Evaluating the United Kingdom’s Constitution: Modern Framework or Fragmented Sources?

Introduction

The question of whether the United Kingdom possesses a constitution is a long-standing debate in public law. Unlike the vast majority of modern democratic states, the UK lacks a single, codified document that can be identified as ‘the constitution’. Instead, its constitutional arrangements are derived from a variety of sources, including statutes, common law, and unwritten conventions. This has led some commentators to argue that the UK has, at best, a disjointed ‘assemblage’ of rules rather than a coherent constitution in the modern sense. This essay will argue that while the UK’s constitution is formally distinct from the modern, codified model, it nevertheless performs the essential functions of a constitution. It establishes the framework of government and regulates the relationship between the state and its citizens. However, its uncodified nature and the continuing dominance of parliamentary sovereignty mean that it falls short of being a constitution in the full modern sense, primarily because it lacks the core modern feature of being a supreme, entrenched higher law.

The UK Constitution as an ‘Assemblage’ of Sources

The argument that the UK’s constitution is merely an ‘assemblage’ of sources is based on its uncodified and fragmented nature. A ‘modern’ constitution is typically understood as a single, authoritative document, established at a specific point in time, which sets out the fundamental rules and principles of governance (King, 2007). The US Constitution of 1787 is a prime example. By contrast, the UK’s constitutional framework has evolved over centuries and is contained in a variety of disparate sources.

The most significant of these sources is statute law. Key Acts of Parliament form the bedrock of the constitution, including historic documents such as the Magna Carta 1215 and the Bill of Rights 1689, which established fundamental principles like the rule of law and the supremacy of Parliament over the monarch. More recent statutes have continued this process, such as the Parliament Acts 1911 and 1949, which defined the relationship between the House of Commons and the House of Lords, and the Human Rights Act 1998 (HRA), which incorporated rights from the European Convention on Human Rights into domestic law. The Constitutional Reform Act 2005 further modernised arrangements by creating the Supreme Court and reforming the office of the Lord Chancellor to enhance judicial independence.

Alongside statute, the common law, or judge-made law, is another crucial source. Landmark cases have established key constitutional principles. For example, Entick v Carrington (1765) affirmed the principle that the executive cannot interfere with the rights of individuals without legal authority. More recently, cases such as R (Miller) v The Prime Minister [2019] UKSC 41 demonstrated the judiciary’s role in upholding constitutional principles, in this instance by ruling that the prorogation of Parliament was unlawful because it frustrated Parliament's ability to carry out its constitutional functions.

A uniquely British feature is the importance of constitutional conventions. These are unwritten rules of political practice that are considered binding on those who operate the constitution but are not enforced by the courts (Dicey, 1915). Examples include the convention that the monarch will grant Royal Assent to any bill passed by Parliament and the principle of individual ministerial responsibility. These rules are vital for the smooth functioning of government, yet their non-legal status makes them appear less secure than the formal rules found in a written constitution. This collection of statutes, judicial decisions, and informal conventions can indeed appear to be a loose ‘assemblage’ rather than a unified, singular entity.

Performing the Functions of a Modern Constitution

Despite its fragmented form, it can be argued that this ‘assemblage’ of sources works together to perform the primary functions expected of a modern constitution. A constitution, in a functional sense, should establish the main institutions of the state, distribute power between them, and define the relationship between the state and the individual (Finer, 1979). The UK system, viewed as a whole, largely achieves these objectives.

Firstly, the UK constitution establishes and regulates the organs of government. The powers of the legislature (Parliament), the executive (the Government), and the judiciary are all set out, albeit across the different sources. For instance, the Bill of Rights 1689 establishes Parliament's legislative supremacy, while the Constitutional Reform Act 2005 clarifies the separation of powers by creating an independent Supreme Court. The powers of the executive, historically derived from the Royal Prerogative, are increasingly being defined and limited by both statute and judicial review, demonstrating a system that regulates state power.

Secondly, the UK constitution protects the rights and freedoms of citizens. While it lacks a single, entrenched Bill of Rights, protection has historically been provided through the common law principle that "everything is permitted except what is forbidden by law" (Loveland, 2021, p. 78). This has been significantly supplemented by the HRA 1998, which requires legislation to be read and given effect in a way which is compatible with Convention rights and allows courts to declare statutes incompatible. Although the HRA is not formally entrenched, it has had a significant constitutional impact, creating a culture of rights-based review and functioning as a de facto bill of rights.

Therefore, although the rules are not located in a single place, the system provides a framework for government and the protection of rights. The sources are not simply a random collection; they interact to create a functioning, if complex, constitutional order.

Shortcomings of the ‘Assemblage’ Model

However, there are significant differences between the UK’s arrangements and a constitution in the ‘modern sense’, which prevent the argument from being fully convincing. The most critical distinction lies in the concept of constitutional supremacy. A modern constitution is typically supreme law, meaning all other laws and governmental actions must comply with it, and it can only be changed through a special, more difficult amendment process (entrenchment).

The UK system is fundamentally different due to the doctrine of parliamentary sovereignty. As traditionally defined by A.V. Dicey, this means that Parliament has the legal power to make or unmake any law whatsoever, and no person or body can override or set aside its legislation (Dicey, 1915). This has a profound consequence: there is no higher law that Parliament cannot change. Even the most important ‘constitutional statutes’ like the HRA 1998 could, in theory, be repealed by a future Parliament through an ordinary legislative process. This flexibility is sometimes seen as a strength, allowing the constitution to adapt without the formality of a complex amendment process. However, it also means that fundamental rights and the very structure of government are not legally protected from a government with a majority in Parliament. This lack of entrenchment is a significant departure from the modern conception of a constitution as a durable shield against the abuse of state power.

Furthermore, the reliance on unwritten conventions creates potential for uncertainty and controversy. Because conventions are not legally enforceable, their meaning and application can be contested. The Miller case concerning the prorogation of Parliament arose precisely because the limits of the Prime Minister’s prerogative power in this area, which was governed by convention, were unclear. This had to be resolved by the Supreme Court, highlighting how the non-legal nature of conventions can create constitutional gaps that are less likely to exist in a comprehensive written constitution.

Conclusion

In conclusion, the assertion that the UK has a constitution ‘in the modern sense of the word’ can only be accepted to a limited extent. On one hand, it is overly simplistic to dismiss the UK's arrangements as merely an ‘assemblage’ of different sources. The combination of statute, common law, and convention creates a coherent and functioning system that establishes the institutions of government, distributes power, and protects citizens’ rights, thereby fulfilling the core purposes of a constitution. In this functional sense, the UK certainly has a constitution.

However, the UK constitution differs fundamentally from the ‘modern’ model in its form and, crucially, its status. The absence of a codified, single document is the most obvious difference, but the most profound is the lack of constitutional supremacy due to the doctrine of parliamentary sovereignty. A modern constitution is conceived as a higher form of law, placing legally enforceable limits on the power of the state. In the UK, the constitution is ultimately subservient to the will of Parliament. While this provides flexibility, it also means the system lacks the stability and protected status of its modern counterparts. Therefore, while the UK possesses a working and effective constitution, its defining features prevent it from being classified as one ‘in the modern sense of the word’.

References

• Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. London: Macmillan.
• Entick v Carrington (1765) 19 St Tr 1030.
• Finer, S.E. (1979) Five Constitutions. London: Penguin Books.
• King, A. (2007) The British Constitution. Oxford: Oxford University Press.
• Loveland, I. (2021) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 9th edn. Oxford: Oxford University Press.
• R (Miller) v The Prime Minister [2019] UKSC 41.