There are many advantages if adopting a written constitution in the UK, and there are many pressure groups, political figures and ordinary people who believe that Britain should have one. Constitutions are supposed to be the fundamental social compacts by which authority and order are maintained, and so a written constitution would not only provide a rigid means of protecting the people from the power of the executive, but also prevent the power of the government from being centralised, which is presently a major criticism of the government.
As the UK has no written constitution it remains that our constitutional rules are flexible thus Britain’s constitution is ever changing. Without the constraint of a written constitution Britain has been able to keep up with the times and has a considerable capacity for adapting her old institutions to meet new requirements. The idea that the constitution of Britain is shaped by the government of the day gives rise to the most pressing debate used by those arguing in favour of a written constitution. Parliamentary sovereignty is one of the principle characteristics on which the constitution of the United Kingdom is based on. The meaning of the term is best explained by A.V. dicey who said: “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 in theory Parliament can pass any legislation or law that is chooses. The adaptability of uncodified constitutions is not always beneficial. Within the British constitution some conventions have proved to be so adaptable that they can be reshaped to the convenience of the government of the day. The modern constitution as a virtual ‘elected dictatorship’ tempered only by public opinion, group pressures and the prospect of the next election means that the government can act in any way they wish and are even capable of increasing their own power. This is in contrast to most other nations. For example in United States they are legally limited by their formal codified constitution which means they cannot pass any law that they choose. This indicates that a fully codified written constitution would be unable to keep up with the times, ultimately rendering it obsolete. This therefore means that within the United Kingdom there is no such things as constitutional guarantees due to the fact that no legislation is given any special status whether it be deemed to be constitutional or not. In any state with a written constitution the constitution is superior to the legislature and it confers and distributes the legislative power. The document would give constitutional guarantees as the executive would have to honour them. Therefore the document may be seen as a way of restricting or restraining the powers of parliament of the executive as the document would be legally entrenched which could be seen as one advantage of adopting a written constitution in the UK.[]
However, this may also be seen as being a disadvantage as a written constitution is extremely difficult near enough impossible to amend or change. The definition of flexibility is that codified constitutions are inflexible and entrenched in a higher law and uncodified constitutions are flexible and adaptable. The US constitution has had twenty six amendments, ten of which were introduced in the first two years of its existence. In the US the written constitution is the ultimate authority which means even their congress does not have the power to alter it without going through the formal process and procedures of amending the constitution that requires the ascent of two thirds of both houses of congress and three quarters of the stated. Where as in the UK the fact that our constitution is “unwritten” means that parliament can basically pass any law it chooses. Therefore the constitution is far more flexible and more advantageous as it means the laws of the state will be able to adapt more quickly to social needs. The British Parliament is subject to no authority beyond itself and this goes against the principle of the rule of law which our democracy is based on. The rule of law is generally understood as a tool of political morality which looks at the role of law in securing the correct balance of rights and powers between individuals and the state in free 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 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. [] Which can be seen as an advantage of adopting a written constitution.
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 executive has granted, or which are recognised by the courts as existing at common law. This could be seen as a disadvantage of adopting a written constitution although does the judicial review within the UK actually go far enough in acting as a restraint on powers and therefore protecting the citizen? Judicial review represents one of the principals “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; therefore limiting the separation of powers within the UK. The creation of the Constitutional reform Act 2005 is said to have been brought in to achieve a more distinct separation of powers, by the creation of a supreme court within the UK; in the process the Lord Chancellor was removed from the judicial process. The creation of the Supreme Court shows that at the moment our judiciary is relatively weak in its ability to act as a check against parliament. A written constitution would increase its power.
On other hand written constitutions are ruled upon by judges. In Britain our judges are unelected and it is therefore undemocratic to take power away from our elected representatives and give it to judges who tend to be quite reactionary .If Britain adopts a written constitution like America the question then arises as to whether to continue to follow the steps of the US and deem the UK’s supreme court as the final expositor of the constitution’s meaning. It would mean that if the any of our people or our elected representatives in parliament 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. []
One major function of a constitution written or otherwise, 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 UK. 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 the individual and the state. Which acts as one of the UK’s constitutional rules therefore this is a disadvantage of adopting a written constitution as it clearly shows we may not have our constitution rules in one single document but they does exist.
Although Parliament still remains Supreme in the United Kingdom and could technically repeal this legislation at any time, we might better protect by the incorporation of these within a written constitution; where it cannot be repealed or amended like the ordinary statute law by a simple majority in parliament. Therefore embodying four essential safeguards for the people: The protection of the human rights, limits upon the legislative and executive power of the crown and parliament; The protection of regional and local government and the establishment of an independent judiciary. Therefore a written constitution would be advantageous when trying to protect fundamental rights of the people against the government. []
In conclusion, a written constitution can be seen to be a far more advantageous way of setting out and clarifying the rules and regulations of a state, but is only appropriate at the right time and in the right circumstances. Most people in Britain don’t even know what a constitution is and although some may argue that a public insight into politics may be achieved by the adoption of a constitution many would oppose this happening. Britain’s present successful judicial system and democratic parliament has remained stable and has had a responsible government for years. Why risk detriment to the Country if the form of the constitution does not necessarily play a part in its effectiveness.
Bibliography.
- Constitutional Conventions – The values and forms of political accountability – Geoffrey Marshall 1984 pg 1
-
Parpworth Constitutional and administrative law 6th edition pg 4 2010
- How near is a written Constitution – Rodney Brazier. N.I.L.Q. 2001
- Adam Tomkins Public Law 2003 pg 8
- The case for a Bill of Rights Geoffrey Robertson. The independent . June 1 2010
6. The big Question: Why doesn’t the UK have a written constitution. Nigel Morris. 14 feb 2008 independent
7. A.V. Dicey Introduction to the study of the law of the constitution 10th edition 1959 g 12
9. John alder, constitutional and administrative law 7th edition 2009
10. ] Lord Scarman “ Why Britain Needs a Written Constitution” (1992)
[] Constitutional Conventions – The values and forms of political accountability – Geoffrey Marshall 1984 pg 1
[] Parpworth Constitutional and administrative law 6th edition pg 4 2010
[] How near is a written Constitution – Rodney Brzier. N.I.L.Q. 2001
[] Adam Tomkins Public Law 2003 pg 8
[] The case for a Bill of Rights Geoffrey Robertson. The independent . June 1 2010
[] The big Question: Why doesn’t the UK have a written constitution. Nigel Morris. 14 feb 2008 independent
[]Parpworth constitutional + administrative law 6th edition pg 15
[ ] A.V. Dicey Introduction to the study of the law of the constitution 10th edition 1959 g 12
[9] N Parpworth Constitutional and administrative law 6th edition pg 22
[] Hilaire Barnett. Constitutional & administrative law 8th edition (2011)
[11] John alder, constitutional and administrative law 7th edition 2009
[] Lord Scarman “ Why Britain Needs a Written Constitution” (1992)
[] N Parpworth Constitutional and administrative law 6th edition
[] Lord Scarman “ Why Britain Needs a Written Constitution” (1992)
