a) Does the United Kingdom have a "constitution"?

The United Kingdom however is rare among liberal democracies in not having a codified constitution along with Israel and up until 1996 New Zealand was largely unwritten. . Instead, as previously mentioned it is derived from a number of sources. Its principal source is statute law, i.e., laws passed by the UK Parliament. Statute law is particularly important for determining the powers and scope of government, and the conduct of elections not to mention the fact that statute law are in essence constitutional documents. Examples include the Act of Union of 1707 which shut down both the English and Scottish Parliament and forged the UK Parliament. An array of conventions, or unwritten understandings and customs, also surround the rules of then constitution. Although not supported by law, these are considered to be binding. Constitutional authority is also derived from common law, that is, the legal principles and 'precedents' established by judicial decisions. As well as statute law there have been many other notable constitutional documents. First there was the Magna Carta, written in 1215, which outlined some important principles curbing the arbitrary rule of the monarch. This document, whilst not of legal relevance today, has important symbolic value for establishing the rights of citizens and limiting legislative power. Then Bill of Rights 1689, which extended the power of Parliament, and then by the Reform Act 1832, which made changes to the electoral system. The entry of the UK into the European Union in 1973 was a major constitutional development and then finally the Human Rights Act 1998.

Arguably the most important principle of the UK constitution is that of parliamentary sovereignty. Under this principle, Parliament can make or unmake any law on any subject whatsoever even if it was incredibly ridiculous provided it was not in violation of any section in the Human Rights Act 1998. No one Parliament is bound by the decisions of its predecessors, nor can it bind its successors seen in the forming of the UK Parliament in 1707. There is no higher body, such as a supreme court, that constrains the legal authority of Parliament. However, parliamentary sovereignty is now directly challenged by the UK's membership of the European Union. By entering into the European Union a state accepts that they are answerable to this ‘higher entity’. Therefore all laws passed at the European level are considered legally superior to domestic law, and are ultimately protected by a higher constitutional court, the European Court of Justice. To say that the constitution of the United Kingdom is unwritten could be considered as inaccurate by legal professionals and scholars alike. The fact that although there is no specific single document, the constitution of the United Kingdom is made up of many documents, judgments and principles. There are also similarities to a codified or written constitution in the sense that a law can only be repealed by a higher court in this case the European Court of Justice. It is therefore evident that the United Kingdom has a constitution just not in the parameters that other states do.

B) Would good government in the United Kingdom be improved if a legally enforceable written constitution was introduced?

Many legal professionals, scholars and the electorate argue that the UK needs a written constitution in order to restrain the unbridled power of the executive. However, with this comes a predicament, the executive dominates Parliament; anything that limits the power of the Government undermines and contradicts the traditional doctrine of Parliamentary sovereignty. Thus a written constitution could have a negative effect and would refute the convention that no future Government can be bound by the actions of a former Government. The possible purpose and problem of a written constitution is that it has potential to act as a brake or a slight preventative on the democratic supremacy of Parliament which would no doubt be met with animosity amongst the executive. Another interesting point raised by Michael White of the Guardian:

‘The many treaties accumulated since the original "common market" six signed the Treaty of Rome in 1956 are as fat as a telephone book and not much better written. The US constitution of 1787 can be read and understood by a sixth former in half an hour.’

This is a key argument as it would appear that this is regular occurrence in English law. Nothing it would seem is ever simple; go no further than statute law itself, take the Human Rights Act 1998 which, in truth is one of the smaller Acts of Parliament but is still forty-seven pages long.  In truth Britain has survived very well until now with an unwritten constitution simply because the majority of the citizenry is not demanding a written constitution because it does understand the conventions which govern political procedure. This all follows a basic well-known saying of society; ‘don’t fix it if it’s not broken’ and up until now the U.K. has managed without a written constitution. The constitutional conventions that Britain has accumulated over time are very strong and have served the nation well. Furthermore the constitution of a state is there to represent and protect the rights of the individual therefore a written constitution would give power to the judiciary as judges enforce the written constitutions. This would raise problems due to the fact that in the U.K. the judges are not elected and it is therefore undemocratic to take power away from our elected representatives and give it to judges who tend to be quite reactionary and would raise issues of bias.

As with any argument there will always be advantages of the notion of a written constitution. Firstly there would unmistakable clarity by enshrining the constitutional laws and customs in one solitary document would provide clarity for those working within the system and for those who wished to scrutinize it even though the task of condensing centuries of statute law and constitutional conventions would be a mammoth task and would be a monumental feat if it was done simply because of the vast amounts that have accumulated. On the flip-side of the earlier point about more power to judges this could also be seen a positive point due to the weakness of the judiciary and this would increase its power to keep the executive in check because as it stands judges in the U.K cannot openly scrutinize an act of Parliament. At present, if a party has a majority in the House of Commons they can change our constitution. An example of this is Blair’s reform of the House of the Lords. He was able to completely change half of the legislature without a referendum or other means of checking consensus. A written constitution would act as a safeguard as it would make it difficult to change. For example there would have to have be 2/3 majority in both houses and it would have to be passed by referendum.

What is evident is that in actuality the negatives outweigh that of the positives in the debate for a written constitution. It is clear however that there are many aspects of the constitution of the United Kingdom that would be greatly benefited by such a document but it just does seem a logical exercise to embark on. The phenomenal amount of current legislation and conventions in place would take years to condense. Another key point is that the beauty of having an unwritten constitution is that there is a remarkable degree of flexibility for example if there is a political mandate from the people the constitution if necessary can be reformed by the enactment of a new Act of Parliament, countries like the United States of America do not have this luxury and it is virtually impossible to change their constitution. In conclusion to this the idea that the U.K. has survived this long without a written doctrine is sufficient evidence that it would be unnecessary to produce such a document that would just lead to months maybe years of confusion and would uproot the values society already knows and understands.

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