The constitutional and legal
structure of the United Kingdom is a unique and historically layered framework
of governance, setting it apart from nations with codified constitutions and
unitary legal systems. The absence of a single, entrenched document and uniform
legal jurisdiction, and the coexistence of three distinct legal orders, England
and Wales, Scotland, and Northern Ireland, each with its own foundations,
institutional forms, and degrees of autonomy, create a distinctive asymmetry
that embodies shared sovereignty and enduring pluralism.
The constitutional settlement of
the United Kingdom is not a product of deliberate design, but a result of
centuries of evolution, negotiation, and pragmatic accommodation. The interplay
of common law traditions, parliamentary supremacy, and statutory innovation has
given birth to a system that is both flexible and precarious. The case of
Wales, which is legally bound to England in a single jurisdiction but has
progressively expanding devolved legislative powers, is a striking illustration
of this evolution.
At the apex of the United
Kingdom’s constitutional order stands the Supreme Court, serving as the final
appellate body in civil cases across the Union. Its limited reach in Scotland,
where criminal appeals remain within the exclusive jurisdiction of the High
Court of Justiciary, underscores the enduring asymmetry. These divergences are
not residual anomalies; they provide nationalist movements with tangible
evidence of difference and inequality, fueling demands for political change.
The uneasy coexistence of integration and autonomy generates a recurring
tension between unity and fragmentation.
Understanding this framework
requires more than institutional description. It demands an analysis of the
deeper tensions between continuity and disruption, stability and instability.
Brexit has sharpened these divisions by unsettling doctrines of sovereignty,
devolution, and judicial authority. Where adaptability was once seen as a strength,
it now risks being interpreted as incoherence. The United Kingdom’s
constitutional system should therefore be viewed not as a settled structure but
as a contested process shaped by historical compromise, theoretical ambiguity,
and intensifying centrifugal pressures.
Separate
Jurisdictions of the United Kingdom
The Union rests upon three
distinct jurisdictions, each embodying a unique constitutional tradition.
England and Wales operate within a common law system, where judicial precedent
and legislative supremacy prevail. Scotland retains a mixed system, influenced
by both civil and common law, preserving its distinct procedural traditions and
substantive rules. Northern Ireland, although similar to England, has been
profoundly shaped by its history of conflict and subsequent peace settlements.
This patchwork results in a Union that is neither fully centralised nor wholly
federal, embodying integration yet sustaining pluralism.
Wales, despite being formally
integrated with England, illustrates the growing complexity of devolution. The
Welsh Parliament now legislates widely in fields such as health, education, and
environmental policy, producing a distinct corpus of Welsh law. This expansion
of legislative powers has been a gradual process, with an increasing number of
responsibilities being devolved from the UK Parliament to the Welsh Parliament.
However, the absence of a separate judiciary limits the development of complete
jurisdictional autonomy. This intermediary status fosters a stronger Welsh
identity while simultaneously exposing constitutional inconsistency. The dual
character of integration and differentiation leaves questions of equality and
clarity unresolved.
Scotland represents the strongest
model of legal autonomy within the Union. The Scottish Parliament holds primary
legislative powers, while Scottish courts preserve distinctive procedures and
doctrines. The exclusive authority of the High Court of Justiciary over
criminal appeals illustrates this entrenched autonomy. This means that criminal
cases in Scotland are not subject to the jurisdiction of the Supreme Court of
the United Kingdom, further demonstrating Scotland’s legal independence. Yet
the jurisdiction of the Supreme Court in civil matters highlights the limits of
autonomy, provoking nationalist critiques of external interference. Legal
divergence, therefore, sustains political debates on sovereignty, with legal
distinctiveness serving as both heritage and aspiration.
Northern Ireland remains the most
fragile component of the Union’s legal mosaic. Its devolved institutions have
suffered repeated suspensions, reflecting political instability. The
constitutional consequences of Brexit have profoundly unsettled its legal
framework. The Northern Ireland Protocol and the Windsor Framework introduced a
regulatory border in the Irish Sea, creating unprecedented fragmentation of
sovereignty. These arrangements illustrate how law is continually reshaped by
political necessity. Fragility and compromise dominate, leaving Northern
Ireland’s legal order vulnerable to instability and contestation.
Parliamentary
Sovereignty and Its Contestation
Parliamentary sovereignty has
long been regarded as the keystone of the United Kingdom’s constitutional
order. Albert Venn Dicey (1835 – 1922) famously portrayed it as the
absolute authority of Parliament to enact or repeal any law. In reality,
however, this doctrine has always been subject to qualification. Devolution,
the Human Rights Act, and membership of the European Union all constrained
Westminster’s authority. Brexit, celebrated as a restoration of sovereignty,
paradoxically exposed its contradictions, transforming sovereignty from a
constitutional certainty into a contested principle.
The Miller cases (Gina Miller –
Article 50: Treaty on European Union – 2016) symbolised this shifting balance
of power. Miller (I) established that the executive could not trigger Article
50 without statutory authority, reaffirming the supremacy of Parliament. Miller
(II) declared prorogation unlawful, signalling the judiciary’s willingness to
enforce constitutional principles against the government. Critics saw judicial
overreach, but the rulings demonstrate how sovereignty is now negotiated
between Parliament, the executive, and the courts. The traditional absolutist
conception has thus evolved into a dynamic, contested equilibrium among
institutions.
Parliament’s own structure
intensifies these challenges. Executive dominance of the House of Commons
enables governments with solid majorities to control legislative output.
Although the House of Lords acts as a revising chamber, its limited legitimacy
curtails its influence. The result is a drift away from collective
parliamentary sovereignty towards executive dominance, where ministers exercise
disproportionate control over law-making. This concentration of authority
undermines accountability and dilutes the classical notion of sovereignty as a
collective safeguard of parliamentary sovereignty.
Recent legislation has
accelerated this transformation. The Retained EU Law (Revocation and Reform)
Act 2023 empowers ministers to alter or repeal large areas of retained law by
secondary instruments, bypassing detailed parliamentary scrutiny. This delegation
of power represents a shift from parliamentary supremacy to executive
discretion. In this evolving context, sovereignty no longer functions as a
stable constitutional anchor. Instead, it operates as a political slogan,
contested across institutions and increasingly detached from traditional legal
orthodoxy.
European
Law, Human Rights, and the Post-Brexit Settlement
Membership of the European Union
fundamentally challenged the orthodoxy of parliamentary sovereignty by
establishing the supremacy of EU law. The Factortame litigation illustrated
this vividly by obliging domestic courts to disapply national legislation incompatible
with European law. Brexit formally repealed these arrangements, but the problem
of supremacy persists. Retained EU law continues to generate uncertainty, with
courts divided between adherence to pre-Brexit precedent and a more assertively
domestic interpretation. Sovereignty remains unsettled even after withdrawal.
The Human Rights Act 1998 further
complicated the constitutional order by incorporating the European Convention
on Human Rights into domestic law. Parliament preserved its supremacy through
the device of declarations of incompatibility, but the Act nonetheless
empowered courts to reshape public policy. Proposals to replace the Act with a
British Bill of Rights reflect anxieties about sovereignty, judicial authority,
and the distribution of power in an uncodified constitution. These debates
reveal deep-seated uncertainty about the relationship between rights and
sovereignty.
In Northern Ireland, human rights
protections remain entrenched by the Good Friday Agreement, ensuring compliance
with the ECHR in perpetuity. Scotland has taken further steps by incorporating
international treaties, such as the UN Convention on the Rights of the Child,
into its domestic law. These developments reveal diverging approaches within
the Union, where rights protections differ across jurisdictions. The coherence
of constitutional safeguards is weakened as human rights become subject to
devolved differentiation and political contestation.
Brexit did not resolve the
sovereignty question but deepened its complexity. Freed from the formal
supremacy of EU law, the United Kingdom remains enmeshed in international
obligations, devolved divergence, and judicial oversight. Sovereignty has
become fragmented, no longer operating as a unifying principle but as a
contested and unstable doctrine. Far from restoring clarity, Brexit has left
the constitutional landscape more fractured and uncertain than at any point in
the modern era.
Comparative
Perspectives and Constitutional Theory
Placed in comparative context,
the constitutional structure of the United Kingdom appears increasingly
anomalous. Federal systems, such as those of Germany, Canada, or the United
States, provide codified divisions of power, entrenched rights, and mechanisms
for dispute resolution. The United Kingdom, by contrast, relies on political
conventions, flexible statutes, and unwritten understandings. While
adaptability was once considered a strength, Brexit exposed its fragility.
Ambiguity generated conflict, and reliance on convention proved inadequate in
managing profound political disagreements.
Constitutional pluralism offers a
valuable lens through which to interpret this system. Developed initially to
describe the coexistence of European and national legal orders, pluralism also
characterises internal constitutional relations within the United Kingdom.
Devolved legislatures and Westminster each claim competing authority without an
entrenched hierarchy. This arrangement permits multiple sources of legitimacy
but also breeds instability. In Scotland and Northern Ireland, such pluralism
directly fuels nationalist claims, turning theory into a constitutional
reality.
Comparisons with rule of law
crises in Europe reveal further vulnerabilities. In Hungary and Poland,
political interference in judicial independence has weakened constitutional
guarantees. The United Kingdom has avoided a similar authoritarian drift, yet
attacks on judges during the Miller litigation highlighted the fragility of
judicial authority in an uncodified system. Without entrenched safeguards,
judicial independence relies heavily on political restraint and public trust.
Such reliance raises questions about the resilience of the constitutional
order.
These comparative perspectives
underscore both the uniqueness and fragility of the British constitution. The
celebrated adaptability of the system increasingly appears as instability.
Without codification or entrenched principles, the risk of incoherence grows.
Other democracies provide models of codified federalism, entrenched rights, or
constitutional courts that could inspire reform. The United Kingdom now faces a
choice: whether to continue relying on pragmatism or to adopt codification as a
means of preserving legitimacy and stability.
Contemporary
Challenges and Prospects for Reform
The Union faces mounting
pressures that challenge its coherence. Devolution has unsettled unity, with
Scotland pressing for independence and debates over Irish reunification
intensifying. The asymmetrical distribution of devolved powers exacerbates
perceptions of inequality, leaving institutions vulnerable to criticism and
scrutiny. The Internal Market Act 2020, widely regarded as undermining devolved
authority, exemplifies how centralisation can appear dismissive of local
autonomy. Such measures intensify constitutional discord rather than resolving
it.
Judicial independence remains a
pressing concern. The political backlash against the judiciary following the
Miller cases revealed the vulnerability of courts in an uncodified system.
Although courts cautiously assert their constitutional role, their authority
ultimately depends on political self-restraint rather than entrenched
guarantees. This fragility has prompted renewed calls for codification to
safeguard judicial impartiality and to establish a more stable balance among
the branches of state.
Access to justice further
complicates the constitutional picture. Cuts to legal aid and the imposition of
higher court fees have restricted the enforceability of rights, undermining
equality before the law. The accelerated digitisation of courts during the
pandemic highlighted disparities in accessibility, particularly for
disadvantaged groups. For a constitutional system that claims legitimacy, guaranteeing
equitable access to justice is essential. Without such guarantees, the
principle of the rule of law is weakened in both theory and practice.
The debate over codification lies
at the heart of reform. Advocates argue that codification would entrench
rights, clarify the division of competences, and restrain executive dominance.
Opponents insist that flexibility has long been the system’s strength. Yet
Brexit has shown that ambiguity now generates instability rather than
accommodation. The United Kingdom, therefore, confronts a decisive moment.
Without meaningful reform, the centrifugal forces of devolution, executive
aggrandisement, and nationalist mobilisation may lead to disintegration.
Summary: The
Constitutional and Legal Order of the United Kingdom
The United Kingdom’s
constitutional and legal order is best understood as a contested framework
rather than a settled system. The absence of codification, reliance on
parliamentary sovereignty, and asymmetrical distribution of devolved power once
embodied pragmatic compromise. Today, these features generate instability,
fuelling political fragmentation and legal uncertainty. Devolution, judicial
assertiveness, and international obligations have reshaped Dicey’s classical doctrine into a
fractured and unsettled reality.
Brexit has intensified these
tensions rather than resolving them. Far from restoring clarity, it has
encouraged executive dominance, fragmented sovereignty, and the development of divergent
legal regimes across the Union. Constitutional arrangements now depend heavily
on political restraint and goodwill, exposing their vulnerability. The drift
towards executive sovereignty further unsettles the traditional balance between
Parliament and government.
Comparative perspectives
illustrate the growing weakness of the British model. Other democracies
entrench rights, codify powers, and institutionalise checks and balances. The
United Kingdom persists with an unwritten constitution, increasingly ill-suited
to a polarised political environment. Pluralism without codification risks
degenerating into incoherence, undermining legitimacy and fuelling nationalist
claims for secession.
The Union’s future depends on reconciling diversity with unity through meaningful reform. Codification, recalibration of devolution, and entrenchment of rights may no longer be optional but essential. The paradox of the British constitution, adaptive yet fragile, plural yet centralised, cannot endure indefinitely. The choice is stark: to embrace codification and entrenchment, or to risk disintegration. Codification, once dismissed as unnecessary, may now be the only viable means of preserving constitutional legitimacy and coherence in the twenty-first century.
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