In Defence of the Unwritten: The United Kingdom and its Uncodified Constitution

The United Kingdom of Great Britain and Northern Ireland (UK) is one of the very few democracies that lack a single written constitution.¹ The argument of whether the UK should adopt a written constitution continues to be a staple of British debate,² with consideration to the distinctive way the UK constitution operates. Significant political developments, such as Brexit,³ has placed immense, undeniable pressure on legal and political structures, further highlighting the current uncodified constitution’s limitations and emphasising the country’s need for a written constitution.⁴Is it time to finally adapt to modernity and codify the UK constitution? Through the critical analysis of valid arguments, such as clarity and practicality, human rights, public consensus, and checks and balances on governmental powers, this essay will argue that the UK should uphold their uncodified constitution, with respect to British tradition, case law, and efficacy of the current uncodified UK constitution.

A constitution is as the set of legal structures and shared values within the operation of everyday politics and governance.⁵ However, constitutions may also be the definite result of a series of diverse legislative enactments, judicial decisions, precedents and customs.⁶ Unlike most modern democracies, the UK remains one of the very few countries without a single, written constitution, which lies within the development of common law, statutes, and practices over the course of history.⁷ Following the symbolic 800 year anniversary⁸ of the Magna Carta,⁹the support on the codification of the UK constitution has been significantly heightened.¹⁰In the UK, any constitutional precepts may not be applied directly as legislation, unless the court deems it as the ‘right answer.’¹¹Indeed, the UK constitution is considered to be the most flexible polity in existence,¹² which heavily contributes to the ongoing debate on codification. Additionally, the instant implications of EU referendum¹³in 2016 have had commentators spelling out the virtues of a written constitution.¹⁴ 

Firstly, a codified UK constitution would give rise to the clear, formal framework of the rules that regulate the state. The idea of a codified UK constitution is certainly radical, but evidently conventional everywhere else in the world.¹⁵ For instance, New Zealand¹⁶ has an uncodified constitution¹⁷ but its codification is highly favoured.¹⁸ The UK’s uncodified constitution brings forth significant uncertainties in areas impossible to ignore.¹⁹In The Political Quarterly, students were asked to draft the constitution for the UK as it is. As a result, they quickly realised that the constitution consists of many areas of uncertainty. For instance, is there a constitutional obligation for a referendum before Westminster delegates legislative powers to a devolved body? Addressing such issues, a codified constitution would serve as a document of the fundamental law by which the UK is governed.²⁰ However, it is impossible to say whether the students’ answers to this and many other important questions accurately reflect the current state of the constitution, particularly because Britain’s constitutional position is actually unknown.²¹ Additionally. the absence of a codified constitution in the UK results in the lack of a legally enforceable pattern for constitutional change.²² This absence of entrenchment risks the reshaping of fundamental constitutional principles by political majorities, rather than a broad consensus or wider public legitimacy.²³ Given these points, it is abundantly clear that a written constitution would bring forth greater clarity in the existing arrangements of the UK’s uncodified constitution.²⁴ Perhaps the question ought to be why should Britain not have a codified constitution?

A codified UK constitution would require fundamental changes within the legal and political culture of the UK²⁵It is extremely unrealistic to expect that a single, written document will bring forth greater clarity, considering possible ambiguity,²⁶ and especially if it were to replace Acts of Parliament. As the highest source of law, Acts of Parliament have the right to violate certain fundamental rights or repeal constitutional statutes at will. Therefore, certain provisions may become outdated.²⁷ For instance, if a constitution was drawn up in 1830, statements about voting rights and the power of the House of Lords, would have become redundant after the Great Reform Act of 1832.²⁸ Furthermore, the principle of parliamentary sovereignty permits constitutional change without the procedural safeguards common in other democracies,²⁹ allowing for instant adaptation to economic, political, and social  developments in the UK. This would not be possible with the delays and limitations that come with rigid written constitutions. More importantly, the fundamental role of Parliament and its position as the supreme legal authority is brought into question if the constitution was to be codified. Would the codified constitution replace Acts of Parliament as the supreme legal authority? If so, what would be the role of Parliament? The arguments of codification for simplicity do not consider that it is an extremely conservative process³⁰ and is not as easy as ‘writing up what already exists.’³¹ Codification comes with the acceptance of some areas of uncertainty.³²If the objective of codification is to preserve existing constitutional choices, would the act of codification still be a pre-eminently political act? What would be its real significance?³³

As there is no formal written document that guarantees the fundamental rights for the people of the UK, a codified constitution would finally enshrine human rights. The European Convention on Human Rights (ECHR) is incorporated into domestic law,³⁴ but it does not sufficiently enshrine protections for human rights. For instance, in R v Secretary of State for the Home Department, ex parte Daly [2001],³⁵the House of Lords held that prisoners’ right to privacy under Article 8 of the ECHR³⁶ was violated due to the unlawful examination of legally privileged correspondence by prison officers. The Home Secretary’s policy highlighted the inadequate protection of human rights with legislation alone, particularly because the Human Rights Act (1998) (HRA) had not come into effect.³⁷ These cases, along with many others,³⁸illustrate that human rights enforcement under the UK constitution is certainly not satisfactory and requires enshrinement in a codified constitution. Despite its importance, the HRA (1998)³⁹is, at its core, simply ordinary legislation.⁴⁰ Ultimately, because Parliament is the supreme legal authority and can amend or repeal any law at will, fundamental human rights are not constitutionally safeguarded in the UK.⁴¹ This raises one of the most important issues in this debate: the people of the UK are not sufficiently protected if their human rights, including their right to life,⁴²freedom of expression,⁴³ and no punishment without law,⁴⁴ can be taken away at any time.

In practice, human rights in the UK are in fact adequately protected.⁴⁵ The HRA has significantly strengthened the enforcement of human rights in the UK through the incorporation of the ECHR into domestic law,⁴⁶ with case law demonstrating its effectiveness. In Ghaidan v Godin-Mendoza [2004], the House of Lords held that same-sex partners could acquire a statutory tenancy under the Rent Act (1977),⁴⁷ by interpreting the law in accordance with Article 14 and Article 8 of the ECHR.⁴⁸ Ghaidan illustrates that, under the HRA, the UK effectively protected individual rights by ensuring domestic law complies with the Convention without the need of a formally written constitution.⁴⁹ More importantly, the decision highlights the courts’ adaptability and interpretation of statutes to adhere to human rights as society evolve, which would be constraining and extremely difficult to accomplish if the UK constitution was codified.⁵⁰ Considering these points, it may be argued that the effectiveness of the UK’s current system in protecting human rights is, in fact, overlooked.⁵¹ It may be theoretically possible for the House of Parliament to be ‘able to take away human rights’ as rights are not enshrined, however, the incorporation of the ECHR into domestic law, along with common law practices, judicial interpretation and political constraints, make this entirely impossible.

Despite the UK’s traditional values, in the recent years, there has been steadily rising support and advocacy from British citizens for a codified UK constitution.⁵²In a study conducted in 2010, 44% of British respondents supported the idea of a written constitution, while only 39% of respondents did not.⁵³ This trend reflects the public’s growing awareness in the UK’s constitutional issues and highlights the limitations of the current uncodified constitution.⁵⁴ Additionally, 17% of British respondents were undecided on the codification of the constitution. Therefore, codification would enhance the public’s access to knowledge about governmental processes and institutional arrangements, a document accessible and understandable to the ordinary people,⁵⁵further encouraging and improving informed public discussions.⁵⁶ Additionally, a codified constitution will allow for greater public confidence in the UK system and greater consideration for proposals of constitutional change. A codified constitution will not simply be a ‘freeze frame’ document⁵⁷ but rather a document representative of the evolving frameworks of the state, its institutions, and arguably more importantly, its democracy.

The public deems a codified UK constitution unnecessary and, quite frankly, undesirable.⁵⁸ Considering the UK’s immense national pride, the codification of the UK constitution is viewed as extremely un-British.⁵⁹ Therefore, it is simply impossible to codify the UK constitution without firstly introducing significant change within the system, and change is evidently not wanted by the people.⁶⁰ As stated by Roger Scruton, custom will continue to prevail over reason as the final court of appeal.⁶¹ Secondly, the UK government has never been, and should never be, reduced to a single document that makes a poor attempt at signifying the country’s success and stability.⁶² To do so would be to ignore the depth of British history and would complicate matters in terms of governmental flexibility and responsiveness,⁶³ actions of which has continuously brought great success in the UK system. Furthermore, the constitution and its entities are extremely complex, and those making a case for a written constitution need to establish which particular aspects are fixed, flexible, or foreclosed.⁶⁴ This lengthy process would not only include the integration of centuries of statutes, conventions, and case law, but more importantly how the system would function along the House of Parliament. There is no necessity to illicit change in a system that has been working fine for the last few centuries. Ultimately, if the constitution were to be agreed upon and consequently codified, it would certainly not be ready for the public.⁶⁵It is evident that the political unity of such a people is incredibily strong, therefore, it certainly does not require the assistance of a constitutional document to reiterate it.⁶⁶

By clearly defining the powers and limitations of the governmental institutions through a codified constitution, people are governed in a way they accept, with legitimate exercises of power by the institutions of the government.⁶⁷ As stated by Lord Hailsham, the lack of codification brings forth the risk of an ‘elective dictatorship’ where the executive’s power goes unchecked, due to parliamentary dominance.⁶⁸In such circumstances, the lack of an accepted, effective method of checks and balances to detect abuse of power or misconduct, people will inevitably end up being treated in unjust, or simply unacceptable, ways.⁶⁹ Moreover, an effective constitution can only emerge when courts place effective limitations on governmental power.⁷⁰ This involves the elimination of ambiguity in structurally embedding the separation of powers (legislative, executive, and judiciary) in the constitution, as well as other formal checks to guard against an elective dictatorship and executive outreach.⁷¹ Finally, a codified constitution would grant courts the authority to review and, if necessary, invalidate legislation that may have breached constitutional norms, thereby enhancing institutional accountability.⁷² Such a framework would uphold the rule of law across all branches of government, reducing the risk of misconduct.⁷³ Without the explicit constraints outlined by checks and balances through a codified constitution, concentrated power (particularly in the hands of a dictatorial leader) may lead to complete and utter corruption.⁷⁴

The practical reality of the UK shows that institutional checks and balances are already effectively enforced without the need for a codified constitution. The perceived risk of executive overreach certainly does not necessitate codification and that although the practices within institutions of the government, judiciary, and Parliament are often overlooked, it does not undermine their significance.⁷⁵ For instance, in R (Miller) v Secretary of State for Exiting the European Union [2017], the Supreme Court held that the government could not trigger Article 50 without parliamentary approval.⁷⁶ Additionally, the House of Lords in the GCHQ case⁷⁷ established that prerogative powers are also subject to judicial review.⁷⁸ Other existing mechanisms include individual ministerial responsibility,⁷⁹ which was displayed in Bradshaw v Secretary of State for the Home Department [2006]⁸⁰ where the Home Secretary was challenged for their administrative short-comings. Codification as the reason for checks and balances is unnecessary, as case law clearly demonstrates the judiciary’s central role in upholding governmental limitations. Regardless, most of the UK’s constitution has been transcribed in statutory form, along with other uncodified rules and traditions in the Cabinet Manual.⁸¹Indeed, the only areas of the British Constitution that remain uncodified are areas of firmly established conventions.

In light of the above, it is beyond evident that UK would continue to benefit in upholding its uncodified constitution to preserve the doctrine of parliamentary supremacy, conventions, and the history and flexibility of the UK government. In a country filled with national pride, an idea as radical as a codified constitution is problematic, especially when the current UK system provides sufficient practicality, protections for human rights, public satisfaction, and efficient checks and balances. By maintaining the uncodified UK system, the country is avoiding the undeniable complexities that come with the unnecessary codification of the UK constitution.

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Bill of Rights 1689, 1 Will and Mar Sess 2 c 2

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A and Others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68

Bradshaw v Secretary of State for the Home Department [2006] EWHC 327 (Admin) Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) European Union (Withdrawal) Act 2018

Ghaidan v Godin-Mendoza [2004] UKHL 30

R (Jackson) v Attorney General [2005] 1 AC 262

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, [2019] AC 1022 [41]

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¹ Lydia Feast, ‘In Proportion: Analysing New Zealand’s Constitutional System’ (2020) 13 FormAkademisk 1 <https://doi.org/10.7577/formakademisk.3367>

² Jo Eric Khushal Murkens, ‘A Written Constitution: A Case Not Made.’ (2021) 41 Oxford J Legal Stud 965.

³ European Union (Withdrawal) Act 2018.

⁴ Richard Gordon KC, Repairing British Politics: A Blueprint for Constitutional Change (2nd edn, Hart Publishing 2010).

⁵ Peter Cane and H. Kumarasingham, Jonathan Sumption, The Cambridge History of the United Kingdom (2023) The TLS<https://www.the-tls.com/politics-by-region/british-politics/cambridge-constitutional-history-of-the-unite d-kingdom-book-review-jonathan-sumption> accessed 14 August 2025.

⁶ Carl Borgeaud, ‘The Origin and Development of Written Constitutions’ (1892) 7(4) Political Science Quarterly 613 <https://doi.org/10.2307/2139444>

⁷ House of Commons Library, The United Kingdom constitution – a mapping exercise (Research briefing CBP-9384, 25 July 2025)<https://commonslibrary.parliament.uk/research-briefings/cbp-9384/> accessed 8 August 2025.

⁸ Robert Blackburn, ‘Enacting a Written Constitution for the United Kingdom’ (2015) 36 Statute L Rev 1.

⁹ Magna Carta 1215.

¹⁰ Richard Gordon KC (n 4).

¹¹ Sebastian Payne, ‘The Supreme Court and the Miller Case: More Reasons Why the UK Needs a Written Constitution’ The Round Table (London) 2018 107(4) 441.

¹² R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

¹³ Bleddyn Davies, ‘The EU Referendum: Who Were the British People?’ (2016) 27 KLJ 323.

¹⁴ Jo Eric Khushal Murkens (n 2).

¹⁵ Vernon Bogdanor, ‘Why Britain Needs a Written Constitution—and Can’t Wait for Parliament to Write One’ (2018) 89(4) The Political Quarterly 584 (585).

¹⁶ Thomas Gault, ‘Whose Day in Court Is It Anyway’ (2002) 33 Victoria U Wellington L Rev 631.

¹⁷ ibid.

¹⁸ Daniela Muth, ‘Basic conceptions of the legal system: a critical comparison between New Zealand and Germany’ (2004) 10 Canterbury Law Review 152.

¹⁹ Samantha Brown, ‘Modern Constitutionalism in Westminster Democracies’ (2007) 17(3) Parliamentary Affairs 456 <https://doi.org/10.1111/j.1467-923X.2007.00879.x>

²⁰ House of Commons Political and Constitutional Reform Committee, A new Magna Carta? (HC 2014-15, 463).

²¹ Vernon Bogdanor, Tarunanbh Khaitan and Stefan Vogenauer, ‘Should Britain Have A Written Constitution?’ (2007) 78 Political Quarterly 499.

²² Merris Amos, ‘Democratic State, Autocratic Method: The Reform of Human Rights Law in the United Kingdom’ (2024) 73 International and Comparative Law Quarterly 1<https://doi.org/10.1017/S0020589323000441>

²³ ibid.

²⁴ Jo Eric Khushal Murkens (n 2).

²⁵ ibid.

²⁶ Krzysztof Koźmiński and Polina Konca, ‘The law of interpretation as a recipe for legal knowledge in the era of post-modernization of legislation’ (2025) 1<https://doi.org/10.1080/20508840.2025.2521177>

²⁷ Vernon Bogdanor, Tarunanbh Khaitan and Stefan Vogenauer (n 21).

²⁸ ibid.

²⁹ A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (17th edn, Pearson 2022).

³⁰ Jon elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke LJ 364.

³¹ Jo Eric Khushal Murkens (n 2).

³² ibid.

³³ K.G. Banting and R. Simeon, Redesigning the State: The Politics of Constitutional Change in Industrial Nations (Palgrave Macmillan 1985) 33.

³⁴ R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.

³⁵ R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26.

³⁶ ECHR, art 8.

³⁷ Daly [n 35] para 9.

³⁸ A and Others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.

³⁹ Human Rights Act 1998.

⁴⁰ Mark Elliot and Robert Thomas, Public Law (5th edn, Oxford University Press 2024), 258.

⁴¹ ibid.

⁴² HRA 1998, s 2(1); ECHR 1950, art 2.

⁴³ HRA 1998, s 2(1); ECHR 1950, art 10.

⁴⁴ HRA 1998, s 2(1); ECHR 1950, art 7.

⁴⁵ Joint Committee on Human Rights, The Government’s Independent Review of the Human Rights Act, HL Paper 89, HC 8905 (2012–13)<https://publications.parliament.uk/pa/jt5802/jtselect/jtrights/89/8905.htm> accessed 13 August 2025 para 25.

⁴⁶ ibid.

⁴⁷ Rent Act 1977.

⁴⁸ European Convention on Human Rights 1950.

⁴⁹ Jan Van Zyl Smit, ‘The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza’ (2007) 70(1) MLR 294.

⁵⁰ Ayesha Riaz, ‘Sections 3 and 4 of the Human Rights Act and Their Impact on the United Kingdom’s Constitutional Arrangements’ (2021) 2021 QMLJ 133.

⁵¹ Joint Committee on Human Rights, Legislative Scrutiny: Bill of Rights Bill (House of Lords Paper 611, 2025) <https://publications.parliament.uk/pa/jt5803/jtselect/jtrights/611/report.html> accessed 14 August 2025.

⁵² Robert Blackburn, (n 8).

⁵³ Political and Constitutional Reform Committee, A New Magna Carta? Second Report of Session 2014–15, HC 463 (House of Commons, 2014).

⁵⁴ Rodney Brazier, ‘How Near is a Written Constitution?’ (2018) 52(1) Northern Ireland Legal Quarterly 1.

⁵⁵ Robert Blackburn (n 8) (3).

⁵⁶ Denis Galigan, Constitution in Crisis: The New Putney Debates (I.B. Tauris & Co. Ltd 2017). ⁵⁷ Jo Eric Khushal Murkens (n 2) (967).

⁵⁸ Political and Constitutional Reform Committee, A new Magna Carta? Second Report of Session 2014–15, HC 463 (House of Commons, 2014).

⁵⁹ ibid.

⁶⁰ Political and Constitutional Reform Committee (n 58) (‘The case against a written constitution’).

⁶¹ Roger Scruton, A Political Philosophy (Continuum 2006) vii-viii.

⁶² Political and Constitutional Reform Committee (n 58).

⁶³ ibid.

⁶⁴ Jo Eric Khushal Murkens (n 2) (967).

⁶⁵ Rodney Brazier (n 54) (17).

⁶⁶ Peter Fitzpatrick and Yifat Hachamovitch, Time Out of Mind: an Introduction to the Semiotics of Common Law (Pluto Press 1991).

⁶⁷ Mark Elliot and Robert Thomas (n 40) 31.

⁶⁸ Political and Constitutional Reform Committee [n 58] paras 10–11.

⁶⁹ Mark Elliot and Robert Thomas (n 40) 27.

⁷⁰ T.R.S. Allan, ‘Constitutionalism at Common Law: The Rule of Law and Judicial Review’ (2023) 82(2) Cambridge Law Journal 236.

⁷¹ Political and Constitutional Reform Committee (n 58).

⁷² T.R.S. Allan (n 70).

⁷³ Michael Gordon, ‘Ministerial Irresponsibility in the UK Government: Constitutional Accountability after Theresa May and Boris Johnson’ [2024] Public Law (forthcoming).

⁷⁴ Acton, Letter to Bishop Mandell Creighton, 3 April 1887.

⁷⁵ Mark Elliot and Robert Thomas (n 40) 25.

⁷⁶ Mark Elliot, ‘Parliamentary Scrutiny and the Rule of Law’ (2015) 78 MLR 104.

⁷⁷ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL).

⁷⁸ T.R.S. Allan, ‘Constitutionalism at Common Law: The Rule of Law and Judicial Review’ (2023) 82(2) Cambridge Law Journal 236.

⁷⁹ S.E. Finer, ‘The Individual Responsibility of Ministers’ (1956) 34 Public Administration 377.

⁸⁰ Bradshaw v Secretary of State for the Home Department [2006] EWHC 327 (Admin).

⁸¹ Chaga Bihari Mahingoda, ‘UK Constitution: Should it be Codified’ [2022] SLIIT 102 (108).