To embrace a codified constitution would also impose great inflexibility upon the UK. Society is ever changing and consequently, as a response to these changes, the rules governing society need to evolve, thus, by cementing the rules by which a nation must follow by, would stall evolution. It can be said that constitutions can be codified and still be amended over time, however many codified constitutions are entrenched, making subsequent adjustments extremely hard or near impossible. The U.S.A, whose constitution is so strict that any proposed amendments to the constitution must receive a 2/3 majority supporting the proposal in both houses and then ¾ of the individual states must also agree to the amendment, allowing only 11 amendments have occurred since the 20th century, depicts that amendments would not be easy to put install. Why follow a route, which has such strict requirements when today’s constitution of the United Kingdom allows for easy modification? An example is given by the fact that before the Republic of Ireland could join the European Communities, a constititutional amendment had to be approved by the means of a referendum. This lengthy process was not effective in the United Kingdom, where, whilst the European Communities Act was debated by Parliament, it was still passed as easily as a usual act of parliament was. Some may say that this is a disadvantage, that it allows politicians to have too much power; acts can be repealed as easily as they are made and if Parliament chooses so, they may enact an Act, which could eradicate the constitutional principles of the U.K. Although, I believe that this is an improbable future event, Parliament members are representative of the United Kingdom and we have trust and faith in them to make the right decisions.
A practical reason as the U.K refraining from adopting a codified constitution would the realistic point that writing down a constitution is quite time consuming (The draft form of the Indian Constitution took over 2 years to finish) and not to mention difficult. Who would then have the right to decide what exactly would be the foundations of today’s nation? A large part of the English constitution is unwritten (e.g. conventions), so it would be a huge task to not just codify it but to find what should actually be codified. Resultantly, political disputes may perhaps arise when deciding upon which conventions should be included in the constitution, disputes which need not arise is the United Kingdom maintains the uncodified constitution that it has today.
As mentioned, a large sector of the United Kingdom’s constitution relies upon constitutional conventions. It might be argued that placing these conventional rules within a codified constitution would contribute to the clarity of the constitution and ensure that they are enforced, clearly separating the powers of the government and the governed, and securing the rules of England. However, as Sir Ivor Jennings states, “conventions are observed because of the political difficulties which arise if they are not”. This indicates that even if the U.K adopts a codified constitution, nothing much would be achieved. Repercussions are ingrained to those in power and these uncodified constitutional conventions are subsequently followed, so attempting to formally set down these rules would do nothing more than cause unnecessary political debates and achieve nothing than what is already in place.
Others have raised the point that by the U.K adopting a codified constitution, it would be a solid document full of clarity and coherence. However this may only be true to a certain extent. The question as to who would a codified constitution really benefit arises? If the U.K adopts a constitution which is the approximately the same length as the American Constitution, then yes it would prove beneficial to the citizens of the country, allowing them easy access to it, educating their minds and in effect be a, “People’s Constitution”, presumably easy to understand for the ordinary person. However, what about learned scholars, the lawyers for example, who wish to study the constitution in an in depth approach? Who decides which form of length the codified constitution should take, should it take after America and be relatively short or take after the likes of India for example, whose constitution runs hundreds of pages long? Whether a people’s constitution is adopted or a lawyer’s constitution, one sector of society will be at a disadvantage and to take that risk when the U.K is surviving without a codified consitution, seems unnecessary.
It can be said that the United Kingdom could benefit from a codified constitution, which doesn’t have to set down all the rules, but only the core values, such as the American Constitution. This would provide a basic framework for the country, without imposing stringent means concerning modifications and certain rules. If the European Convention of Human Rights had not been incorporated into U.K. domestic law via the Human Rights Act of 1998, then the above would be a strong argument, for every democratic nation needs core values and beliefs. Since the ECHR is in fact effective in the United Kingdom, there really is no need for a codified constitution in the U.K. Core beliefs and basic human rights are laid down in the convention, such as the right to life, expression and freedom from torture. These points are then supported by legislations passed by Parliament, so therefore the, ‘important’, sector of the U.K constitution is instilled in a written format in the U.K. Even if it may be disputed that the ECHR is integrated into domestic law via a normal Act of Parliament and not necessarily entrenched, it’s generally acknowledged that the ECHR is of important status, possessing as Professor Feldman states, possesses a “special status”, and political speaking, it won’t be intervened with by a further act by parliament. These basic foundations in the ECHR are therefore accountable enough to be a sufficient alternative to a codified constitution of the United Kingdom.
Parliamentary sovereignty is fundamental to the English legal system and adopting a constitution does away with it completely. Essentially, it denotes that Parliament can pass whatever law it feels it needs to pass. Elected members, acting on representation of the people of the United Kingdom, congregate and come to pass statutes, which are intended for the wellbeing of the nation. If a constitution is set down, this essential feature of the United Kingdom would no longer exist, the power of the nation to elect politicians and their decisions representing the nation would seem become insignificant compared to the ‘ultimate’ rules a codified constitution has established. Whilst the power of the nation would be shared between parliament and the judiciary if a codified constitution arises, the U.K prides itself on having representative elected members who are entrusted with modifying the constitution of the U.K on a incremental basis.
Even if the United Kingdom does not necessarily enjoy a formal written constitution, throughout the years, the constitution has gradually been built up. Because of this, the idea of a written official constitution is, “low on the political agenda”, due to the introduction of the Human Rights Act and documents such as the Ministerial Code and the Code of Conduct for MP’s. Therefore, many areas of the government are subject to written formalities. In this sense, the constitution is not as unwritten as it was in the past, the most important parts of the U.K Constitution are written down and in effect an official codified constitution doesn’t really seem of much importance in perspective of how England’s constitution is already.
I do not believe that written constitutions have no value, as they do. They provide at least some indication of what is supposed to happen and people who are ruled by the constitution may look towards it to see what they need to do in order to comply with the constitution. Whilst a codified constitution may provide indication, it will never be able to provide all the answers and the United Kingdom has achieved a working solution. Even if our constitution is not entirely codified, any gaps are filled by Acts of Parliament, common law, constitutional conventions and other constitutional sources, which have survived this long and will most probably survive into the future. Right now, there is no essential need for the United Kingdom to adopt a codified constitution; the U.K is fully working and efficient as it is, and as the saying goes, “if it isn’t broken, you shouldn’t fix it”. Furthermore in a sense, the U.K retains it’s individuality by adopting an efficient, uncodified constitution which has worked well for so many years and foreseeable future, will continue to work just as well.
HL Constitution Committee, First Report, 2002, Paragraph 20.
http://www.staff.amu.edu.pl/~wroblew/html/en_pr_konst.html
Lord Hailsham, The Dilemma of Democracy (London: Collins, 1978) pp.139-140.
Ryan, M. Unlocking Constitutional & Administrative Law (London: Hodder Arnold, 2007) p.14
Bradley AW, Ewing K D. Constitutional & Administrative Law (London: Pearson Education Ltd, 2007) p.39
Bogdanor V, Khaitan, T, Vogenauer, S. ‘Should Britain Have A Written Constitution?’ The Political Quarterly, vol 78, no 4
Bradley AW, Ewing K D. Constitutional & Administrative Law (London: Pearson Education Ltd, 2007) p.24
Bogdanor V, Khaitan, T, Vogenauer, S. ‘Should Britain Have A Written Constitution?’ The Political Quarterly, vol 78, no 4
Parpworth N. Constitutional & Administrative Law (Oxford: Oxford University Press, 2008) p.96
Parpworth N. Constitutional & Administrative Law (Oxford: Oxford University Press, 2008) p.98