ABSTRACT
The UK’s constitution is obscure and open textured. The powers of the state are vested in the Crown, which is subject to diverse and contradictory interpretations of its identity. The obscurity of the UK constitution is dysfunctional and needs to be reformed by way of a written constitution. The shortcomings of the UK’s unwritten common law constitution is illustrated in the Supreme Court’s majority judgment in the 2017 Miller case (R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5). The common law constitution makes the judges the constituent power and especially vulnerable to criticism when dealing with intensely disputed political matters. In the absence of a written constitution the Supreme Court may lack institutional confidence in its role and authority and seek to portray its decisions as merely technical applications of the law rather than assertions of creative and active constitutional law-making. A written constitution would be an opportunity to design an integrated and coherent body of constitutional law, transform the Supreme Court’s status and improve the clarity of its constitutional decision-making.
