Consider the Arguments For and Against Having a Written Constitution.

This leads the examination to those countries which do have a written constitution. Even in countries such as the United States of America where there is a singular document labelled “The Constitution”, all elements of the constitution cannot be found here. Some aspects follow the pattern of the United Kingdom where they are documented separately in other governmental sources. This factor is significant when the characteristics of a constitution are examined. The constitution in the United Kingdom is a record of statements of basic rights which are entrenched. An unwritten document allows for more flexibility in administrating rules which adapt the rule of the constitution to adhere more to modern situations and circumstances.

A written constitution may serve to clarify any ambiguous common law, conventions and other distinctive undefined issues. An example is that the West Lothian question, where a protest was led that if Scottish MPs were still allowed to be representative in the legislation made for solely England and Wales is it fair that English and Welsh MPs were not permitted to input on any legislation founded for Scotland. A written constitution could be used to clarify such issues in such a way that they are too entrenched. However, it could be argued that conventions should rather be incorporated into a statute, as is usually the case, rather than being included into a written constitution. This would resist in invalidating elements of the sovereignty of the crown and parliament.

Local government’s status and authority could also be confirmed by a written constitution, the intention being that Thatcherite devolution of independence could not re-occur. The benefit of this would be that the citizens of the state could gain more authority on the constitution, as they would be required to vote by referendum on any change that would amend the written constitution. This would remove an arguably dictatorship power of Parliament replacing many subjective decisions, by a more objective, democratic system. In contrast K.C. Wheare comments that he feels that entrenchment could be undermined by some dominant groups if they were adamant that a written constitution should be altered. It could contrarily be viewed, however, that even a less severe notion to entrenchment, of making it extremely difficult to amend a written constitution, could still act as an infringement on “necessary adaptation of the constitution to social change”1, or unforeseen events. In effect as Sir Stephen Sedley remarks “consolidating state power wherever it happens at that moment to reside” in a written constitution may and inevitably will be blind and numb to the future and to evolution. Andrew Gamble supports this highlighting that a great benefit of having an unwritten constitution is in its “flexibility and pragmatism”.

A further deliberation is raised by Ian Holliday where he expresses concern that a “juridification of politics” may occur with a written constitution, due to the power which is entrusted in judges. A fear that judges may become involved with laissez-faire capitalism is highlighted in this sense. This is revealed in the United States of America case Lochner v New York [1905] where the supreme court ruled that a legislation which would place a sixty hours a week and ten hours a day limit to employees of bakeries as invalid as it violated the freedom to contract commanded by the Fourteenth Amendment to the Constitution. A written constitution in the United States of America has made their Supreme Court “the source of far-reaching judicial legislation” (Turpin 2002). Stephen Sedley expands on this line of thought by suggesting that the constitution “is whatever the judges say it is”. It has been suggested that judiciary of the United Kingdom may adopt a similar role if it were to avert to a written constitution. It may be concluded that with the incorporation of the Human Rights Act 1998 and the devolution legislation that the judiciary is already moving in this direction.

A written constitution would serve as a valuable and a non-debatable resource for the judiciary to determine that legislation passed is not in breach of the rules of the constitution. It would serve to dissolve any ambiguity that may exist within conventions and legislative matters, which removes any subjectiveness that would be applied in deciphering such cases. A constitutional confirmation on the role of the local government in the written constitution would also consolidate the local community, and provide security and faith developing the relationship between those who govern and those who are governed. This would be re-enforced by the doctrine of entrenchment, as any changes that were to occur in the powers of the local government would be protected and so would thus have to be voted by the public in the form of a referendum. However it has been reasonably argued that a written constitution would be detrimental to the flexibility that the British state can maintain due to its unwritten constitution, due to the doctrine of entrenchment. It can be regarded that with the current, recent incorporation of the Human Rights Act 1998 and the devolution legislation it is not necessary to have a singular written constitution. The British State is evolving in a way that protects public interest without the need for a written constitution. On balance the constitution does exist in an accessible written form. Thus, considering the arguments for and against, there does not appear to be any significant factor for a singular written constitution which outweighs the current system. This proposes that, disregarding the important impact that it may have on local government, a single document entitled “The Constitution” indicates more an issue of practicality rather than any other significant improvement on the civil and political liberties of the state.