The term “unwritten” is far too general to describe the nature of the British Constitution, however, “uncodified” is a better classification.
In agreement with the statement made by the House of Lords Select Committee on the Constitution, the British Constitution has a great deal of it in written form, as mentioned above. However, since not all the sources of the British Constitution are put into a sinle or series of ordered documents, the Constitution is termed “uncodified”.
A codified constitution, therefore, is simply where the most important constitutional rules have been put into such a document, giving them special recognition in some way, and an uncodified constitution is where a constitution of many and various sources has no such formal recognition.
However, since no state could write down all its constitutional rules (because many are conventions or social practices), some countries simply have not had an opportunity or have not felt the need to put the most important (and often the most basic) rules into a written document. Hence these types of constitutions being termed “uncodified” simply means that the constitutional rules have not been put into an order or hierarchy of importance and then pt into a legal document.
The British Constitution is made up from a variety of sources, both written and unwritten. Although the written sources (statutes, case law, EC law etc.) have not been put codified, or put into writing, the unwritten sources such as conventions, simply cannot be put into a writing as “constitutional rules” for many reasons, such as the implications of changing social attitudes- this means that conventions can change or disappear as easily as they can develop.
No constitution, whether written or unwritten, could work entirely by a set of clearly defined rules. A large part of the American Constitution, which is written and codified, is governed by political practices developed over time. The British constitution needs conventions because they bridge the gap between constitutional formality, or a codified constitution, and political and social reality. Whether written, unwritten, codified or uncodified, constitutions will share the same common features (to identify the principle function of the State and to define their functions and powers, also to define basic civil rights and freedoms). In order to make a constitution work, however, it must be considered within its own social and political context, and conventions allow constitutions the flexibility to adapt to changing circumstances.
A written constitution usually means that its contents are entrenched, and hence you have a rigid constitution. This means that written constitutions usually contain procedural and complex rules for the amendment of a constitution. Although the British Constitution has been called unwritten, this does not necessarily mean that it is easy to amend or repeal the “constitutional” statutes. In practice, as opposed to legal theory, it would be very difficult for Parliament to amend such statutes without the support or consent of the people. This further reinforces the point that whether a constitution is written or unwritten, or codified or uncodified, in essence, they are very similar.
In conclusion, the term “uncodified” is an apt description of the British Constitution because it simply refers to the formal framework (or lack of) structure of the constitution. This classification does not make such “unwritten” constitutions any different or less significant in its essence, since both written and unwritten constitutions essentially share the same features. The only difference in its nature, between one that is codified or written, and one that is unwritten and uncodified, is its flexibility. In 1885, Dicey described a flexible constitution as “one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body.” In this way, the American Constitution is rigid, or entrenched in its written form, yet the British Constitution is more flexible, largely due to its uncodified nature.
Therefore, in agreement with the title statement, the British Constitution is written in a variety of documents, and it has unwritten elements that even “written” constitutions cannot codify, such as constitutional conventions. The term “unwritten” is not a sufficient classification to define or describe the British Constitution, therefore it is a misleading term- “uncodified” is a far more specific and accurate term to use to describe the structure of the British Constitution.
ANNA LONG (T23)
