Advantages and the disadvantages of an unwritten constitution

Question

What are some of the advantages and the disadvantages of having an unwritten constitution?

Answer

The UK does not have a traditional written constitution (Parpworth, 2008). The UK constitution is found in different sources, with many sources being in a written form, and therefore, making it possible to assert that the UK constitution is ‘uncodified’, and not fully ‘unwritten’ (Le Sueur, 2013). Some advantages of having an uncodified constitution include having legislative flexibility. Under the implied repeal doctrine, acts of parliament can be modified to mirror the continuously developing needs of the country, and address them without being restricted by a written constitution and the manner in which legislative power can operate under such a constitution. However, with this flexibility there is a possibility of government domination and unrestricted legislation (Bogdanor, 2009). Notwithstanding, there is a limit to the doctrine of implied repeal through section 2 of the European Communities Act 1972, providing that Acts of Parliament should be construed by courts to be consistent with EU law (Parpworth, 2008).

An example of a disadvantage of an uncodified constitution is the fact that the separation of powers between the legislature, judiciary and the executive is not clear. Nonetheless, changes have been implemented through reforms to further facilitate the separation of powers (The House of Lords Act 1999; The Constitutional Reform Act 2005).

References

Le Sueur A, Sunkin M, Murkens J, (2013) Public Law: Text, Cases, and Materials. Oxford: OUP

Parpworth Neil, (2008) Constitutional and Administrative Law. 5th edn, Oxford: OUP

Bogdanor V, (2009). The New British Constitution. Hart Publishing

The House of Lords Act 1999

The Constitutional Reform Act 2005