The British constitution, contrary to popular description, is not ‘unwritten” – a good part of

it is written – but it is uncodified.

There had always been debating tides rise and fall on whether a written constitution serves
British constitution better than unwritten does. Recently, the tide had been spattered high
enough when a constitutional fundamental issue Brexit welcomed to the UK. The debates
between which types of constitution need to be implemented for suiting the best comes
from ample scholarly discussions and judicial writing. In regard of the question above
stated, this essay will be discussing the pros and cons for codifying a constitution as well as
the nature and the purpose of constitution.
it was in the reign of King John, the first statutory written source implemented in the English
legal system. The first written legal source establishes the right to jury trial, writ of habeas
corpus and freedom of the church. There is a significance issue in the history of UK which
varied the position of the monarchy. The monarchy was abolished in the reign of Charles I
due to his arbitrariness and the civil war outbreak in 1641 which led to a republic.
Subsequently the restoration of the monarchy by Charles II. Following by the deceased of
Charles II, the prerogative power had been keen curtailed by the establishment of Bills of
Right. The brief discussion for the development of British constitution is to illustrated that
UK had a relatively stable history which is the reason why UK had not yet codified its
constitution. In contrast with the United State, which undergo a constitutional moment, 100
years Civil War after a drastic change in constitution.
A definition for constitution will be a fundamental organization converting the legal sources
which steers the nation’s governance. Bolingbroke left a quotation as what a definition for
constitution as “assemblage of law, rule, practice and principal”. By all means, common law,
statutes, convention and law and custom of parliament could be taken into account as well.
The difference between codifies constitution and uncodified constitution is rather
straightforward. Codifying a constitution means converting all the common law, statue,
rules, practice, convention, etc. into a single document which possesses a higher legal status
overriding rules which is known as constitutional supremacy. While uncodified constitution
is more of a ‘dispersed rulebook’, impart the concept of parliamentary supremacy. The
reason for referring UK constitution as ‘uncodified’ rather than ‘unwritten’ is because UK
does have plenty handful of written constitution. For instance, Magna Carta, The Bill of
Rights, etc. These are the source of laws which binds the successors.
The issue of Brexit, having all people in the UK holding their very own perspective regarding
to the current status of existing constitution. Hence, the discussion for the advantage and
disadvantage of codifying a constitution will be discussed below.
The issue of ‘certainty’ will always be regarded as the solid reason for codifying a
constitution. Certainty is always been held as the means of doing justice. A codified
constitution in a single document dictates the operation of the law and conduct of
government rather than the sprawling mess of conventions, common law and international
treaties. In view of the incorporation of the source of law, the law will be predictable and it
confer clarity which the legal advisor can advise their client confidently without making
mistake, the public can refer to the law so as to reduce the litigation need whereas the
clarity of the law is well-defined. The ambit where stirs too much ambiguity comes from the
royal prerogatives and the conventions. It has become nebulous just when the clarity is
needed, the conventions become murky in a way questioning can a government legislate
without consent regarding on delegated matters. In the issue of Brexit as we can see, the
government treated Scotland and Northern Ireland vote to remain in European Union as no
constitutional relevance which is obviously in breach of the Sewel Convention and Scotland
Act 2016. The wording in s28. of Scotland Act 2016 ‘normally’ does not seems to illustrate to
what extent should the executive performs its discretion. The minister power its authority is
not derived from the law, but from the conventions, owe to their existence to the
acquaintances of those whom they bind. The ministerial code, which is a set of rules
governing the conduct of the minister and the collective ministerial responsibilities are the
conventions which is flexible in nature, but sometimes drew themselves nebulously lack of
certainty. For instances, Lord Bates resignation in the House of Lords on the ground of late
for parliamentary meeting and Sir Thomas Dugdale hold his blame as to the flawed report
for an acquisition of the land prepared by his department shows a responsibility for their
ministerial responsibility. While we have seen James prior N refused to resign in the
following escape of the prisoners in the maze prison. It was ambiguous as to what extend
should the minister shoulder their responsibility and when they obliged to. The royal
prerogative has also suffers in grey area as to whether the government can issue a war to
another nation under the name of the crown without having discuss in the parliament (War
against Iraq) and whether parliament can provoke article 50 of the Treaty of Europe Union
to leave European Community never having a clear legislative authority in the case of R(on
the application of Miller v Prime Minister). These issues show the downside of not having
codify the constitution as Emma Rickets writes how uncertain, unpredictable the power
retained by the sovereign.
Apart from uncertainty, the codified constitution can safeguard a provision or a law being
change on a whim or by passing a partisan interest. A codified constitution requires a super-
majority in terms for changing a fundamental constitution law, such as Brexit and human
rights. In regards to the issue of Brexit, it is questioned whether the serving constitution is
flawed for the reasons for having difficulties to change a fundamental constitutional law.
The more significant discussions lie on the human rights issue. The hot topic to discuss
whether the human rights is at stake as the current constitution by repealing it with a single
majority. A codified constitution can safeguard the precarious status of human rights.
In another hand, the reasons for keeping the uncodified constitution is the significant nature
of flexibility as it is unnecessarily to change a constitution which is well-served for decades
in the UK. The flexibility of uncodified constitution is flexible and it evolve with the changing
circumstances. Some had referred it as a ‘living constitution’ as it evolves and adapt to social
attitudes. The best illustration must be the enactment of the Gender Recognition Act 2003
in the case of Belinger v Belinger. In belinger’s case, it was held that the Matrimonial Cause
Act 1973 was incompatible with article 12 of ECHR. Some might launch an argument on the
risky position of Human Rights in an uncodifies constitution. The fact is, the uncodified
constitution provide means of protection for Human Rights by legislation and common law.
The most significant objection to codified constitution is that judges will have to decide on
political matter. Implementing codified constitution will lead to a string form of
constitutionalism which contains in its pathologies. Rather than attempting to ennoble the
political realm to public good, it confers constitutionalism so that the law can assert
superiority. Judges as an unelected legislator legislate on matters will affront to the value of
democracy enshrined in UK. As Lord Falconer held, it is unthinkable for judges to legislate on
the matters of discrimination, abortion, etc which usurped the position of legislative and
impeaching the three bodies in the constitution. Then, another reason for not codifying the
constitution is, preclude the bad laws to perpetuate. In contrast with the codified
constitution, it only requires a simple majority of parliament for changing a law. It takes the
rigidity away.
As the issue of Brexit had brought up the fact that the UK constitution might not be as
consummate as the public thought it was to be. Hence that is the reason why a living
constitution will in need to fill in the lacuna and the flaws.