Should England and Wales have a Written Constitution

Abstract

A constitution is an established composition of laws that determine how a nation operates. I will be arguing that not having a constitution is more beneficial to the jurisdiction of England and Wales, as the unwritten constitution is a sufficient replacement, not having a written constitution allows for flexibility during times of extreme change and it protects parliamentary sovereignty and democracy.

Introduction

To understand how a jurisdiction operates, we often look to its constitution. But what happens when there is no written constitution? This is true of England and Wales, as instead an “unwritten constitution” is present. This has understandably led to much discussion about whether the lack of a formal constitution aligns with our current social and economic climate. In Miller[1] it is argued that “common law, statutes, conventions and practice” act as the replacement for this constitution. However, some scholars believe that this isn’t a sufficient substitution, and this is the viewpoint I will be arguing against. I will first discuss background information surrounding constitutions and their relevance in a legal system. Then I will argue why a formal constitution is unnecessary, whilst providing case law and judicial precedents to support my position.

Background

A constitution is a codified framework of laws that establish how a country functions. It can do so by defining and allocating power, defining the relationship between the state and its citizens, establishing the framework of government and more. There are three important characteristics of a constitution. Firstly, the constitution is typically a single document comprised of fundamental legislation. Secondly, constitutional law is generally superior to all other sources of law, for example common law. Thirdly, courts can deem legislation as unconstitutional to protect this superiority. England and Wales does not share any similarities with the above criteria, and as a result we can ascertain that it has no formal constitution. Instead, scholars argue that the UK has an “unwritten constitution”, where the law is derived from treaties, statutes, common law and conventions, instead of a single codified document. I will now argue that this unwritten constitution is plentiful, and that there is no need for a codified constitution.

Statute

Acts of Parliament are the most superior aspects of UK law as they cannot be invalidated by anyone other than Parliament. They are the statutes that entrench fundamental principles of the UK into law. They can only be “struck down” by Parliament to uphold Parliamentary sovereignty. This ensures that the three main bodies of the UK legal system, the legislative, judiciary and executive, remain separate. This system of checks and balances ensures that none of these bodies have too much power. A written constitution could be advantageous here as it would clearly define the executive, legislative and judiciary. There have been issues with executive overreach, specifically during Boris Johnson’s prorogation of Parliament during debates about Brexit. It could be said that having a clear constitution which defines the powers the executive has, this could have been prevented. As well as this, Michael Foran [2]argues that the main issue in the Shamima Begum [3]case was related to the role of the executive, which he defines as the requirement of them to make decisions in the interests of national security and the common good. One may argue that this is simply an opinion, and the fact that academics are attempting to pinpoint the role of the executive show that this is an ambiguous area that needs to be clarified in a constitution.

However, an unwritten constitution is sufficient as existing conventions and statutes already provide information regarding the separation of powers. An example of this is judicial review, whereby the judiciary are aware that they can review actions of public bodies for illegality, procedural impropriety, irrationality or if they interfere with the European Convention on Human Rights. A codified, written constitution wouldn’t add anything in this regard, as this system of checks and balances is already established. Although academics such as Michael Foran can argue about defining the role of the executive, the answers to these questions lie in the unwritten constitution.

Some scholars may believe that a codified constitution would also ease concerns about judicial overreach, especially in cases involving the Human Rights Act 1998. Section 3 allows judges to interpret legislation in a way that is compatible with the European Convention on Human Rights “so far as it is possible to do so”. This poses a threat to the separation of powers, as “so far as it is possible” leaves room for discretion, that could possibly cause judges to overstep and harm Parliamentary sovereignty. A written constitution declaring the powers that the judiciary have and separating them from that of the legislative would prevent concerns of judicial overreach. However, Lord Steyn urges that this isn’t as big of an issue as the public seem to think, as he states that “A declaration of incompatibility is a measure of last resort.” This is seen to be true as in Nicklinson[4], where it was established that the courts are likely to leave controversial matters for Parliament to decide upon to prevent overstepping. Therefore, a formal constitution would not benefit the UK in regards to the Human Rights Act and instead would disadvantage the legal system. The language of Section 3 is deliberately left ambiguous to allow judges to use this discretion to handle cases based on their specific context, so a constitution detailing the roles of the judiciary wouldn’t change the ambiguous language of this act.

Flexibility

It is often contended that the reason this jurisdiction has no formal constitution is to keep the law flexible. Being able to alter it during a period of political, social or economic change is beneficial as it prevents the long and difficult process of repealing a constitutional statute. An interesting comparison here would be the Indian Supreme Court finding constitutional amendments unconstitutional. As a result, the Indian Constitution remains rigid. I disagree with having an overly rigid legal system, as keeping the law too inflexible can result in over-criminalisation, or the law being applied in a different context to that which it was created in. During the Covid-19 pandemic, England and Wales was able to introduce legislation known as “lockdown laws” to minimise the spread of the virus. This is one example of where not having a constitution has benefited the nation, as laws were created depending on the specific context of the pandemic. Although some would argue that having a codified constitution would improve clarity for the public, having a flexible system allows laws to be amended, created or repealed without the lengthy process of making changes to a constitution. The Covid-19 pandemic was an urgent situation where laws needed to be created immediately for public safety, and it could be argued that if there was a codified constitution, changes could not be made so quickly. What if there was a constitution? Then the UK population’s infections would have increased exponentially in the time it would have taken for formal constitutional amendments to occur.

Parliamentary Sovereignty

Parliamentary sovereignty is defined by A.V. Dicey as “Parliament has the right to make or unmake any law whatever, and no person or body is recognised, as having a right to override or set aside the legislation of Parliament.” [5]According to this definition there are three core elements, Parliament can legislate on any subject, Acts of Parliament cannot be invalidated by courts and Parliament cannot bind its successors. I will be focusing on the last element, as having a constitution causes Parliament to bind its successors. I previously mentioned the requirement of a constitution being that it is superior over all other sources of law. However, having a constitution would mean constitutional laws are superior, and so Parliament are not truly the supreme law makers of England and Wales. This would cause tension as to which legislation would be supreme. This would also mean that Parliament would be binding future Parliaments by deciding which legislation is constitutional. Introducing a written constitution would cause significant clashes with parliamentary sovereignty, which is a fundamental aspect of English and Welsh law. Jackson[6] focused on the Hunting Act 2004 [7]and whether it was valid. During this case, commentary regarding parliamentary sovereignty was prevalent, specifically amongst Lord Steyn whereby he implied that the judiciary might impose limits on Parliament in extreme cases. Though there is not much evidence to suggest this has occurred, this case began an interesting debate about whether parliamentary sovereignty is absolute. Some may argue that this hints towards a shift to a formal constitution, and that legal clarification is required in a codified document. On the other hand, parliamentary sovereignty is not a new concept and has been entrenched in the UK for hundreds of years, as it emerged through the Bill of Rights in 1689. Due to its longstanding position in UK law it is understandable that it is questioned, and simply because Lord Steyn questioned it in Jackson, does not allude to a widescale shift to a formal constitution.

Democracy

The final reason as to why England and Wales should not introduce a written constitution is due to concerns over democracy. Democracy is a system where people hold the power, they elect representatives, question ministers and parliament uses its sovereignty to create laws on their behalf. How would a written constitution affect democracy if it were to be introduced? James Madison [8]argues that it is a difficult challenge to protect rights of the majority when a “pure democracy”, which he defines as a small group of citizens who directly govern, decide legislation based off of their own interests. This is a danger to democracy, and specifically to people from vulnerable backgrounds who would most likely not be part of this pure democracy.

Whilst it is true that a constitution could be drafted with the public input to protect democracy, it is uncertain how this would work. This is entirely new territory for the UK, so to promise democracy whilst dealing with fundamental changes to the entire population is not possible. It also decreases public legitimacy to have their lives changed in such a serious manner with no promise that their interests will be protected. It seems that the UK’s chosen method to protect democracy is through elections, but even in those circumstances there is still a large population of people whose wishes are not acted upon. Due to this notion, I believe that it is unlikely that the public will favour a new constitution. On the other hand, it could be argued that a single, clear document could increase democracy by making legal education simpler by containing it in one place. This could promote civic engagement, help people further understand who they are electing and allow them to hold government to account. Vernon Bogdanor argues in favour for a written constitution as “people are entitled to know the rules of the club”, [9]which supports the idea that it would increase democracy by ensuring the public are aware of the legal framework that affects them, in a simplified manner. But I would disagree. Statues, conventions, treaties and common law are available through a multitude of sources and are public knowledge. Having a codified, written constitution does not mean that suddenly the public wish to get more involved with legislation and the executive. The threat to democracy is the bigger issue here, as there are concerns that the  interests of the public will be undermined by a small majority of people.

Conclusion

It is clear that the lack of a formal, codified constitution is a well-considered decision. It is simply not necessary to introduce one when the current unwritten constitution has been functioning with little controversy. That is not to say that controversy has not occurred, as I have welcomed the idea that there are problems with the current system, including the separation of powers being obfuscated, and issues with the clarity of law. However, introducing a new codified constitution would create more issues, mainly around having an overly rigid legal system, parliamentary sovereignty, and democracy. I would therefore argue that England and Wales should not introduce a written constitution.

Bibliography

Statutes:

Human Rights Act 1998, s 3

Hunting Act 2004

Cases:

R(Miller) v the Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41

R (Jackson) v Attorney General [2005] UKHL 56

Shamima Begum v Secretary of State for the Home Department [2024] EWCA Civ 152

Blogs:

Shaylor Harrison, ‘Do we need a written constitution?’ (The Constitution Unit Blog, 8 January 2020) < https://constitution-unit.com/2020/01/08/do-we-need-a-written-constitution/#:~:text=The%20second%20argument%20in%20favour,draw%20up%20a%20codified%20constitution.> accessed 10 July 2025

Books:

Dicey A V , An introduction to the Study of the Law of the Constitution (first published 1885, Macmillan) 39

Madison James Federalist No.10 critique of pure democracy (first published 1787)

Online Journals:

Michael Foran, ‘Shamima Begum, the Separation of Powers, and the Common Good’ (2021) UK Constitutional Law Association < https://ukconstitutionallaw.org/2021/03/17/michael-foran-shamima-begum-the-separation-of-powers-and-the-common-good/> accessed 10 July 2025

[1] R(Miller) v the Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41

[2] Michael Foran, ‘Shamima Begum, the Separation of Powers, and the Common Good’ (2021) UK Constitutional Law Association < https://ukconstitutionallaw.org/2021/03/17/michael-foran-shamima-begum-the-separation-of-powers-and-the-common-good/> accessed 10 July 2025

[3] Shamima Begum v Secretary of State for the Home Department [2024] EWCA Civ 152

[4] R (Nicklinson) v Ministry of Justice [2014] UKSC 38

[5] A V Dicey, An introduction to the Study of the Law of the Constitution (first published 1885, Macmillan) 39

[6] R (Jackson) v Attorney General [2005] UKHL 56

[7]  Hunting Act 2004

[8] James Madison Federalist No.10 critique of pure democracy (first published 1787)

[9] Harrison Shaylor, ‘Do we need a written constitution?’ (The Constitution Unit Blog, 8 January 2020) < https://constitution-unit.com/2020/01/08/do-we-need-a-written-constitution/#:~:text=The%20second%20argument%20in%20favour,draw%20up%20a%20codified%20constitution.> accessed 10 July 2025