Announcement: Undergraduate Essay Prize Winner

By: The Constitution Society

The Constitution Society is delighted to announce that Priyansh Shah of the LSE has been award the 2023 Undergraduate Essay Prize. Supported by Hart Publishing, Priyansh will receive £500 as a cash prize and £200 in book vouchers from Hart. The judging panel of Professor Andrew Blick, Dame Eleanor Laing MP, Professor Aileen McHarg, Sir Richard Mottram and Professor Alison Young were especially impressed with the strength and originality of the essay’s argument. It has received minor edits ahead of online publication and is available to read in full below. The Constitution Society and Hart Publishing extend their warmest congratulations to Priyansh and encourages applications again next year. 

To what extent have events since 2016 exposed weaknesses in the UK’s uncodified constitution?

The uncodified constitution of the UK is a peculiarity that has received praise and derision in equal measure. The very same “peculiar genius” and ”efficient secret”[1] which Bagehot claimed gave the UK’s constitution untold merits has been equally emphatically described as a vehicle for “elective dictatorship” by Hailsham.[2] The same parliamentary sovereignty that prevented King James I from ruling by decree[3] is now a vehicle for the government’s implementation of policies that encroach on human rights.[4] I argue these contradictions come from a misunderstanding of what exactly the unwritten constitution is supposed to do. Viewing the uncodified constitution purposively reveals a key feature: the UK’s uncodified constitution is constitutive of authority, not restrictive of it. This is crucial, as it is this function of the constitution that has allowed the recent onset of populist politics that strain the conventions and rules of engagement that have long been considered part of the same unwritten constitution. In that respect, one can view the very nature of the constitution as constitutive to be a weakness, in that it fails to prevent what we consider to be undesirable conduct from our leaders. But this analysis seems too shallow. Instead, this allowance of the exercise of power by leaders is precisely what the uncodified constitution is designed for. In that sense, the purpose has been served, perhaps too well, and the solution lies not in “fixing” the existing constitution but in a complete re-imagination of the terms by which we accede to the authority of the state. 

The central principle of the unwritten constitution is that of parliamentary sovereignty. In Dicey’s Law of the Constitution, this principle was front and centre, and there it has stayed.[5] The principle reflects the historical power struggle from the Magna Carta in the thirteenth century through the strife in the seventeenth century. Since the conquest of William the Conqueror, all power in the UK was imbued in the monarch, and this power had been given to the monarch by God. Using his military authority and backed by the commandments of God, the King was the one and only source of law. However, over time, the arbitrary authority of the monarch became subject to stricter requirements. Rule by decree was tempered by the system of Orders in Council, with the Privy Council moderating the King’s authority.[6] For the purposes of taxation, the involvement of local authorities became required, and these authorities became representatives in the first parliament, whose demands had to be considered in order to maintain their cashflow. With the Civil War and Glorious Revolution, it became clear that parliament’s demands must not only be considered by the monarch but acceded to readily, because, by this point, parliament was not only exercising leverage over the monarch but also military force.[7] In so doing, parliament that had initially been counsel to the King’s policy became the driver of policy, and incorporated the King for the purposes of formal recognition of the source of power, rather than any real balance against the authority of the houses of parliament.[8] In recognition of this reality, the royal assent has been granted without exception since 1707. Essentially, as the power of parliament in real terms (in this case, economic and political force) grew, the constitution adapted to give legal supremacy to parliament. The principle of parliamentary sovereignty became the basis of legal authority in England, but this was simply an effect of a greater cause: the tendency of law to follow power, as was theorised by Thomas Hobbes in 1649.[9]

Dicey then theorised that the second constitutional principle of the UK was that of the Rule of Law.[10] This concept has evolved over time, with the Diceyan idea of the Rule of Law as a system in which all power is exercised only by law but with no substantive requirements being built upon by thinkers like Ronald Dworkin[11] and, more recently, Lord Bingham.[12] These latter thinkers have sought to insert some substantive weight into the Rule of Law, so as to say that the principle should not only confirm that power is exercised lawfully but that those laws are “good laws”. Human rights, civil liberties, and the moral greater good have been considered as things that would be protected by all instances of good law, or at least ones not to be encroached upon. Considering the question of the relationship between the Rule of Law and parliamentary sovereignty in the late nineteenth century, Dicey reckoned that the former concept vindicated the latter; the Rule of (parliament’s) Law would ensure that the will of parliament was followed in all exercises of public power and otherwise.[13] However, considering precisely this question in 2005, the Appellate Committee of the House of Lords thought otherwise. In the case of Jackson v Attorney General, Lord Steyn says that a parliament that sought to use its authority to undermine the legal order of the constitution (by revoking judicial review, for instance) could be resisted by the courts, who could use the Rule of Law in a substantive manner to qualify parliamentary authority.[14] Lord Hope continues this thread, suggesting that the Rule of Law is now the ”ultimate controlling factor on which our constitution is based”, implying that this principle had somehow overtaken parliamentary sovereignty.[15] Here, we see an essential tension. Either the Rule of Law vindicates the sovereignty of the act of parliament by ensuring that only a validly passed and interpreted act of parliament could be law, or it restricts the sovereignty of the act of parliament by imposing on it the substantive requirements of good law and the maintenance of a basic constitutional structure. We will return to this in the modern context, but the answer to the question of whether the Rule of Law sits beneath parliamentary sovereignty per Dicey or whether it binds parliamentary sovereignty per Bingham is essential to whether the uncodified constitution constitutes or restricts the exercise of power. 

The uncodified constitution also serves to inform the way in which power must be exercised for it to be valid. The central principle in this regard is the separation of powers. Powers are not totally separated in the context of the UK but they are separated insofar as the institutions that exercise significant powers in the constitution are separate and are expected to act in their separate capacities.[16] This means that, while the executive, legislative, and judicial wings of state power are generally exercised separately, there are overlaps. Firstly, the executive and judiciary are envisaged as inferior to the legislature. Parliament makes laws, the executive puts them into practice, and the judiciary interprets them for the purposes of their application. In this analysis, the executive and judiciary are agents of parliament’s will. Additionally, the government, the main executive authority in the UK, is comprised of parliamentarians from the majority party of the House of Commons. This is the feature that was both described as an “efficient secret” and a vehicle of “elective dictatorship”.[17] By this feature, an organised and disciplined majority party is able to enact popular policy using their executive power and House of Commons majority without resistance, since there is no mechanism for resisting this sort of will. The executive, as a historical holdover from the role of the King as the arbiter of all law and policy, retains an ever-shrinking ambit of prerogative, but the fact that statute and caselaw (Miller II illustrates this) continue to shrink prerogative powers implies the sovereignty of parliament over any authority of this sort.[18] Powers in the UK, then, are not altogether separate, nor equal. In fact, the uncodified constitution takes no issue with this. Once again, construing the issue purposively, one can see that, where the constitution does not seek to restrict the authority of the empowered (in this case the cabinet on the basis of parliamentary sovereignty), this sort of compromise is unsurprising. If institutions that exercise power were never meant to restrict parliament’s authority but rather to ensure that parliament’s authority (and the power of its two chambers) was applied, then the formal constraints, divisions, and practices described above are entirely fit for purpose. 

What, then, is the UK’s uncodified constitution? In effect, based on the above principles, it appears that it can be condensed into two simple rules. Firstly, law spawns from power – it is the group that intrinsically commands the most power (religiously, economically, militarily, and recently democratically) that controls what the law is. Secondly, the law of the constitution is a formal creation that essentially directs the use of this power. Law allows parliament’s sovereign, irresistible, incomparable power to be divided up and used under the authority of parliament for the efficient operation of a state. The only principled contention to this framework is the role of the Rule of Law. It is to this principle, and practical demonstrations of the form of the constitution since 2016 that we now turn. 

The analysis above predicts that the outcome of any test of the UK constitution would be a result that first vindicates parliamentary sovereignty (and particularly that of the House of Commons majority) and then enforces formal processes for exercising the power that parliament distributes. Events since the Brexit referendum in 2016 have been so strenuous a test of the constitution as to be described even as a constitutional crisis, the biggest since the seventeenth century.[19] As a result, caselaw and the passage of statute in this time lay bare the fundamentals of the constitution in practice. This began in 2017 with Miller I, where a case was brought against the government for their action in asserting their authority to activate Article 50 and start the process of exiting the European Union.[20] The government asserted that the handling of international treaties was a governmental power by prerogative. However, since the act of exiting the European Union had significant ramifications on English law, not least the defiance of the European Communities Act 1972, it was ruled that the power to activate the article lay with parliament, not government, as parliament was the only sovereign law-making authority.[21] In response, the government, holding a majority in the House of Commons, passed an Act of Parliament with one provision, authorising the activation of Article 50.[22] The next major conflict that affirmed parliamentary sovereignty was the case of Miller II, wherein the question was whether the Prime Minister could advise the Queen to prorogue parliament on prerogative for a period of 5 weeks (out of 8 weeks in the leadup to Brexit itself) without justification.[23] It was found that this action once more violated parliamentary sovereignty as parliament’s ability to hold ministers to account was an essential function that had been frustrated by the actions of the Prime Minister. These two decisions against the backdrop of Brexit show that the uncodified constitution of the UK prizes parliamentary sovereignty even today. 

Bringing devolution into this discussion, it can be seen in devolution caselaw that the principle of parliamentary sovereignty is to be unqualified. In 2018, the Continuity Bill Reference case was decided, wherein it was found that provisions in the Scottish bill that effectively qualified Westminster’s legislative competence could not be enacted.[24] Additionally, Westminster used its primary legislative capability to legislate against Scottish competence to enact the bill, placing the subject matter of the Continuity Bill (the EU (Withdrawal) Act 2018) into the reserved matters category before the ruling of the court.[25] As such, it was ruled that the much of the bill constituted an unauthorised modification to the Scotland Act and an incursion into reserved matters.[26] Where, in earlier times, commentators like Vernon Bogdanor had seen devolution as the establishment of a quasi-federal order[27] that distributed some sovereignty to the nations, the UK parliament and Supreme Court put an end to that idea, ensuring that legal competence remained vested in the sovereign UK parliament. The judgement of the Supreme Court in the 2023 case of Allister v Secretary of State for Northern Ireland even dispels with the idea that there might be “Constitutional Statutes”.[28] Such statutes were considered possibly immune to repeal by an act of parliament. Alliser v Secretary of State for Northern Ireland has consequently reaffirmed the Diceyan status of the sovereignty of parliament: free to make and unmake any law whatsoever, with no substantive Rule of Law in sight. 

Against this backdrop of the restoration of the complete sovereignty of parliament lies the willingness of parliament to delegate its authority to government, even and especially to the detriment of human rights, as was supposed to be protected under the Rule of Law according to Bingham only 15 years ago.[29] Under the EU (Withdrawal) Act 2018, there exist vast powers for ministers to amend retained EU law as they see fit.[30] Under legislature introduced to deal with the COVID pandemic, ministers were able to create offences at will to control the pandemic and the movement of people.[31] Lord Sumption noted that this delegation of power was far in excess of the scale and the urgency of the threat faced, and while he underplays the danger of COVID, this is a crucial observation regarding parliament’s readiness to allow the government to make law.[32] Under the Illegal Migration Bill 2023,[33] Public Order Act 2022, and Police, Crime, Sentencing, and Courts Act 2022, the government is empowered to: create myriad offences out of what seem like everyday activities like carrying a lock, violate convention rights without reproach from the Human Rights Act 1998, and conduct deeply unethical information gathering operations under the Home Office, for a start. Yet, these bills and acts are totally valid law once passed through the House of Commons and Lords, the latter being largely unable to resist the former (see: Parliament Acts 1911[34] and 1949).

The question that remains is “Why?”. If it is true that parliamentary sovereignty is the basic (perhaps only) principle of the UK constitution, then why does the House of Commons so readily delegate this sovereignty to the government and only the government? To this, I propose the answer explored earlier. The basic principle of the UK’s uncodified constitution is not Parliamentary Sovereignty, but rather the subsidiarity of law to power. When power was that of God vested in the King, the King made law. When power was a subject of struggle between the King, landed interests, and economic resources of the commons, the tripartite parliament made law. In the advent of democracy, the democratically elected House of Commons grew to make law. Now, with partisan politics developed to such a degree as to be able to condense the power of the whole of the Commons into the will of the Prime Minister and cabinet, the law comes from the latter, regardless of what that law may be. This is not a weakness of the constitution; this is the constitution. J. A. Griffith wisely said: “the constitution is no more and no less than what happens”, and an analysis of what happens demonstrates what those across the British empire knew hundreds of years ago: there is no law in the UK other than that of power.[35] This truth of the uncodified constitution of the UK is now laid bare. Far from weaknesses exposed since 2016, the nature of our constitution is now clear. The question we must find an answer to is what we will do about it. 

Priyansh Shah.

[1] Walter Bagehot, The English Constitution (Chapman & Hall 1867)

[2] Lord Hailsham, ‘Elective Dictatorship’, Richard Dimbleby Lecture 1976 

[3] The Case of Proclamations [1610] EWHC KB J22

[4] For an example, see the Illegal Migration Bill 2023. In particular, s.1ss3 and ss5, as well as the Human Rights Act s.19(b) declaration made on the front of bill that reveals the callousness with respect to rights.

[5] A. V. Dicey, Introduction to the Study of the Law of the Constitution (first published 1885, Macmillan 1915) 3

[6] Martin Loughlin, The British Constitution: A Very Short Introduction (OUP 2013) 15-17, 24-27

[7] Ibid, 6 and 27

[8] Ibid, 34

[9] Thomas Hobbes, Leviathan (first published 1651, Penguin 1985) Ch. 17

[10] Ibid, 5 and 107 

[11] Ronald Dworkin, ‘What Is the Rule of Law?’ [1970] The Antioch Review, 30(2), 151–155. 

[12] Lord Bingham, The Rule of Law (Penguin 2010)

[13] Ibid, 110

[14] R (Jackson) v Attorney General [2005] UKHL 56 at [102]

[15] Jackson, [107]

[16] House of Commons Parliament and Constitution Centre, The Separation of Powers (Standard Note: SN/PC/06053), 1

[17] Ibid, Bagehot and Hailsham 

[18] R (Miller) v The Prime Minister [2019] UKSC 41 (‘Miller II’)

[19] Abraham A, ‘Is Britain in a Constitutional Crisis and, If so, Is It Terminal?’ (The Justice Gap, 28 April 2021) <> accessed 12 June 2023

[20] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (‘Miller I’)

[21] Miller I [43] 

[22] European Union (Notification of Withdrawal) Act 2017

[23] Miller II

[24] THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for Scotland (Scotland) [2018] UKSC 64

[25] European Union (Withdrawal) Act 2018 Schedule 4 s.21ss2(b) 

[26] Ibid, Legal Continuity Bill Reference [98] – [125]

[27] Vernon Bogdanor “Asymmetric devolution: Toward a quasi-federal constitution.” Developments in British Politics 7 (2003): 222-41.

[28] James Hugh Allister and others v Secretary of State for Northern Ireland [2023] UKSC 5

[29] Ibid, 12 

[30] Ibid, 26. S.8 provides a good example of this.

[31] Coronavirus Act 2020, from which Schedule 22 is a good example.

[32] Lord Sumption, ‘Government by decree – Covid-19 and the Constitution’, Cambridge Freshfields Annual Law Lecture 2020

[33] Illegal Migration Bill, HL Bill Session 2022-2023 133 (as brought from the Commons)

[34] Powerful and unprecedented restrictions to the power of the Lords can be found in s.1 and s.2.

[35]  JAG Griffith, ‘The Political Constitution’ (1979) 42 MLR 19.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.