Explainer
What Is a Codified Constitution?
01In plain terms
Three things define it
Written in one place
The core rules of government are collected in a single document that anyone can read.
Above ordinary law
Laws that conflict with the constitution can be challenged and set aside.
Hard to change
Amendments need a special procedure, not a simple majority on an ordinary day.
02Side by side
Codified constitutions and the UK system compared
| Codified constitution | United Kingdom today | |
|---|---|---|
| Where the rules are found | One constitutional document, plus any formal amendments | Statutes, court judgments, conventions and authoritative works |
| Highest legal authority | The constitution itself | Parliament, under the doctrine of parliamentary sovereignty |
| How the rules change | A special amendment procedure, often requiring a supermajority, a referendum, or both | An ordinary Act of Parliament, passed by simple majority |
| Role of the courts | Can set aside laws that conflict with the constitution | Cannot overturn Acts of Parliament; can issue declarations of incompatibility under the Human Rights Act 1998 |
| Protection of rights | Usually an entrenched bill of rights | Statutes such as the Human Rights Act 1998, which Parliament can amend or repeal |
| Source of authority | Usually the people, often confirmed by referendum or a constituent assembly | The Crown in Parliament |
03The UK today
A constitution in many places
The UK does have a constitution. It is simply uncodified. Its rules come from four main sources, and almost all of them can be changed by Parliament in the ordinary way.
- Statute law
- Acts of Parliament with constitutional effect. These include surviving clauses of Magna Carta, the Bill of Rights 1689, the Acts of Union, the Parliament Acts 1911 and 1949, the Human Rights Act 1998, the devolution Acts of 1998 and the Constitutional Reform Act 2005, which created the Supreme Court.
- Common law
- Principles developed by judges over centuries, including the rule of law and the limits of the royal prerogative.
- Conventions
- Political rules that are followed but not legally enforceable. For example, the monarch gives royal assent to bills passed by Parliament, and the Prime Minister is the person able to command the confidence of the House of Commons.
- Works of authority
- Texts treated as guides to the constitution, such as A. V. Dicey’s Introduction to the Study of the Law of the Constitution (1885) and Erskine May’s guide to parliamentary practice.
In 1976 the former Lord Chancellor, Lord Hailsham, used his BBC Dimbleby Lecture to warn that this arrangement amounted to an “elective dictatorship”, in which a government with a secure Commons majority faced few legal limits on what it could do.
04In context
The UK is the exception
Almost every democracy has a codified constitution. The UK, New Zealand and Israel are the examples most often cited of democracies without a single constitutional document.
- 1787
United States
The oldest written national constitution still in use. Amendments need two-thirds of Congress and ratification by three-quarters of the states.
- 1937
Ireland
Bunreacht na hÉireann was adopted by a vote of the people, and every amendment since has required a referendum.
- 1949
Germany
The Basic Law can be amended only by two-thirds of both legislative chambers, and its core principles cannot be amended at all.
- 1958
France
The Constitution of the Fifth Republic was approved by referendum and sets out the powers of the president, government and parliament.
05Anatomy
What a constitution usually contains
Constitutions vary widely in length and detail, but most cover the same ground. Each of these would be a decision for the people of the UK.
- 01Where sovereignty lies and where the constitution draws its authority
- 02The structure and powers of the legislature, the executive and the courts
- 03Fundamental rights and how they are protected
- 04How elections and referendums are run
- 05The relationship between national, devolved and local government
- 06Emergency powers and their limits
- 07How the constitution itself can be amended
06TSP’s proposal
Popular sovereignty
“We Aren’t “Restoring” Anything. We Are Building It for the First Time”
TSP, The Mission
TSP proposes a codified constitution, approved in a nationwide referendum and founded on popular sovereignty: the principle that political authority comes from the people. In the movement’s own words, the goal is “a codified constitution where the power belongs to the people.”
07The debate
The arguments on both sides
Codification is a serious change, and it has serious critics. Here are the arguments most often made, and how codified democracies have answered the concerns.
Arguments made for codification
Clarity
Citizens can read the rules that govern them in one place, rather than piecing them together from statute, case law and convention.
Limits that don’t depend on restraint
Power is constrained by law rather than by the self-discipline of whoever holds office.
Protection from temporary majorities
Rights and core rules cannot be removed by a single Act passed in a single session.
Legitimacy
A constitution approved by the people carries an authority no single Parliament can claim.
Concerns raised and how they are addressed
Flexibility
The UK system can adapt quickly. Codified systems respond by calibrating their amendment procedures so that change is demanding but not impossible.
The role of judges
Constitutional courts can strike down laws, which some see as shifting power to unelected judges. How judges are appointed and how far their powers reach are choices made in drafting.
Reaching agreement
Writing a constitution requires broad consensus. Other democracies have used constitutional conventions and citizens’ assemblies to build it.
Fixing today’s assumptions
A text written now may age. Most constitutions are amended over time, so the question is who gets to decide when.
Go deeper
See what’s at stake, issue by issue.