Disadvantages Of An Unwritten Constitution

The UK constitution, although uncodified, is unwritten. This essay will critically assess whether the UK would benefit from a written constitution considering problems with the constitution today. The merits and defects of the current unwritten constitution will be examined, for example devolution and the separation of powers.

An unwritten constitution relies on a combination of sources to establish a system of government, including written and unwritten, legal and non-legal sources. Although a written constitution has all the constitutional information in one place, which means there is less chance of conflict when all the information comes from one source, in being unwritten the UK constitution is flexible, as opposed to written constitutions

As stated by Montesquieu , “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu’s belief about the appropriate separation of the powers is arguably unobtainable; Geoffrey Marshall criticised the doctrine as “infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds”. Though mostly separate, the legislative, executive, and judicial powers cannot be completely separated as they need to check and limit the power of the others. As stated by James Madison, the powers cannot be “kept totally separate and distinct”. As the UK’s constitution does not wholly comply with the separation of powers, this gives the constitution much of its flexibility as this can allow the constitution to change with the times. The doctrine of separation of powers in the UK is not absolute, as the functions of the judicial, legislative and executive powers often overlap. For example, much of the law making is performed by the executive powers through delegated legislation, and judges also develop the law. It is essential that the bodies of power interact to ensure an efficient system of government, though there is a system of checks and balances so that they do not encroach on the other. According to Madison, the legislative, executive, and judiciary powers should be “so far connected and blended, as to give each a constitutional control over the others.” In this way it could be said that the separation of powers in an unwritten constitution are ambiguous. However, there is evidence that the separation of