections could not be acted upon unless there was a governing party with a supermajority in parliament with over two thirds of the seats.

Conclusion

In conclusion, although there may be some advantages to a codified constitution, the overwhelming evidence found by this article shows that the codification of the UK’s constitution would not be beneficial when weighing the advantages and disadvantages. The great length of time it would take, combined with the issues surrounding which individuals would be responsible for creating this new codified constitution, whilst remaining impartial and leaving aside any politics aspiration or bias makes the issue of codification nearly impossible to complete. This in conjunction with the fact that codification is unnecessary and impractical, alongside the unconvincing nature of the argument that a codified constitution would clarify the law for the general public, means that this article finds that when asked if codification is an essential task or unnecessary undertaking, it categorically answers with the latter.

Bibliography

Primary Sources (Cases and Legislation)

• Bill of Rights (1688)
• Habeas Corpus Act (1679)
• HC Deb 21 May 1997, Vol. 316, Cols. 702-709
• House of Lords (Hereditary Peers) Act 2026
• Human Rights Act 1998
• Hunting Act 2004
• Magna Carta (1215)
• Parliament Act 1911
• Parliament Act 1949
• Retained EU Law (Revocation and Reform) Act 2023
• R (on the application of Jackson) v A-G[2005] UKHL 56
• R (on the application of Miller and another) v Secretary of State for Exiting the European Union, [2017] 1 All ER 593
• R (on the application of Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland[2019] UKSC 41
• The Acts of Union (1707)

Secondary Sources

• Baron J. M., Henningfield D. A., ‘Common-Law Tradition Emerges in England’, EBSCO, 2022, <https://www.ebsco.com/research-starters/history/common-law-tradition-emerges-england>, accessed 19/06/2026
• Bonner T., ‘20 Years of the Petty and Prejudiced Hunting Act’, (The Countryside Alliance, 14/11/2024), <https://www.countryside-alliance.org/features/tim-bonner-20-years-of-the-petty-and-prejudiced-hunting-act>, accessed 20/06/2026
• Bulmer E., ‘The English Constitution: Refoundation, Restoration, and Reform’, (Manchester University Press, 2025) pg. 18 – 41
• Cabinet Office, ‘Legislative Process: Taking a Bill Through Parliament’, (Feb 2013) <https://www.gov.uk/guidance/legislative-process-taking-a-bill-through-parliament>, accessed 21/06/2026
• Feldman D., ‘None, One or Several? Perspectives on the UK’s Constitution(s)’, The Cambridge Law Journal, 64, No. 2, (2005), pg. 331
• Filozoficzne R., ‘H. L. A. Hart On Legal Moralism and Social Morality’, Faces of Law, Freedom, 72, No. 3, (2024), pg. 239 – 258
• Institute for Government, ‘Review of the UK Constitution’, (September 2023), <https://www.instituteforgovernment.org.uk/sites/default/files/2024-06/review-uk-constitution-final-report.pdf>, accessed 19/06/2026
• Jennings, Sir I., ‘The Law and the Constitution’, (5^th Edition, University of London Press, 1959), pg. 37
• McHarg A., ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’, The Modern Law Review, 71, No. 6, (2008), pg. 853 – 877
• Online Library of Liberty, ‘Selected Writings of Sir Edward Coke Vol. III’, (2003) <https://oll.libertyfund.org/quotes/sir-edward-coke-defends-british-liberties-and-the-idea-of-habeas-corpus-in-the-petition-of-right-before-parliament-1628>, accessed 20/06/2026
• Rawnsley A., ‘Mr Johnson’s plot to subvert democracy is more dangerous than Brexit itself’, The Guardian, (London, 11 August 2019)
• The Churchill Archives Centre, ‘The 5th Richard Dimbleby Lecture given by Lord Hailsham, 9 October 1976’, (Cambridge University Press, 1976), <https://archivesearch.lib.cam.ac.uk/repositories/9/archival_objects/443858>, accessed 20/06/2026
• The Constitution Society, ‘The UK Constitution’, (2026), < https://consoc.org.uk/the-constitution-explained/the-uk-constitution/#what-are-the-advantages-of-having-an-uncodified-constitution>, accessed 19/06/2026
• The Political and Constitutional Reform Committee, A New Magna Carta?, (HC 463), para. 1-16
• UK Parliament, ‘Erskine May’, (2019) < https://erskinemay.parliament.uk/>, accessed 20/06/2026
• UK Parliament, ‘50 years of Prime Minister’s Questions’, (10/2026), <https://www.parliament.uk/business/news/news-by-year/2011/october1/50-years-of-pmqs/>, accessed 19/06/2026
• UK Parliament, ‘The Contents of Magna Carta’, (2015), <https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/magnacartaclauses/> accessed 18/06/2026

[1] The Political and Constitutional Reform Committee, A New Magna Carta?, (HC 463), para. 1-16

[2] Magna Carta (1215)

[3] J. Martin Baron, Diane Andrews Henningfield, ‘Common-Law Tradition Emerges in England’, EBSCO, 2022, < https://www.ebsco.com/research-starters/history/common-law-tradition-emerges-england>, accessed 19/06/2026 

[4] House of Lords (Hereditary Peers) Act 2026

[5] Retained EU Law (Revocation and Reform) Act 2023

[6] Bill of Rights (1688)

[7] The Acts of Union (1707)

[8] Human Rights Act (1998)

[9] UK Parliament, ‘The Contents of Magna Carta’, (2015), <https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/magnacartaclauses/> accessed 18/06/2026

[10] Online Library of Liberty, ‘Selected Writings of Sir Edward Coke Vol. III’, (2003) <https://oll.libertyfund.org/quotes/sir-edward-coke-defends-british-liberties-and-the-idea-of-habeas-corpus-in-the-petition-of-right-before-parliament-1628>, accessed 20/06/2026

[11] Habeas Corpus Act (1679)

[12] Aileen McHarg, ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’, The Modern Law Review, Vol. 71, No. 6, (2008), pg. 853 – 877

[13] UK Parliament, ‘Erskine May’, (2019) < https://erskinemay.parliament.uk/>, accessed 20/06/2026 

[14] The Constitution Society, ‘The UK Constitution’, (2026), < https://consoc.org.uk/the-constitution-explained/the-uk-constitution/#what-are-the-advantages-of-having-an-uncodified-constitution>, accessed 19/06/2026 

[15] UK Parliament, ‘50 years of Prime Minister’s Questions’, (10/2026), <https://www.parliament.uk/business/news/news-by-year/2011/october1/50-years-of-pmqs/>, accessed 19/06/2026

[16] HC Deb 21 May 1997, Vol. 316, Cols. 702-709

[17] David Feldman, ‘None, One or Several? Perspectives on the UK’s Constitution(s)’, The Cambridge Law Journal, Vol. 64, No. 2, (2005), pg. 331

[18] Sir Ivor Jennings, ‘The Law and the Constitution’, (5^th Edition, University of London Press, 1959), pg. 37

[19] Cabinet Office, ‘Legislative Process: Taking a Bill Through Parliament’, (Feb 2013) <https://www.gov.uk/guidance/legislative-process-taking-a-bill-through-parliament>, accessed 21/06/2026

[20] Hunting Act 2004

[21] Tim Bonner, ‘20 Years of the Petty and Prejudiced Hunting Act’, (The Countryside Alliance, 14/11/2024), <https://www.countryside-alliance.org/features/tim-bonner-20-years-of-the-petty-and-prejudiced-hunting-act>, accessed 20/06/2026

[22] A New Magna Carta? (n1)

[23] Institute for Government, ‘Review of the UK Constitution’, (September 2023), <https://www.instituteforgovernment.org.uk/sites/default/files/2024-06/review-uk-constitution-final-report.pdf>, accessed 19/06/2026

[24] Elliot Bulmer, ‘The English Constitution: Refoundation, Restoration, and Reform’, (Manchester University Press, 2025) pg. 18 – 41

[25] R (on the application of Jackson) v A-G [2005] UKHL 56

[26] R (on the application of Miller and another) v Secretary of State for Exiting the European Union, [2017] 1 All ER 593

[27] R (on the application of Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41

[28] Hunting Act (n20)

[29] Parliament Act 1911

[30] Parliament Act 1949

[31] Andrew Rawnsley, ‘Mr Johnson’s plot to subvert democracy is more dangerous than Brexit itself’, The Guardian, (London, 11 August 2019)

[32] n9 R (on the Application of Miller)

[33] The Churchill Archives Centre, ‘The 5th Richard Dimbleby Lecture given by Lord Hailsham, 9 October 1976’, (Cambridge University Press, 1976), <https://archivesearch.lib.cam.ac.uk/repositories/9/archival_objects/443858>, accessed 20/06/2026 

[34] A New Magna Carta? (n1)

[35] Roczniki Filozoficzne, ‘H. L. A. Hart On Legal Moralism and Social Morality’, Faces of Law, Freedom, Vol. 72, No. 3, (2024), pg. 239 – 258