Public Law for Everyone

It is sometimes said that the United Kingdom doesn’t have a constitution – which is understandable, but wrong. The perception that there ‘isn’t a constitution’ arises from the fact that the UK lacks a ‘written’ – or codified – constitution. In that regard, the UK is a global outlier.^[1] The vast majority of countries do have codified constitutions. The role played by such constitutions is not uniform across the myriad countries in which they are found, but some generalisations are possible. For one thing, a codified constitution at least forms a starting-point when we wish to find out what the constitution is. The constitutional text may not supply all the answers – we might, for instance, need to consult judicial decisions to find out how a constitutional provision has been interpreted and, therefore, what it really means – but the text at least supplies a point of departure. The constitutional text is also likely to have a status that sets it apart, to some extent at least, from other law. In some systems – the United States of America being a well-known example – the constitution’s status is such that it takes priority over all other forms of law, meaning that other laws can be set aside, or ‘struck down’, if they conflict with the constitution.

The United Kingdom is different for two key reasons. The first is the well-known reason, already mentioned, that it lacks a codified constitution. That does not mean that the whole of the constitution is unwritten, such that it exists in its entirety in the shape of informal custom or tradition. Indeed, there is a large body of legislation that sets out key constitutional arrangements. For instance, the Human Rights Act 1998 (HRA) gives legal effect to a set of human rights, empowering individuals to enforce them and authorising courts to uphold them. Meanwhile, the devolution legislation^[2] created legislatures and governments in Scotland, Wales and Northern Ireland, investing them with substantial legal powers and fundamentally reshaping the UK’s constitutional structure.

In legislation such as the devolution statutes and the HRA, then, we find texts that do the very things – setting out fundamental rights and the arrangements for their protection, arranging the institutional architecture of the state by distributing power to sub-national levels of government – that we would expect a codified constitution to do. In this sense, some parts of the UK constitution are certainly ‘written’. But the UK constitution is not ‘codified’. That is because none of the things just referred to are to be found in a constitutional text as such; rather, they are set out in disparate Acts of the UK Parliament. It follows that for all that many of the UK’s most important constitutional features are laid down in textual form, there has never been any attempt to systematise and draw them together in the form of a comprehensive, codified constitutional document.

The second factor that distinguishes the UK system concerns what might be termed its non-hierarchical nature. As mentioned above, codified constitutions generally sit apart, at least in some respects, from ordinary law. That might mean that the constitution itself has a form of priority over other law, whether the absolute priority enjoyed by the US Constitution or a form of qualified priority that demands a legislative supermajority before legislation can depart from the constitution. It might also mean that the constitution’s status as a repository of fundamental, enduring values and rights is reflected in arrangements that make its amendment more difficult than the requirements that apply to the enactment or amendment of regular law.

None of this, however, applies to the UK system. In the UK, the highest form of law (at least in orthodox theory) is primary legislation enacted by the UK Parliament. It is true that Acts of Parliament take priority over other forms of law – including devolved legislation, secondary legislation (made, for example, by Ministers) and the common law. There is therefore a hierarchy of legal norms in the UK. But the UK nevertheless lacks a hierarchical constitution in the sense described above – both because there is no codified constitutional text that sits apart from regular law, and because within the category of Acts of Parliament, all legislation is legally equal. As the influential Victorian constitutional scholar AV Dicey put it, ‘neither the Act of Union with Scotland’ – a profoundly constitutionally important statute – ‘nor the Dentists’ Act 1878’ – which Dicey, no doubt offending dentists everywhere, described as ‘utterly unimportant’ – ‘has more claim to be considered a supreme law’. Rather, each ‘embodies the sovereign will of Parliament’ and each can be ‘legally altered or repealed’ in exactly the same way.^[3]

The absence of constitutional hierarchy that flows from the legal equality of all Acts of Parliament has substantial implications. Among other things, it means that the UK lacks not only a codified constitution per se but also anything that can reasonably be considered the functional equivalent of such a constitution. At least on the orthodox view, legislation dealing with important constitutional matters can be amended or repealed just as easily as other legislation. This, in turn, precludes constitutional arrangements from being accorded a special legal status and means that any constitutional provision can be changed or overturned by a simple majority in Parliament.

A major review of the UK constitution published in 2023 considered this state of affairs to be highly problematic, and argued that there is ‘a strong case for creating a clearer distinction between ordinary and major constitutional legislation’.^[4] This, it was said, would allow heightened scrutiny of legislation affecting the constitution and the ‘embedding’ of constitutional statutes in order to protect them against casual repeal or amendment. For example, legislation such as that considered above – concerning constitutionally fundamental matters like devolution and human rights – could be protected against repeal unless a supermajority of parliamentarians voted in favour. In fact, Dicey’s view that all Acts of Parliament are equal has been challenged in recent years by the courts themselves, Laws LJ having argued in the Thoburn case that there is a category of constitutional legislation that is immune from implied repeal.^[5] But although that view has received some support at Supreme Court level,^[6] the degree of protection afforded to constitutional legislation understood in the Thoburn sense is decidedly modest. If all that is required to displace it is statutory language that is express – or, as Laws LJ put it, ‘specific’ – rather than implied, that is hardly a significant obstacle.

None of this is to deny that the UK has a constitution. But we must acknowledge that the UK’s is an unusual constitution, both because it is not codified and because constitutional law is not set apart from ordinary law in the way that codified constitutions usually are. The fact that, as a result, almost any aspect of the UK constitution can be changed just by passing an Act of Parliament on the basis of a simple majority might be thought to bring some advantages. It certainly secures the oft-vaunted flexibility of the UK constitution. But at least a degree of inflexibility is arguably a constitutional virtue, not a vice. If one of the purposes of constitutions is to reflect and give effect to values, rights and arrangements that are fundamentally important, it is not clear that it is a good thing if such matters are vulnerable to the whims of passing majorities in Parliament. All of this means that the more difficult question – to which I will return later in this series of posts – is not whether the UK has a constitution, but whether the constitution it undoubtedly has is fit for purpose. That question assumes particular importance at a time when the forces of populism and authoritarianism are threatening to overwhelm other established democracies. In those circumstances, the UK constitution’s flexibility could turn out to be not a strength, but its greatest weakness.