Written and Unwritten, Codified and Uncodified

Conventions. Treated in the whole of topic 2.

Works of authority. Erskine May on parliamentary practice, Dicey, Bagehot. These are not law and are treated as evidence of what the practice is.

Does the absence of a code matter?

Three consequences follow, and they are what a comparative answer should say.

First, no hierarchy of laws, until the courts made one. In an uncodified system every Act has the same status, and a later Act impliedly repeals an earlier inconsistent one. That principle was modified in Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), where the Divisional Court held that there are classes of legislative provision which cannot be repealed by mere implication, and that the European Communities Act 1972 was a constitutional statute of that kind. Which statutes are constitutional is a question for the courts, "to which the scope and nature of Parliamentary sovereignty are ultimately confided".

Second, constitutional change by ordinary majority. The House of Lords Act 1999 removed most hereditary peers; the Constitutional Reform Act 2005 created a Supreme Court and reformed the office of Lord Chancellor; the Fixed-term Parliaments Act 2011 removed the prerogative of dissolution and the Dissolution and Calling of Parliament Act 2022 restored it. Each of these would be a constitutional amendment anywhere else.

Third, uncertainty. Nobody could say with confidence in 2019 whether the courts would review a prorogation. The answer came from R (Miller) v. The Prime Minister, [2019] UKSC 41, and it was not obvious in advance.

A worked example

A government wishes to abolish the second chamber of the legislature.

In the United Kingdom an Act of Parliament suffices, and if the House of Lords refuses to pass it, the Parliament Acts procedure can be used to pass it without them after the delay in section 2 of the 1911 Act as amended by the 1949 Act. There is no legal obstacle.

In Canada it cannot be done at all except by the unanimous consent procedure. In Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, the Supreme Court of Canada held that abolition falls under section 41, requiring resolutions of the Senate, the House of Commons and the legislative assembly of every province.

In India abolition of the Rajya Sabha would require an amendment under article 368 ratified by the legislatures of not less than one half of the States, because it would change article 80 and the representation of States in Parliament, and it would face a basic structure challenge on federalism.

The cases

Facts. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), [2003] QB 151, was a prosecution of market traders who sold goods in imperial units. They argued that the Weights and Measures Act 1985, being later, had impliedly repealed the European Communities Act 1972 so far as it required metric units.

Held, by Laws LJ and Crane J. The common law had created exceptions to the doctrine of implied repeal, "a doctrine which was always the common law's own creature". There are now classes or types of legislative provision which cannot be repealed by mere implication, and the European Communities Act is a constitutional statute of that class. Which statutes are constitutional is for the courts, to which the scope and nature of parliamentary sovereignty are ultimately confided.

Why it matters here. It shows an uncodified constitution growing a hierarchy of laws by judicial decision, which is precisely the work a codified constitution does by its own terms.

Facts. Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, was a reference by the Governor in Council asking whether Parliament could unilaterally introduce consultative elections for senators, impose term limits, and abolish the Senate.

Held, by the Court, unanimously. It could not. Part V of the Constitution Act 1982 provides four categories of amending procedure, of which the general one is the 7/50 procedure under section 38 complemented by section 42, requiring a substantial degree of consensus between Parliament and the provincial legislatures; the unanimous consent procedure under section 41 covers the listed matters, and abolition of the Senate falls within it.

Why it matters here. It is the exact opposite of the British position on the same question, and the pair makes the codified/uncodified distinction concrete rather than definitional.

Distinctions

What beginners get wrong

"The British constitution is unwritten." Say uncodified. If you must say unwritten, say at once that a great deal of it is in writing and give two statutes.

"Canada is uncodified like Britain." Canada is a defined set of enacted instruments, listed in section 52(2) of the Constitution Act 1982, with a supremacy clause and entrenched amending procedures. It is codified in more than one document, which is not the same thing.

"An uncodified constitution has no constitutional law." It has a great deal, and Miller No 1, Miller No 2, Jackson and Thoburn are four leading modern examples in fifteen years.

Limits and criticism

The distinction is one of degree. Israel has Basic Laws that are constitutional in force and were enacted separately over decades; New Zealand has a Constitution Act 1986 that is not entrenched.

Codification does not settle meaning. The American document is short and the disagreements about it are enormous.

Uncodified systems can be more rights-protective in practice than codified ones. The comparison must be with how a system behaves, not with its form.

Quick revision

1. Codified means one instrument of superior force; uncodified means dispersed. Written and unwritten are the older, inaccurate labels for the same distinction.
2. The British constitution: statutes, prerogative, common law, conventions, works of authority.
3. Bill of Rights 1689 article 9: freedom of speech and debates in Parliament not to be impeached or questioned in any court.
4. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin): constitutional statutes cannot be impliedly repealed.
5. Reference re Senate Reform, 2014 SCC 32: abolition of the Senate needs unanimous provincial consent under section 41.
6. Consequences of no code: no hierarchy of laws by default, change by ordinary majority, and uncertainty.
7. Canada is codified in several instruments, listed in section 52(2) of the Constitution Act 1982.

Test yourself

1. "The British constitution is unwritten." Correct the statement and justify the correction. It is uncodified, not unwritten. Magna Carta 1297, the Bill of Rights 1689, the Parliament Acts 1911 and 1949, the Human Rights Act 1998 and the Constitutional Reform Act 2005 are all written and all constitutional. What Britain lacks is a single instrument of superior legal force alterable only by a special procedure.

2. What did Thoburn change, and why is it significant for the classification? It held that constitutional statutes are immune from implied repeal, so an ordinary later Act does not displace them unless it says so expressly. That gives an uncodified constitution something a codified one has by definition, a hierarchy of laws, and it locates the power to decide which statutes are constitutional in the courts.

3. Compare the abolition of a second chamber in the United Kingdom, Canada and India. In the United Kingdom an ordinary Act suffices, and section 2 of the Parliament Act 1911 as amended even provides a route without the Lords' consent. In Canada abolition needs unanimous consent under section 41 of the Constitution Act 1982: Reference re Senate Reform. In India it needs an amendment under article 368 ratified by half the State legislatures, and would face a basic structure objection on federalism.

4. Name two things that are part of a codified constitution's working arrangements but appear nowhere in its text. In the United States, political parties and the President's cabinet, neither of which is mentioned in the 1787 document; the two-term limit was also purely conventional until the Twenty Second Amendment. In India, coalition formation and the position of the Leader of the Opposition are governed by practice and by ordinary law rather than by the Constitution.