In the US, it is stated in the constitution that the Supreme Court is sovereign. Since the constitution is unwritten, Britain’s parliament is sovereign as it can choose to pass whichever law it feels is suitable. Compared to the other nations, there are very few legal limitations, which can be referred in the case of Jackson 2005 and War Damage Act 1965 (Burmah Oil v Lord Advocate) although this is done retrospectively. This happens to be one of the reasons to move towards the codification of the constitution. Others believe that even with a written constitution there still can be parliamentary sovereignty, where as you see in the Section 18 of the European Union Act 2011 in the constitution stating that nothing can overrule an act of parliament’s decision. Also, it will be hard to codify the current constitution with the parliament being sovereign. After 1969, there had been an increasing number of proposals to codify the proposals. Some of the people who proposed for the codification intended to devolve the government and are hopeful to amend the amendment procedures and to ensure rights and so on. Besides that, some have argued for a codification is because that a law is easily passed by the same procedure even if it has been argued in length. It should by right be accepted by the referendum of the people. Also, it is believed that there is no clear separation of powers exercised by the two institutions, the executive and the legislature. As there is an absence of a single written document, the extent of powers of these institutions is rather vague. This may create tension and worry among the society and other bodies. This describes Lord Hailsham’s idea of ‘elective dictatorship’. Other than that, it is noted that many institutions derive their power from the political government and not from the actual law. Moreover, with a written constitution, the people’s rights are clearer and this extinguishes the fear of not knowing their rights. The Human Rights Act 1998 only offers partial protection but if it is in the constitution, it clears the air and there is more certainty in identifying the rights of the people. With the HRA existing in the constitution it can easily express repeal but since the parliament is sovereign, it can’t express repeal(Vauxhall’s case). In May 2006, it was reported that a group of afghan hijackers said they were desperate to be allowed to work and contribute to UK society. They also apologized about the flight they hijacked to Stansted in 2000. The High Court had granted permission to stay however, Tony Blair did not. He said that it was an ‘abuse of common sense’. (BBC News UK, 2006)[6]
Lord Woolf had mentioned that, “growing encroachment by the government on judicial independence is a warning that judges may need a written constitution to protect them from further political reference”. This happens to be one of the reasons to codify the constitution. Judges and the Courts are not seen to be supreme compared to the parliament and its decision is not binding. This diminishes the role and purpose of the courts. Lord Alexander states that the European Courts of Human Rights should be contained in the constitution as well to avoid trouble of going all the way to Strasbourg which occupies money and time. With a written constitution, the society would be able to identify their rights easily and not having to go through the hassle of collecting several documents to learn their rights. Lastly, many things are left to be understood and learnt about conventions and so on.
The problems of having a “codified constitution in the United Kingdom
However, there are some problems the current government may have to deal with when codifying its constitution. It would not be a piece of cake that is for sure. It is rather a complex process and may cause heated never-ending debates about the constitutional changes first of all. It might not even reach the goal of codifying the constitution. In July 2007, The Prime Minister Gordon Brown delivered a speech which for the first time hinted that a current government might consider codifying the constitution or at least some aspects of it () He said “Today, we have to ensure that our country remains cohesive, confident society in dealing with the challenges of the 21st century. Previous sections of this document have discussed the need to provide a clearer articulation of British values, and greater clarity about the nature of British citizenship. But there is now a growing recognition of the need to clarify not just what it means to be British, but what it means to be the United Kingdom. This might in time lead to a concordat between the Executive and Parliament or a written constitution.”[7]
Jack Straw in a lecture, ‘ Modernizing the Magna Carta’ (delivered to George Washington University( USA) held that the government might be interested to soon codify the constitution but then in an interview on BBC , he mentioned the clear problem which is that the codification process would definitely take up to 20 years. This does not seem a realistic dream. Professor Robert Hazell, of the University College London Constitution Unit, felt that it is impossible that Britain would ever have a codified constitution. Professor Hazell stated , “Constitutions don’t get written in cold blood…Written constitutions typically follow defeat in war, a revolution, independence or the collapse of the previous system of government…None of those fates is likely to befall the UK. So however desirable it may be, a written constitution isn’t going to happen”. ().[8]
Moreover to enact a codified constitution would also impose a greater inflexibility to the UK, since the societies are ever changing, the rules governing the society need to evolve by stamping the rules by which the people must follow and this would definitely cause a big problem, hence it can be argued that constitution can still goes under the amendment over the time if they codified, however many codified constitutions are entrenched making subsequent adjustment and its terribly hard and this really needs greater time as an example the USA constitution are one of the rigid or strict one that any of their proposed amendments to the constitution must receive 2/3 majority supporting the proposal in both houses and ¾ of the individuals states must also agree to the amendment, [9]therefore these amendment would not be easy to put install. Let’s look upon the facts of Malaysian Constitution, according to constitutional scholar Shad Saleem Faruqi,” the constitution has been amended 42 times over 48 years of independence as of 2005 were made each time, he estimates the true, number of individual amendments is around 650, and he also stated that there is no doubt that the spirit of the original document has been diluted”.[10] Facts on Australia Constitution, between 1900 and 1990 42 proposal for constitutional amendments had been put forward and there were only 8 were approved in this regard, it has been observed that constitutional speaking, Australia is a frozen continent”.[11] Therefore as we can infer from the above statements why do UK needs to have that kind of consequences infact they allows for easy modification instead. Some of the English Lawyers has said that to adopt a written constitution would be pointless, because such a constitution would have no higher sanctity than an ordinary Acts of Parliament; it could be amended or repealed the next day by another Acts of Parliament,[12] hence as if amendments are keep on amending, how long this kind of procedures are going to prolonged, for 100 years??. A written constitution is ruled upon judges, and In Britain the judges are unelected and therefore undemocratic, hence this would give them obsolete power. Moreover, practical reasons as the UK from adopting a codified constitution would lead to time consuming (India Constitution took 2years to end it), besides that a large part of the English constitution is unwritten as in the convention) so it would be huge work to not just codifying but to think what to codify and if the conventions were to put into consideration, there could rise in political kiosk, upon deciding what and which conventions should be put in account.
But some have pointed out that by the UK adopting a codified constitution, it would be a solid document, full of clarity, and coherence, however this may be true to certain extent, do the youngest generations really cares about their constitution and do they have patients to read all those long pages of articles, statutes and etc such as the India and USA and those being very complicated on reading them itself. In addition, if the European Convention of Human rights or the Human Rights Act 1998 has not been enacted into the UK then these could be argued for the codification of the UK constitution, hence since the “ECHR” are effective in the Britain there is no point of having a codification. According to Professor Feldman “ECHR possesses a special status” and the establishment of the Human Rights Act 1998 are therefore very much sufficient to be a good alternative to a codification to the Britain.[13]
In conclusion, it doesn’t mean of adopting a Codified Constitution has no value, they do provide some indication of what supposed to happen and who are ruled by the Constitutions, but I seriously think that British don’t really need a Codified Constitution since it has a very good stability hence no one’s who has ever complained about the UK, hence although it is not codified, the Acts of parliament, Common Law, Human Rights Acts 1998 they do fill the in the gaps and so on to the future…..Britain is unique in its own way, let’s not destroy it for the younger generations… Therefore I would like to agree with the statement of V Bogdanor and S Vogenauer; Enacting a British Constitution: some problems’, 2008.
(2402 Words)
Bibliography
-
Constitutional and Administrative Law, 14th edition, Pearson/Longman,2007, page 4
2.
3 Hillarie Barnett ,Constitutional & Administrative law , 8th edition, pg 7
4 Ryan and Foster, page 6 & 7, Unlocking Constitutional Law
5 . Sir Ivor Jennings, The Law and The Constitution,www.insitelawmagazine.com/constitutional1.
6. BBC News UK 2006 accessed May 10th 2012
7.
8 ).
9 Ryan, M.Unlocking Constitution and Administrative Law, (London: Hodder Arnold, 2007),p 14
10 Quoted,
11 Hillarie Barnett,8th edition, Constitution and Administrative Law, pg 45, 46
12 De Smith,edited by Harry Street and Rodney Brazier, Constitutional and Administrative Law, 4th edtn,pg 18
13. Parpworth N. Constitutional and Administrative Law,(oxford: oxford university press)
Page
[1] Constitutional and Administrative Law, 14th edition, Pearson/Longman,2007, page 4
[2]
[3] Hillarie Barnett ,Constitutional & Administrative law , 8th edition, pg 7
[4] Ryan and Foster, page 6 & 7, Unlocking Constitutional Law
[5] Sir Ivor Jennings, The Law and The Constitution,www.insitelawmagazine.com/constitutional1.htm
[6] BBC News UK 2006 accessed May 10th 2012
[7] (
[8] ).
[9] Ryan, M.Unlocking Constitution and Administrative Law, (London: Hodder Arnold, 2007),p 14
[10] Quoted,
[11] Hillarie Barnett,8th edition, Constitution and Administrative Law, pg 45, 46
[12] De Smith, edited by Harry Street and Rodney Brazier, Constitutional and Administrative Law, 4th edition, pg 18
[13] Parpworth N. Constitutional and Administrative Law,(oxford: oxford university press)
