Against Codifying the UK's Constitutional Arrangements

In light of the statement above, the arguments for and against codifying the UK’s constitution will be set out in the following essay and especially considering the arguments with regards to codification and the impact of it on the Rule of Law, Parliamentary Sovereignty, Judicial Review and the Human Rights of UK citizens. Colin Turpin suggests that the constitution is ‘A body of rules, conventions and practices which regulate or qualify the organisation and operation of government in the United Kingdom’ [1] . As well as this deSmith’s classic introductory text regards the constitution as a ‘central, but not the sole feature, of the rules regulating the system of government’ [2] .

The UK is often referred to as having an unwritten constitution which could be said is seen misleading and untrue. Unlike Britain, the USA’s constitution is a written constitution with its major rules being codified and contained within seven articles with their subsequent amendments [ [3] ]. The statement above indicates that the UK constitution is not worth the paper it is not written, The United Kingdom happens to be one of three countries in the world to have an unwritten constitution, the other two being Israel and New Zealand. Unwritten constitutions draw on a variety of sources, In the UK the unwritten constitution is made up of statutes, EU Law, Common Law, prerogative powers and conventions, which is how it has evolved over the years. The statement indicates that the constitution is not worth the paper it is not written on, however it fails to identify the fact the UK constitution may function well from the many papers it is written and through the process it has evolved.

The evolutionary nature of the UK constitution means that it is relatively easy to add new constitutional laws and adapt to changing times. However one of the flaws is that it isn’t as easy to access as a single written document. Without the constraint of a written constitution Britain has been able to keep up with the times and has a considerable capacity for adapting their old institutions to meet new requirements. Britain has had a long and continuous national history and the origin of constitutional practice dates back to the Saxon kings who ruled England before the Norman conquest of 1066. There has been a long tradition of strong central rule dating back to the Tudors, and since the upheavals of the 17th century constitutional development has been largely peaceful and evolutionary.

One of the most important and repeated arguments put forward against the adoption of a written constitution in the United Kingdom is that “If it isn’t broke, then don’t fix it”. [4] Any attempts to improve on a system that already works is pointless and may even be detrimental as it was said by Professor barber that: “Britain’s constitution has, by and large been a success. It has produced stable government and –in terms democracy, transparency, human right and the provision of social welfare.[ [5] ] The UK’s constitutional rules have worked and served us well for hundreds of years, therefore whether the adoption of a written constitution is needed is still debateable.

One of the main reasons a country usually acquires a written constitution is as a result of a certain political event E.g. like the revolution that occurred In the United States in 1787, or France in 1789. Constitutions may also be a result of acquiring independence from colonial rule like Canada in 1867.The present constitution may contain many sources, but it is undeniable that Britain has had a successful judicial system and a democratic Parliament. Despite it working or running differently to a country with a written constitution such as America, it certainly is not less prosperous and flourishing than the US constitution, nor could it be said to be worth much less.

Generally, it is seen that the British people are opposed to radical change, and many people have shown outrage over devolution, the abolition of hereditary peers, and the Human Rights Act, The results of the May 2011 Referendum for the proposed change of the current FPTB System has supported the view the people of Britain are opposed to radical change, and there could not be anything more radical than introducing a written constitution into Britain. A 19th century American judge put the point of resistance to change in the UK in a judgement he made, “England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour.” [6]

One of the disadvantages of introducing a written constitution into Britain is that the supposed inflexible and rigid nature of written constitutions of other countries is often open to amendments when laws are out dated, the idea of making amendments when necessary would hardly be any different to the present constitutional system. Parliament can change or add to our ‘constitution’ when the electorate votes for change without the need of going through a lengthy procedure like the US, where the written constitution is the ultimate authority which means even their congress does not have the power to alter it without going through the formal process and procedures of amending the constitution, which requires the ascent of two thirds of both houses of congress and three quarters of the states.

The idea that the constitution of Britain is shaped by the government of the time gives rise to the most pressing debate used by those arguing in favour of a written constitution. Parliamentary sovereignty is one of the principle characteristics on which the constitution of the United Kingdom is based on. The meaning of the term is best explained by A.V. dicey who said: “The principle of parliamentary sovereignty means neither more nor less than this, namely, that parliament [defined as the queen, the House of Lords, and the House of Commons, acting together] …. has, under the English constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law as having a right to override or set aside the legislation of parliament”[ [7] ]

Therefore in theory Parliament can pass any legislation or law that is chooses. This means that parliament is not bound by its predecessors and therefore cannot bind its successors. It is the claim to be the ultimate political authority, subject to no higher power and able to make and enforce political decisions without having to seek permission from any other body, this enables laws to be created or changed relatively easily, but could also be seen as a lack of security as it overrides the general principal of the rule of law.

The Rule of Law is understood as a tool of political morality which looks at the role of law in securing the correct balance of rights and powers between individuals and the state in free civilised societies [ [8] ]. The rule of law contains the values of legality, certainty, consistency, accountability, due process and access to justice. These Values in themselves promote both formal and substantive qualities. They provide that the executive may do nothing without clear legal authority permitting its actions. It is therefore self-evident that for the rule of law to be effective as a check on the executive, the courts must be able and willing to police rigorously the boundaries of the executive’s statutory authority, [ [9] ] the values of the Rule of Law were shown to be successfully upheld in the case of Entick v Carrington [10] , where it was found that the Defendants could not point to any legislation in which parliament had authorised the Home Secretary to grant a warrant against Mr. Entick. Despite such legislation existing in the past, but no longer being in force, [11] Nor did there seem to be any common law precedent which made this government activity lawful. [12]

One of the major function of a constitution written or otherwise, in any democratic society is to protect the basic fundamental rights of the individual from unnecessary encroachment by the state. Lord Scarman was able to put forward an argument which criticizes the current constitution by saying,‘Today our written constitution is not ‘unwritten’ but hidden and difficult to find…barely known to the public…the citizen lacks a constitution which he can read and understand and which enables him, if need be, to claim a right which he can enforce’. This is seen as an implication of the Rule of Law set out by A.V. Dicey. A written constitution will allow citizens to appeal to the courts with a written document to back up their claims; a codified document is a point of reference and the public will be able to read and understand our constitution a considerable amount more than they do presently. A written or codified constitution could be taught in schools; this would not only increase their insight into politics but also encourage them to respect the laws included in the constitution.

The Human Rights Act 1998 includes many of the provisions of the European Convention on Human Rights into the domestic law of the UK due to the concept of direct applicability. The HRA has been able to give the judiciary the role of acting as a guardian of individual rights and it has given judges a more specific and firm legal basis on which to measure the correct balance of power and rights between the individual and the state. This acts as one of the UK’s constitutional rules therefore this may been as a reason not to adopt a written constitution as it clearly shows we may not have our constitution rules in one single document but they do exist.

The problem then lies with the idea of parliamentary sovereignty and the idea that the govt is not bound by previous governments. This technically gives a new government to revoke an act at any time. It is therefore seen that the incorporation of Human Rights into a written constitution not only upholds the Rule of Law but also gives citizens the security and knowledge that their rights are entrenched in a single document. It can be therefore said that entrenchment of the constitution would be advantageous when trying to protect fundamental rights of the people against the government. [ [13] ]

Parliamentary sovereignty is slowly diminishing in Britain, and a written constitution would not only decrease Government sovereignty to avoid a form of ‘elective dictatorship’ but also increase sovereignty of the electorate and the judicial system. Presently, if the Government want to modify or add to the unwritten constitution, they can do it simply by passing an Act; this may suggest that we have an elective dictatorship in theory where the Government exercises a predominant influence over Britain. An inflexible, rigid written constitution would evolve more power into the people and the courts and disperse the sovereign powers of decision-making and patronage of the Executive. In any state with a written constitution the constitution is superior to the legislature and it confers and distributes the legislative power. The document would give constitutional guarantees as the executive would have to honour them. Therefore the document may be seen as a way of restricting or restraining the powers of parliament of the executive as the document would be legally entrenched which could be seen as one advantage of adopting a written constitution in the UK.[ [14] ]

The UK does not have judicial review of primary legislation, so any bills passed through parliament by the government are not previewed and cannot be declared unconstitutional before hand as they are in America. The modern form of judicial review is designed to uphold a certain interpretation of the rule of law, with its function being to ensure that executive bodies remain within the limits of the powers that the executive has granted, or which are recognised by the courts as existing at common law. Judicial review represents one of the principals “checks and balances” developed by the constitution to guard against the abuse of power. Its effectiveness and credibility depends on the existence of an independent and impartial judiciary [ [15] ]. From a constitutional perspective, judicial review has frequently brought the judiciary into conflict with the executive and raises the question of the supposed independence of the judiciary; therefore limiting the separation of powers within the UK.

The Constitutional reform Act 2005 is said to have been brought in to achieve a more distinct separation of powers, by the creation of a supreme court within the UK. The creation of the Supreme Court is said to show that prior to the Supreme Court our judiciary is relatively weak in its ability to act as a check against parliament. A written constitution would increase its power setting out the different branches of government with different functions in order to ensure that the checks and balances by different branches of government are effective.

On other hand written, the general idea is that constitutions are ruled upon by judges, this would mean that citizens would rely on unelected judges in Britain and taking power away from our elected representatives. If Britain adopts a written constitution like America the question then arises as to whether to continue to follow the steps of the US and deem the UK’s Supreme Court as the final expositor of the constitution’s meaning. It would mean that if any elected representatives in parliament disagree with the Supreme Court’s construction of a constitutional right, they are powerless to alter that judicial interpretation, unless they successfully adopt a constitutional amendment. [ [16] ]

In conclusion, a written constitution is indeed a revolutionary way of setting out and clarifying the rules and regulations of a state, but this is only appropriate in the right circumstances. Even the most narrowly-detailed written constitution cannot include every single feature or process of a political system; also most unwritten constitutions include at least some statute law or other written provisions.

Although it is seen that an unwritten constitution is flexible, the dangers posed with a constitution like Britain’s where it is not written down in one document lies in the fact that there is no entrenchment to certain rights, and whether a constitution is set out on many papers or one the fundamental issue would be the need for statutory protection of Human Rights and any other right a citizen should enjoy and therefore in conclusion it could be said, why risk detriment to the Country if the form of the constitution does not necessarily play a part in its effectiveness. The success of Britain’s present successful judicial system and democratic parliament, and the fact that it has remained stable and has had a responsible government for years means Britain’s Constitution is not worth the paper it isn’t written on, but is worth the many papers it is set on.