Pros and Cons of a Written Constitution in the UK

The debate around whether or not the UK should have a written constitution is not new. In this context, this essay will highlight a few important aspects covering arguments against and in favour of having a written constitution.

The UK Constitution is not a written constitution subject to multiple sources, including the statutes, common laws, conventions, or treaties. If it is in a written form, it can bring more uniformity and certainty in the implementation of laws. Further, having multiple sources may bring conflicts amongst principles arising from different sources. However, it can also be argued that a coded form of law may not cover issues arising from demands of a changing society. A uniform code of law cannot meet the different demands of different regions. This discredits the argument for a written constitution which is likely a rigid approach towards a variety of cases.

The UK Constitution confers in the Parliament the sovereign and consolidated power. Law applies equally to all persons and institutions. The court has little permitted judicial review power. This does not represent a sovereign and democratic state where the Constitution is subservient to the Parliament. A written Constitution can have the reverse effect of transferring sovereignty with the Constitution and separating power between the government, legislature and the judiciary, which can have more judicial review power. This represents a federal structure with defined structure between the states making it possible to allow judicial review of a controversial legislation, regulation or executive actions. At the same time, it cannot be denied that the present uniform and hierarchical structure with equal application of the rule of law enables quicker, easier and economical legal amendments and reforms to address new challenging issues.

The advantage of an unwritten Constitution lies in the fact that there are multiple sources of the provisions allowing flexibility in addressing a legal conflict or an issue. Making it a written Constitution will inflate leading legal principles and bring a rigid set of arrangements not suitable for legal reforms. The hierarchy in the current system enables a political process in regard to resolving a conflict. This will be disrupted once the Constitution is in written form.

The flexibility in an unwritten Constitution cannot be found in a written constitution, which will restrict states’ freedom to bring laws suitable for local needs. Thus, so far, it has allowed the organic growth of different jurisdictions by addressing challenging and specific needs. However, this also allows absence of any checks and balances on the ruling party. The Parliament is under the influence of the House of Commons through which the governing political party influences the Parliament. This means that law making can be influenced by the politicians. This further indicates that there are higher chances of unchecked political majoritarianism and highhandedness of the government. The particular characteristics of flexibility attached to an unwritten Constitution may allow the government to make laws or change laws based on its political interest. Further, the lack of sufficient judicial review power adds to this problem.

Based on an administrative perspective, will one still think the UK Constitution is an unwritten Constitution when the rules are found in the established case laws, common law, statutes, and such other sources. Lawmakers, citizens and institutions have access to the rules found in these sources. Having a written form of Constitution will be a voluminous strenuous and expensive affair. Along with that, the Constitution would be too voluminous for an ordinary person to grasp. Further, how would somebody codify the large volumes of rules that are already found in the multiple sources? There would be the risk of missing valuable principles, creating confusion, or unforeseeable changes in the Constitution.

If the argument against unwritten Constitution is unchecked political power, a written constitution will also increase the power of the judiciary. The power of extensive judicial review will also lead to restraint on legislative reforms and political changes needed to meet new specific social challenges.

If the argument against unwritten Constitution is lack of uniformity, a written form will bring rigidity that will lack ability to meet diverse local needs.

If the argument against unwritten Constitution is separation of powers, the hierarchical form of governance in an unwritten Constitution brings swifter law reforms and resolution of conflicts.

To conclude, flexibility in the current form, which is the unwritten Constitution, may be the best approach for now. The arguments against an unwritten form of Constitution or favouring a written Constitution are not enough to justify disrupting the flexibility in the current legal framework.

Reflection

It is always helpful to have diverse aspects on a particular topic, such as the current one. Such diverse understanding is achieved by looking at views and opinions from different people. The group discussion did that for me.