Is it time to adopt a written constitution?
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'For effective governance in the 21st century the United Kingdom requires a written constitution.' Constitutions perform three main tasks: they provide for the creation of the institutions of the State; they regulate the relations between those institutions and one another; and they regulate the relations between those institutions and the citizens they govern.1 Many believe that the United Kingdom's constitution is now outdated with an inherent lack of overall agreement between its statutes, common laws and conventions. The constitution is meant to be the main backbone on which power, control, order and authority are built upon and maintained by.2 Considering this, is it now therefore the time for the United Kingdom to adopt a written constitution in order to provide for effective interaction between these formal institutions and those of civil society in the 21st century? In this essay I will first of all differentiate and explain what is meant by the terms 'written' and 'unwritten' with respect to a constitution. I will then go on to determine the principal characteristics on which the present constitution of the United Kingdom is based and moreover, explore the arguments both for and against the adoption of a written constitution within the United Kingdom taking into consideration any possible advantages or disadvantages that may be apparent within these arguments. The somewhat misleading phrase, 'written constitution' really means 'codified constitution'. Thus, a written, or codified, constitution is one in which all the principal constitutional rules are written down in a single document named 'The Constitution'. An example of this type of constitution is to be found in the United States Constitution, with its major rules being codified and contained within its seven Articles with their subsequent amendments.3 In contrast, the constitution of the United Kingdom may be described as being uncodified in the sense that its constitutional rules and principles are located in a multitude of different sources which have not been brought together and codified.4 Although many of the rules of the United Kingdom's constitution may
These values in themselves promote both formal and substantive qualities.19 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.20 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.21 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.22 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.23 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.24 It must be stressed, however, that recent legislation has sought to address this issue with the introduction of The Constitutional Reform Act 2005.
1 Adam Tomkins, Public Law (2003) p.3. 2 <http://www.unlockdemocracy.org.uk> accessed 10th November 2008. 3 Adam Tomkins, Public Law (2003) p.7. 4Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.18. 5 Alex Carroll, Constitutional and Administrative Law (2007) p.16. 6Ibid. 7<http://www.ucl.ac.uk/constitution-unit/media/articles/2006/3110a.htm>accessed 12th November 2008. 8 Vernon Bogdanor et. al., Should Britain Have a Written Constitution? (2007) p.499. 9 Ibid. 10 E.C.S.Wade, Dicey, Introduction to the Law of the Constitution (1959) pp.39-40. See notepad jowell p.28. 11Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.168. 12 Ibid .p.30. 13 Sir John Laws, Constitutional Guarantees (2008) p.1. 14 Diarmuid F. O'Scannlain, Is a Written Constitution Necessary? (2005) p.795. 15 Rodney Brazier, The Constitution of the United Kingdom (1999) p.100. 16 Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p. 654. 17 Ibid. 18Alex Carroll, Constitutional and Administrative Law (2007) p.45. 19 Jeffrey Jowell, Dawn Oliver (eds.), The Changing Constitution (2007) pp.13-14. 20 Adam Tomkins, Public Law (2003) p.81. 21 Ian Loveland, Constitutional Law, Administrative Law and Human Rights (2006) p.71. 22 Alex Carroll, Constitutional and Administrative Law (2007) p.349. 23Kevin Harrison, Tony Boyd, The Changing Constitution (2006) p.69. 24Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.99. 25Alex Carroll, Constitutional and Administrative Law (2007) p.43. 26 N.W. Barber, Against a Written Constitution (2008) p.13. 27 Diarmuid F. O'Scannlain, Is a Written Constitution Necessary? (2005) p.795. 28 Ibid. p.796. 29 Ibid. 30 Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.67. 31 Ibid. p.68. 32 Adam Tomkins, Public Law (2003) p.49. 33 Alex Carroll, Constitutional and Administrative Law (2007) p.438. 34 Anthony Lester QC, Kate Beattie, 'Human Rights and the British Constitution' in Jeffrey Jowell, Dawn Oliver (eds.), The Changing Constitution (2007) p.68. 35 Mark Ryan, Unlocking Constitutional & Administrative Law (2007) p.513. 36 David Jenkins, From Unwritten to Written: Transformation in the British Common-Law Constitution (2003) p.951. 37 Mark Elliott, United Kingdom: Detention Without Trial and the "War on Terror" (2006). ?? ?? ?? ?? 1
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