Assessing the Role of an Unwritten UK Constitution

  • 06 Pages
  • Published On: 21-11-2023

Introduction

A written and coded constitution brings uniformity and certainty in implementing laws. The UK does not have a written coded constitution. Does this mean that the UK Constitution is not able to bring uniformity and certainty?

This essay will assess the characteristics and capability of the unwritten UK constitution in regard to its function of bringing order in the legal system. The aim of this assessment is to determine whether the UK will benefit from a written constitution. This essay will explore the benefits as well the risks of having an unwritten and a written constitution in order to properly answer the question.

Whether the UK Constitution lacks the capability to deal with the organic growth of the country?

The UK Constitution has multiple sources of laws. It means it is not one authoritative document. The provisions of the UK Constitution are not codified. They have the same status as same status as ordinary laws. They are rooted to multiple sources and are flexible.

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In the hierarchy of the legal system, the Parliament is the sovereignty. It consolidates all the power. As such, the rule of law applies equally to all organs and individuals. Judicial review has lesser power. In consideration, the UK system follows a uniform and hierarchical structure. Any change in the legal system or legal order is subject to the power of the Parliament. As the rule of law applies equally to everyone and the court does not hold power over the Parliament, amendment of law or new legal reforms may be easier. This will make it easier to deal with new specific cases with the flexible approach towards amending or enacting new law to meet new circumstances.

It is also justifiable to raise the issue of whether the unwritten Constitution would be able to bring uniformity in implementing the rule of law when there are multiple sources of law and there is no judicial review of the law to determine sufficiency of the law. In this regard, it must be noted that any issues of constitutionality related to legislation must be addressed and there must be judicial review of every controversial or important statute. Self-realisation of the law is important in the constitutional interpretation of the statute. The UK Constitution is rooted to multiple sources. They may be the statutes, treaties, common Laws, conventions, or the court precedents. There are possibilities that they may come in conflict or set unclear principles. An issue may also arise from the UK Parliamentary sovereignty, which is the main feature of the UK legal system. As such any kind of codification may impact the functioning of the Parliament. This may bring rigidity against legal reforms, which may go against public demands.

To the question whether the UK should have a written constitution, it is not a new debate. The 1970s debate had that the constitution must be written as a remedy to perceived ills of body politic. In the 1990s, three draft constitutions by John MacDonald QC (1990), Tony Benn (1991) and the Institute for Public Policy (1991) were presented. In 2008 to 2010, call for a written constitution was made in the light of the disquiet on the part of the government over the way constitutional reform since 2001 was undertaken, and of the 2009 expenses scandal involving the MPs. Written constitution was argued to have the ability to bring forth a sovereign, secular and democratic state with power conferred by the people, and the supreme sovereign would lie with the Constitution and not with the Parliament. There would be separation of powers with more powers to the judiciary. There would be a federal structure based on clearer relationship between the regions. However, alternatively, the written constitution may exaggerate leading principles and fundamental rights. Amendments may be difficult and be too rigid for social change and new interests and demands. A written constitution may, thus, create a particular set of arrangement that may be inappropriate for future changes. The UK is a political constitution, which solves conflict through political process. Having a written constitution would displace this involving of political process in solving conflict.

The issues associated with written constitution could be demonstrated by citing German Constitution. It is a codified. There is executive federalism. The Constitution is the Basic law, which is to be strictly enforced. It would avoid uncertainty or ambiguity in addressing constitutional matters. The goal is certainty in implementing laws at the national and state level. Thus, codified, written constitution provides easier access to understand and comprehend laws. An ordinary person can identify the constitutional law to enforce their rights infringed. However, a coded law may not reflect on the practical issues. Every region or state may have varied issues. Having a written constitution may, thus, bring rigidity disabling the capacity to address varied issues. This is not the case of the unwritten UK constitution. The UK Constitution brings flexibility to adapt to new or specific circumstances allowing dynamic organic growth of the state. States have the freedom to create law suitable for the society. The principle of sovereignty, as such, gives the UK parliament the supreme authority, the supreme rule of law and the supreme law making capacity. As against the argument that a written constitution brings certainty, the unwritten Constitution and sovereign Parliament brings continuity. Legal sovereignty bears the characteristics of a legal system that is based on continuity of law making power guided by a set of rules that bridges between law makers. Thus, the new law makers will have access to set of rules. In UK context, such set of rules are in the unwritten Constitution, which is basically the established statutes, case laws, common law and other similar sources. The principle of sovereignty also secures the uniform application of the law over all the territories that the Parliament governs. This is the answer to the clarity aspect of a written constitution. Alternatively, being unwritten it may prove expensive and time consuming in case of bring new laws or reforms. A written constitution with a federal legal structure allows judicial review of any legislation in conflict of implementation. There will be no two different sources of law and addressing a conflict or contested legal provision could be address with a judicial review. Flexibility a characteristic of an unwritten constitution may bring serious weakness due to the absence of broad rules governing a structure of system, which will help judge the organs of the government. As a result, laws can make or unmake any laws without any restriction. It is argued that written constitutions are viewed as a restrain for unchecked political majoritarianism and on the government. They are viewed as a limiting device instead of being a form of democratic political expression.

In this light, in UK context in relevance to the question in hand, there must be considerations of factors relevant to producing a written constitution. The benefit must outweigh the risks of an unwritten constitution. The British constitution is in a written form in one form or another, whether statutory or common law. If all these written sources are to be collected in a single legal instrument, it would end up being a vast volume. It is argued that having a single authoritative document would produce a hazardous affair. Codifying may involve concealed changes to the Constitution. There may be practical difficulty in just codifying the pre-existing constitutional order. Such codification may change the constitutional. Have a written constitution would transfer power to the judiciary. This may in most of the occasion provide a wide discretion to the judges. Such discretion, which is in the current legal system consolidated in parliamentary sovereignty, will deprive the legislature of law making power. Alternative perspective to the question in hand is whether there is a good reason why Britain should not enact a constitution and join the other democracies that have written constitution. One of the reasons is that the UK has been in a protected legal system because of EU law. EU is a protected constitutional system, with rights and powers given by treaties, with principles of separation of powers. Brexit will deprive the protection of EU law. This will make the UK unprotected, which is the reason for a call for written constitution.

The need for a written constitution is seen in the 2017 Miller case. In Miller case, the Supreme Court held by 8 to 3 majority held that it is only the only Parliament that could authorise a notification under Treaty of the European Union, Article 50. Article 50 provides that a state can withdraw from the EU, complying with its own constitutional requirements by serving a notice of its intention. The government cannot use the prerogative power, which was used to enter into international treaties, to withdraw from the EU treaties. The court ruled that the European Communities Act 1972 gave effect to EU law as an independent source of domestic law. Thus, changes to such domestic law must be differentiated from changes to a domestic law arising from withdrawal. This is a fundamental change and it will require the Parliament’s approval. It is observed that the constitution is obscure. It is open textured. The Crown has the powers of the state. Such power could be diverse and contradictory interpretations of its identity. That is the reason why there is a call for a written constitution. The constitution makes judges the constituent power and is open to criticism in case of complicated and disputed political matters. The absence of a written constitution deprives the Supreme Court of institutional confidence in exercising its role and authority. Hence, its decisions may be portrayed as a just a technical applications of the law. It will not involve any active constitutional law-making. In this light, a written constitution may bring an integrated and coherent body of constitutional law. This will give the Supreme Court status in regard to its constitutional decision-making.

It is argued that informal codes of behaviour may not be the satisfactory ways of achieving good governance. However, the answer lies in reform and not in complete reconstruction. For example, Parliament occasionally restricts itself to comply with current demands, such as when the Human Rights Act 1998 mandatorily requires the Parliament to comply with the European Convention on Human Rights. Argument that a written constitution may bring clarity may be not correct too. For example, the South Africa’s 1996 Constitution entitles gives everyone to have a protected environment protected through the means of reasonable legislative measures, which could secure use of natural resources and ecologically sustainable development while at the same time promoting justifiable social and economic development. Such wording may provide wide interpretation with ambiguity. Further, if Parliamentary sovereignty is removed, then there would be another set of issues for determining constitutionality.

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Conclusion

UK Constitution has multiple sources of laws Parliament is the sovereignty and less judicial power. Its flexibility enables adaptation to new social and political demands at ease. However, the challenge lies in addressing issues of constitutionality without the process of judicial review. The debates from the 1970s, 1990s and 2000s are relevant with this issue. The argument for a written constitution lies in building a democratic society, with state power conferred by the people and the Constitutional law as a single document being the sovereign.

A written constitution may bring uniformity and clarity. However, the same could be true for unwritten constitution. The fact that the former may proved rigid to new current issue is an argument in itself favouring an unwritten constitution. The ability to adapt brings uniformity in governance and continuity of law making power. All the laws are written in one form or the others. The lack of judicial review may be a suitable for other democracies, but not for UK which political constitution, which solves conflict through political process. Codifying the constitution may prove unexpected changes in itself. It may not be able to bring clarity to specific cases like the way the multiple sources of law do now.

Books

Bogdanor V, Beyond Brexit: Towards a British Constitution (Bloomsbury Publishing 2019)

Cooper T, Need to Know: Edexcel A-level Politics (Hodder Education 2018).

Gordon M, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing 2015).

Kommers DP, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1997).

McConalogue J, The British Constitution Resettled: Parliamentary Sovereignty Before and After Brexit (Springer International Publishing 2019)

McGourlay C, English Legal System Concentrate: Law Revision and Study Guide (Oxford University Press 2020) Schneider JP, ‘Germany’ in Jean-Bernard Auby, Codification of Administrative Procedure (Bruylant 2013).

Taylor C, Law Express: Constitutional and Administrative Law (Pearson Education Limited 2014).

Turpin C and Adam Tomkins, British Government and the Constitution: Text and Materials (Cambridge University Press 2011)

Williams A, UK Government & Politics (Pearson Education 1998)

Journals

Barber NW, ‘Against a written constitution’ (2008) Public Law 11.

Blick A and Brice Dickson, ‘Why does the United Kingdom now need a written constitution?’ (2020) 71(1) Northern Ireland Legal Quarterly 59-71.

King J, ‘The Democratic Case for a Written Constitution’ (2019) 72(1) Current Legal Problems 1-36.

Payne S, ‘The Supreme Court and the Miller Case: More Reasons Why the UK Needs a Written Constitution’ (2018) 107(4) The Round Table 441-450.


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