However though UK does not have clear indications as to the separation of powers and overlaps between the state organs do take place, they are able to check and balance each other and thus this helps prevent the abuse of powers, which can be argued that a written constitution does not help prevent abuse of powers by having a clear separation of powers.
The use of conventions
Conventions in the UK are used to govern important constitutional areas like the ‘collective ministerial responsibility’. This convention states that once a cabinet decision has been reached, the Cabinet must stick to it collectively. If a minister disagrees, s/he must resign from his position. The ministerial responsibility doctrine also states that once Parliament’s support is withdrawn, ministers cannot continue to support and fresh mandate is needed. Ministers disagreed when John Major used the whip for the Maastricht Treaty to vote and expected to be obeyed. However, he was defeated on the Treaty vote and there was a waiver of collective responsibility. This waiver shows the flexibility of the convention.
Written constitution does not eliminate the reliance on conventions. In the US case of Madison v Marbury, the Supreme Court’s power to strike down legislation, which is incompatible with the constitution as a convention. This power is not found in the constitution, but was acknowledged in a judicial decision and has since became a constitutional practice. Thus this upholds Sir Ivor Jennings stance on conventions where ‘they provide the flesh, which clothes the dry bones of law.’
The flexibility of rules
The UK’s constitution is flexible and all legal rules are made through the ordinary legal manner and is not safeguarded with entrenchment unlike the unwritten constitution.
Singapore adopts a written constitution and a gay couple challenged the constitutionality of the Penal Code, which criminalized sexual relations between homosexual couples. The Penal Code being drafted in 1965 was inconsistent with the views of modern society and this can be seen as a problem with written constitutions. Their rules are rigid and cannot change with the modernization of society and ever-changing political and economic background.
Laws in UK can be easily changed and this could be easily done by a simple majority from the votes of parliament members. However it could be just as simply repealed. In A and Others v Secretary of State for Home Office, the courts in the UK were pressured to declare the Anti- Terrorism, Crime and Security Act 2001 and its provisions allowing indefinite detention as incompatible with the human rights of claimants. However this declaration of incompatibility did not affect the continuing validity of the statute.
In contrast, in the US case of Grisworld v Connecticut, the Supreme Court was able to expand the rights contained in the US Consitution’s Bill of Rights to encompass the right to marital privacy. This enabled the judges to nullify Connecticut’s 1879’s law, which banned the use of contraceptives, as unconstitutional.
Thus it can be seen that written constitutions are prone to stagnancy while a five yearlt constituted Parliament like the UK’s is far more dynamic and more up to date with modern society.
Conclusion
If the UK were to adopt a written constitution, it would need major reforms. Through the UK has been through many major political events, the British never experienced a revolution or declaration of independence to have reduced their constitution into a written one. As mentioned by Sir Ivor Jennings, ‘The British Consitution has not been made but grown,’ which shows that the constitution is flexible and is based on continuous development.
In N.W Barber’s article, ‘Against a written constitution,’ it was stated that UK’s unwritten constitution works ‘passably well’ and US’ written constitution have had ‘little choice.’ This shows that it is not what type of constitution is being used but how the state is being governed.
Thus in conclusion, be it a unwritten or written constitution, there will be adavantages and disadvantages, but if a constitutional can protect human rights, has good governance, which safeguards national interests, economic needs and ensures there is no abuse of power or corruption is a good constitution. Hence, it is more important how the state governs its citizens and how individual rights are governed.