Arguments For and Against the UK Having a Written Constitution

Codification of the ‘British Constitution’ would enable it to better meet contemporary challenges.

Introduction

Constitutions are the foundations for virtually every nation in the world. To put it simply, it is a system of rules that establish the structure of the state and the principles by which it operates. In other words, they simultaneously create, empower, and limit the institutions that govern society[1]. Different from many countries, the British constitution cannot be found in one single document, rather its made up of a variety of legal and non legal sources which is one of its most distinguishing features. This approach has stood the test of time, but with the world now changing faster than ever and problems that face the UK getting ever more complicated, it is argued that codifying the constitution would better serve the UK in resolving these issues. Hence, this essay will show why the UK should not adopt a codified constitution in light of the contemporary challenges. Points that will be discussed are the reasons not adopting codification, minority government, conventions, parliamentary sovereignty, brexit and devolution.

Arguments Against Benefits of Codification

One of the arguments in favour of codification of the UK constitution is that it collects all of the rules into a set of documents, thus making the rules easily understandable, protected with entrenchments and it clear up the confusion of what is included in the constitution. This would allow them to be more easily enforced. “However, it can be argued that The United Kingdom has an evolutionary system of government that adapts smoothly to changing social and political conditions, whereas a written constitution entrenching its institutions and rules would be less flexible and difficult to amend to deal with the complex situations and also a danger that it might fossilise and become out of date.”[2]

Secondly, many would argue that a codified constitution would make the rules clearer and that it would increase the power of the courts as it is codified as law. Although that it might be true, but the adoption of a codified constitution might affect the democratic rule in the UK and might also lead to judicial tyranny. The reason is that judges would be the ones policing the constitution and the interpretation of the constitution can be affected by the personal preference and values of judges. Furthermore, they are not elected and not socially representative of society with that they are “diminishing” the idea of democratic rule in the UK as they are taking power away from elected representatives in the House of commons.

The third point to be argued that a written constitution constrains government in ways that an unwritten constitution does not. “The government is subject to it, whereas with an unwritten constitution it is the constitution which is subject to the government; the government can choose to alter it or interpret it in ways that suits itself. A written constitution is therefore an important safeguard against abuses by government of their powers, not least because it would entrench civil liberties and the due processes of law.”[3] However it can be argues that a written constitution is not a proper safeguard. A written constitution is no real form of protection to those trying to seek political domination. Aside from ill govern countries one only has to look at what took place in Germany in the thirties to where despite everything being adhered to, “the Nuremberg law”[4] overcame constitutional protections. Hence, a written constitution could be turned into an aid of an obsessive politician.[5]

“Unlike most modern states, Britain does not have a codified constitution but an unwritten one formed of Acts of Parliament, court judgements and conventions”[6] making it somewhat unclear to most ordinary citizens. This can be argued to be an advantage, as an individual can be better protected against an dictatorial government by being able to “duck and weave between varying parts of all of the above rather than having to challenge utilising the content of what is in subsumed into one all-embracing document.”[7]

Lastly, “if it aint broken don’t fix it”.This concept can be applied to support not codifying the UK constitution as the production of a written constitution is a seriously demanding exercise as a more detailed selection of a tenured judiciary would be needed coupled with complex decisions in the context of a new legislature and a re-examination of the role and makeup of the executive. Furthermore, without a “constitutional moment” such as events giving rise to the constitution of the United States in 1783 it would be hard to achieve it out of the vacuum.[8]

Minority Government

As mentioned above, the benefits of having a constitution that is not codified is that it provides flexibility to adapt and solve complex problems in the ever changing world we live in today. To amend the constitution to adapt to changes of society would be easier if the constitution is not codified due to the reason that it will only require a simple majority rather than that of a codified constitution which will require a super majority of more than two thirds of votes. Hence, not codifying the constitution will benefit the UK current situation more in the short run as the government now in power is a minority government formed through a “confidence and supply agreement” between the conservative and DUP. A minority government is a government formed by a political party that does not have an overall majority of MPs in the House of Commons [9] and that a “confidence and supply agreement” for the current government is a agreement is where the DUP agree to back the Conservatives in key votes – such as a Budget and a confidence motion – but are not tied into supporting them on other measures.[10] With a minority government in power and having a codified constitution could pose more problems rather than solve them because the amendments made might not be able to gain enough votes from the house of commons to get through due to not enough votes agreeing with the amendment. This could be due to within the minority government itself some members views might not be in line views of the majority even with “whipping”. Worst to worst this could even lead to a break up of the current agreement formed between the parties, which leads  to stagnation of the whole government.Also, a written constitution containing any substantive reforms would cause disruption to the normal workings of government, and a series of direct and consequential changes in the revised procedures across all branches of state.[11]

Constitution conventions

As mentioned, the UK constitutions are made up of a variety of sources, Constitutional convention are one of them. According to Dicey that conventions are defined as:“understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power… are not in reality laws at all since they are not enforced by the courts”[12], while the functions of conventions can be explained by Lord Wilson,as he notes that they“regulate relations between the different parts of our Constitution and the exercise of power”[13]. Also, The main point of a convention is that they are expected to be followed but not unconditionally.[14] Furthermore, not codifying conventions again provides the flexibility that it can not be followed by the government when there is a need in doing so and no legal consequences for this. An example of this is when Lord Widgery noted that: “whatever the limits of the convention…there is no obligation enforceable at law to prevent the publication of Cabinet papers, except in extreme cases where national security is involved.”[15] In this case a constitutional convention was applied but ignored; as a consequence we do not know how they will apply when put to the test or whether they can be morally justified.[16] Hence, to codify the conventions that are unreasonable and not practical would inflict more problems for the government as the court would have no choice but to apply them.[17]

Parliamentary sovereignty

Codification of the constitution also reveals one of the major problems with codification which is Parliamentary sovereignty. Parliamentary sovereignty provides that no one can question the validity of an Act of Parliament and no Parliament can bind another.[18] Most countries that posses a codified constitution, the constitution is protected politically and judicially , with the former through entrenchments and the later through a Constitutional court.[19] Hence, under this doctrine parliament is supreme and sovereign which means that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.[20] Consequently, it can be argued that with entrenchments in place , the current government can make law that in the future the succeeding government cannot undo and must follow, causing the principle of parliamentary sovereignty to not exist. Hence,a codified Constitution would therefore diminish the doctrine of parliamentary sovereignty[21] and the ability to make changes or to create laws in times of need. In addition to this, it is often argues that a constitution that is not codified will not have  sufficient checks and balances executives to prevent a elective dictatorship, this is a misconception. As there are considerable pressures on ministers making the implementation of controversial new measures or policies very difficult.[22] These pressures come from the Opposition party, intra-party dissent from the government’s own backbench Members in the House of Commons, the scrutiny procedures and cross-examination of the departmental select committees, the ability of the House of Lords to postpone and hold up legislation of which it disapproves and Scottish, Welsh or Northern Ireland regional governments, as well as the glare of a critical mass media and the need to court public opinion to avoid the threat of being voted out of office at the next general election.[23]

Brexit and Devolution

After the 31 March 2019, the UK would have officially left the European Union. After Brexit there are roughly about 12000 EU regulations that need and 7900 statutory instruments that need to be amended to be in line with national law[24]. Again if UK has a codified constitution, entrenchments will be in place to safeguard it. This could be a problem it is decided to include all the legislations, as it would require a majority of more than two third of the votes of house of commons to pass. The reason is that Brexit has the caused cabinet of the current government to be divided in this crucial time.[25] Furthermore, the flexibility provided by not codifying the constitution  also preserves the democratic image of the UK as it enacts the will of the people.

With Westminster having devolved its power to each of the legislations, a codified constitution would not beneficial in the current political climate. Although a codified constitution might be more democratic to devolved legislatures as it enables them to keep hold of their administrative power . that might be true, but it can be argued that with the current political climate not having a codified constitution would provide the government to have more control over the devolved legislatures as it can retract power from devolved legislations when it wants to .This could be beneficial if the government wants to stop the Scottish parliament

[1] ‘What Is A Constitution?’ (Ucl.ac.uk, 2018) accessed 9 January 2018.

[2] ‘House Of Commons – A New Magna Carta? – Political And Constitutional Reform’ (Publications.parliament.uk, 2018) accessed 21 January 2018.

[3] ‘Why The UK Needs A Written Constitution’ (politics.co.uk, 2018) accessed 19 January 2018.

[4] ‘The Nuremberg Laws’ (National Archives, 2018) accessed 19 January 2018.

[5]AnthonyHolland Lseacuk, ‘Those Who Say “The Status Quo Is Not An Option” Need Evidence That the Alternative Would Be Better’ (Constitution UK, 30 September 2013) accessed 18 January 2

[6] ‘Britain’s Unwritten Constitution’ (The British Library, 2018) accessed 20 January 2018.

[7] Ibid n5

[8] Ibid n5

[9] ‘Minority Government – Glossary Page’ (UK Parliament, 2018) accessed 18 January 2018.

[10] ‘May And DUP Deal: What You Need To Know’ (BBC News, 2018) accessed 18 January 2018.

[11] Ibid n2

[12] Barbwe N.W. , Law and Constitutional Conventions, 2009

[13] Lord Wilson of Dinton, The robustness of  conventions in a time of modernization and change, 2004, p. 407-409

[14] (Humanities.manchester.ac.uk, 2018) accessed 10 January 2018.

[15] Ibid

[16] Institute for Public Policy Research, A written constitution for the United Kingdom, (Mansell, London, 1993), 214.

[17] Marshall, Conventions, (n 2), 217.

[18] Madgwick P. and Woodhouse D. , The law and Politics of the Constitution of the United Kingdom,1995, p.35

[19] ‘Constitutional Conventions And Codification | King’s Student Law Review’ (Blogs.kcl.ac.uk, 2018) accessed 10 January 2018.

[20] ‘House Of Commons – European Scrutiny Committee – Written Evidence’ (Publications.parliament.uk, 2018) accessed 10 January 2018.

[21]Dicey AV, Introduction to the Study of the Law of the Constitution (1885), 10th ed, 1959, London: Macmilla , page 39

[22] Ibid n2

[23] ‘BBC News | Talking Politics | Checks And Balances’ (News.bbc.co.uk, 2018) accessed 21 January 2018.

[24] ‘Legislating For The United Kingdom’S Withdrawal From The European Union – GOV.UK’ (Gov.uk, 2018) accessed 20 January 2018.

[25] Daniel Boffey, ‘EU ‘Cannot Rely On UK To Stick To Brexit Deal’ Because Of Cabinet Divisions’ (the Guardian, 2018) accessed 20 January 2018.