Is it time to adopt a written constitution?

“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament [defined as the Queen, the House of Lords, and the House of Commons, acting together]…has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.”

Therefore, Parliament can, in law, pass any primary legislation that it chooses. This necessarily means that it can also pass any law which alters, whether incrementally or radically, the nature of the United Kingdom’s uncodified constitution.  This feature is the foundation of, and underpins, the constitution of the United Kingdom.  This is in contrast to the vast majority of all other constitutions.  For example, the legislature of the United States (Congress) or the Republic of Ireland (the Oireachtas) cannot pass any law that they choose.  Instead they are legally limited by their formal codified documentary constitutions.

This therefore means that within the United Kingdom there is no such thing as constitutional guarantees due to the fact that no legislation is given any special status whether it be deemed to be constitutional or not.  Notice that this is quite unproblematic in the United States with a written or codified constitution, a sovereign text. The text is logically prior to the legislature. It confers and distributes the legislative power. If it enshrines constitutional guarantees, the legislature will honour them. It must do so if it is to honour the constitution. The text, not the Parliament, is sovereign.  This may be seen as a method of restraining the powers of Parliament and the Executive as these provisions are legally entrenched and as one advantage of having a written constitution.

However, this may also be seen as being a disadvantage as a written constitution, by its very nature, is extremely difficult or near impossible to adapt and change.  In the United States, the constitution is the supreme law of the land and Congress lacks the authority to alter it without undertaking the arduous process of amending the Constitution through a procedure that requires the assent of two thirds of both Houses of Congress and three quarters of the States.  By contrast, the United Kingdom, having an uncodified constitution, together with the fact that its main characteristic is that Parliament can pass any law that it chooses, may be described as being very flexible in nature and therefore, more advantageous in being able to adapt more quickly to social needs.

The introduction of devolution is a prime example of the flexibility of the constitution of the United Kingdom.  A written constitution may well have impeded this process and so would build on the argument for the retention of our unwritten constitution.  Referenda were held in Scotland, Wales and Northern Ireland prior to the creation of the devolved institutions for these regions.  These referenda, however, were not strictly necessary in order to pass the relevant legislation.  But the critical constitutional point will remain that those new institutions will owe their authority and, indeed, their existence to the Parliament of the United Kingdom as it still continues to be a unitary state.  It established them; it could, as a matter of law, amend or take away their powers at any time through ordinary legislation; it could, legally, abolish any of those institutions at any time.

This degree of flexibility may also be seen to be in some way counterproductive and so develop the argument for the adoption of a much more rigid written constitution.  The past few years have been punctuated by the successive passage of legislation designed to counter terrorism.  These Acts have cumulatively increased the power of the State to interfere with the rights of the individual with the public policy intention of combating terrorism.  This can be clearly seen by the introduction of The Terrorist Act 2006.  Amongst other things, this Act extended the length of time that terrorist suspects could be held from fourteen to twenty eight days.  Although a government has a responsibility to take steps to protect individuals from terrorism, this does not justify encroaching on individual rights and freedoms.  This runs the risk of alienating individuals and in fact threatens the values which we should be striving as a society to protect.

Another central pillar on which the constitution of the United Kingdom is based is the doctrine of the ‘Rule of Law’.  This is neither a rule nor a law.  It is now generally understood as a doctrine of political morality which concentrates on the role of law in securing the correct balance of rights and powers between individuals and the state in free and civilised

societies.  The Rule of Law contains the values of legality, certainty, consistency, accountability, due process and access to justice.  These values in themselves promote both formal and substantive qualities.  They provide that the executive may do nothing without clear legal authority first permitting its actions.  It is therefore self-evident that for the Rule of Law to be effective as a check on the executive, the courts must be able and willing to police rigorously the boundaries of the executive’s statutory authority. 

Because Parliament is sovereign, however, it would seem that in theory Parliament can if it wishes ‘contract out’ of the common law principles which allow the court to regulate government activities. This is where the doctrine of judicial review comes to the forefront.  Broadly stated, the modern form of judicial review is designed to uphold a certain interpretation of the rule of law, with its function being to ensure that executive bodies remain within the limits of the powers that the legislature has granted, or which are recognised by the courts as existing at common law.  However, does the concept of judicial review, within the United Kingdom, go far enough in acting as a restraint on powers and, therefore protecting the citizen?

Judicial review may be understood as an expression of, and as being underpinned by, the doctrine of the separation of powers.  It represents one of the principal ‘checks and balances’ developed by the constitution to guard against the abuse of power.  Its effectiveness and credibility depends on the existence of an independent and impartial judiciary.  From a constitutional perspective, judicial review has frequently brought the judiciary into conflict with the executive and raises the question of the supposed independence of the judiciary.  Within the United Kingdom there exists a somewhat limited existence of this separation of powers.  

The House of Lords has both legislative and judicial functions by acting as the second legislative chamber and as the highest domestic court of appeal.  It must be stressed, however, that recent legislation has sought to address this issue with the introduction of The Constitutional Reform Act 2005.  The primary purpose of the Act was to achieve a more distinct separation of functions and personnel between the legislature and the judiciary.  This has been done by providing for the creation of a Supreme Court of the United Kingdom, to replace the Appellate Committee of the House of Lords, and by removing the Lord Chancellor from the judicial process.  Would this be better served with the adoption of a written constitution clearly outlining the different branches of government as in the American model where the Constitution clearly distributes the power and functions of the three principal organs of the state?

Supporters of increased judicial power often remind us of Lord Hailsham's description of the United Kingdom as an “elected dictatorship”.  Not only does Parliament possess, it is claimed, legally unchecked power, it is an illusion to think that the exercise of this power is blessed with the sanctity of democracy. True political power lies in the hands of the executive, who then dominate a supine Parliament. We need then a written constitution in order to rebalance the constitution, empowering the judges to provide checks and balances against a supposedly sovereign Parliament.  This balance of power between the legislative and judicial branches is quite clearly shown in the United States Constitution.  In the United States, the Supreme Court is the final expositor of the Constitution’s meaning.  Contrary interpretations of the Constitution must yield in the face of the Supreme Court’s pronouncements.  If the people, and their elected representatives in Congress, disagree with the Supreme Court’s construction of a constitutional right, they are powerless to alter that judicial interpretation, unless they successfully adopt a constitutional amendment.

By endorsing a written constitution that incorporates the American mode of judicial review, however, the United Kingdom Parliament could potentially cede its supremacy to the courts by transferring to the judiciary the power to issue authoritative constitutional pronouncements.  However, this may be seen to have already happened, somewhat, by the United Kingdom’s membership of the European Community.  In considering whether to adopt a written constitution, the people of the United Kingdom may want to consider carefully whether such judicial primacy can be reconciled with the country’s political values and legal traditions.  The power that any written constitution may grant to the judiciary is subject to abuse when wielded by activist judges who engage in result-orientated adjudication.

As previously mentioned, the constitution of the United Kingdom is also largely based on established conventions.  A constitutional convention may be described as being those traditions or conventions which supplement the legal rules of the constitution.  Their purpose is to ensure that the constitution can develop and adapt to ever changing contemporary principles and values.  Constitutional conventions affect the main institutions and individuals in our constitution.  As political rules, constitutional conventions are considered by those bound by them to be a constitutional and political obligation.  One such established convention is that of ministerial responsibility to Parliament.  The doctrine provides that all Ministers are both collectively and individually responsible to Parliament and means that they must give account to Parliament for, and be responsible for, the development and operation of government policy, administration and expenditure.  This device enables Parliament to perform its constitutional function of holding the government accountable for their actions.  This clearly shows that there already exists, within the unwritten constitution of the United Kingdom, a method of checks and balances which somewhat restrains the power of the executive.  The existing constitution also contains one periodic check, the necessity of a general election within a period fixed by law, where the executive will be held accountable as a whole by the electorate.

One major function of a constitution, in any democratic society, is to protect the basic fundamental rights of the individual from unnecessary encroachment by the state.  The Human Rights Act 1998 incorporated most of the provisions of the European Convention on Human Rights into the domestic law of the United Kingdom.  The Act inevitably enhances the role of the judiciary as guardian of individual rights and gives judges a more specific and firm legal basis on which to measure the correct balance of power and rights between individual and the state.  It is a constitutionally holistic measure, in the sense that each branch of government - the legislature and executive, as well as the judiciary – is called upon to use its public powers compatibly with Convention rights.  Under section 4 of the Act courts are allowed to declare both primary and secondary legislation incompatible with the substantive rights of the European Convention if it cannot be read and given effect in a way that is compatible with Convention rights.  Therefore, the Human Rights Act’s allowing a declaration of incompatibility may be interpreted as Parliament’s recognition of shifting norms in the United Kingdom away from the doctrine of parliamentary sovereignty in favour of judicial review of primary legislation. 

However, as Parliament still remains supreme in the United Kingdom and could technically repeal this legislation at any time, we might be better protected by the incorporation of these rights within a written constitution.  This would enshrine the judiciary’s role as guardian of fundamental rights and render them constitutionally secure, rather than, as at present, subject to the whims of a sovereign legislature.  This might also have the added benefit of making both the rights and responsibilities of the individual more clear and understandable.

Should the United Kingdom now adopt a written constitution in order to provide for more effective governance?  In this essay I have outlined the characteristics of the current constitutional principles within the United Kingdom and assessed as to whether or not they are an adequate means of regulating the relations between the state and the individual.  There are logical arguments both for and against the adoption of a written constitution within the United Kingdom and both advantages and disadvantages.  The present unwritten constitution has served the United Kingdom relatively well for some considerable time.  It may have some defects, but all constitutions whether written or unwritten will, according to different views, have defects.  The adaptability of the present constitution may be seen as its great strength as it can be easily reformed to meet specific social issues, but on the other hand this may be seen as a weakness.  The current constitutional arrangements do not seem to be broken and so do not require repairing.  There has been a great amount of constitutional reform taking place since the election of a Labour Government in 1997 and this process should be allowed to further evolve.  One more important consideration must be made if the United Kingdom were ever to contemplate the introduction of a written constitution – who would decide upon the content of such an important document?                

 

   

 

     

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