Public law

Constitutions can further be classified as federal or unitary.  In a federal system, such as the US and Canada, there are two co-ordinate tiers of government: central and regional.  Each tier has exclusive powers that cannot be impinged upon by the other – this requires the existence of a written constitution and a supreme court to legislate on constitutional matters.

In a unitary system such as the UK, there is one supreme law-making body.  Any regional parliament or assembly with devolved powers remains subordinate to central parliament.  For example, the Scottish Parliament can pass a law on any matter not retained by Westminster.  However, the UK Parliament can amend or abolish any such Act and even enact one on behalf of the Scottish Parliament.

Finally, a constitution may also be republican or monarchical.  A republic usually has an elected president as head of State who has limited legislative powers but does retain over many domestic and foreign affairs, such as the ability to declare war.  The most obvious example here is US President George W Bush and his mandate on terrorism.

By contrast, the UK has what is known as a constitutional monarchy, where the reigning monarch is head of State.  Unlike the president of a republic, however, the UK monarch has only limited constitutional powers, which are now largely ceremonial.

In discussing the arguments for and against a written constitution for the UK, I will now consider the merits and demerits of the above types of constitution.

Arguments for a Written Constitution

Ordinary American citizens can often be heard discussing their enshrined constitutional rights, whether in TV documentaries or in relation to political campaigns e.g. the Second Amendment right to bear arms.

The same cannot be said of the UK.  This is not to say UK citizens have fewer rights than the US, it is just that our constitutional rights are not promulgated in the same manner.  A written constitution clarifying constitutional rights and obligations would surely empower UK citizens to the same extent as their American counterparts.  A code of rights would also provide “the legal means with which to challenge the legality of administrative action”.  The government would therefore be held more accountable for its actions.

This could work for or against political parties in that a more informed (and therefore less apathetic) electorate is likely to pay more attention come the hustings, which would equate to a greater turnout at elections.

The unlimited power of the UK Parliament to pass legislation is also open to criticism.  A common reason for distrust of the UK government is the belief that the notion of democracy in the UK is false: we exist in a democracy only every 5 years or whenever a general election is called.  In between times, the government may enact any legislation it wishes with the consensus of Parliament, discarding manifesto pledges it used to persuade the electorate.  They are restricted only by the primacy of EC law.

With the introduction of devolved bodies of government in Scotland, Wales and Northern Ireland in recent years, there has been much debate about the extent of devolution, or lack thereof.  This is not so much Nationalist or anti-Union sentiment as the desire for regional peoples like the Scots, Welsh and Irish, many of whom identify separately from their UK neighbours, to determine their own laws and policy.  Particularly in Scotland, people seem to feel more affinity for Europe than Westminster policy would reflect and the incumbent government’s apparent reluctance to proceed with a referendum on Europe has created tension in this respect.  We should also note here the attitude of people to the constitutional monarchy, many of whom do not identify with or even agree with having the Queen as our Head of State.

This suggests that moves towards a federal system with a written constitution would be welcomed in many quarters of the UK.

Arguments for an Unwritten Constitution

The primary reason for still having an unwritten constitution is that the UK has not experienced invasion, revolution or the granting of independence since the Norman invasion of 1066, unlike most other modern democracies.

This immediately raises a question – why change something that has worked well for centuries?  There is no significant suggestion that our existing constitution is ineffective.  There is a clearly defined separation of powers between the organs of government and sophisticated legal system which citizens can call upon when they feel rights have been infringed by the State e.g. by reference to the Human Rights Act  or European Convention on Human Rights (ECHR).  In practice, it would be difficult to argue that the government has called to account by the electorate on a significant number of occasions.

Change to a written constitution could require the creation of a constitutional court to preserve its rights and interpret in matters of dispute between the electorate and the State.  This has potentially undesirable implications for democracy in that it would raise the problem of removing constitutional decision-making powers from elected members of Parliament and leave them to the Judiciary, albeit whom are appointed by representatives of the Executive.

One of the arguments for implementing a written constitution above is that people will be more informed about their constitutional rights.  However, this has remained the case for centuries and still there is no imminent pressure to change to a written constitution.

If a referendum on changing to a written constitution were to be held, the electorate would have to informed of the significant cost, complexity and time involved in amending the constitution.  Assuming the government have not been saving for this eventuality, it is likely the costs involved (including the costs of the referendum) would have to be met from public funding.  This is unlikely to appeal to a majority who do not appear to have a problem with the traditional UK constitution.

Probably the main advantage of having an unwritten constitution lies in its flexibility.  The sovereignty of the UK Parliament allows the constitution to be amended fairly easily by statute, providing a majority of Parliament agree.  While this very fact can be criticised as being open to abuse, proposed bills still have to pass three readings in the House of Commons, a Parliamentary committee, scrutiny by the House of Lords (although the Lords can now only delay bills for a maximum of one year) and receive Royal Assent.  Given the diverse political make-up of these institutions, it is unlikely that any politically contentious proposals will get through.

Implications of Scotland Act 1998

“The combined effect of the Human Rights Act and the Scotland Act, when added to the European treaties, means that in Scotland the rights of individuals and the powers of the state are, to a considerable extent, based on fundamental constitutional laws which together can truly be said to be the written constitution of Scotland”.

Unlike the Parliament at Westminster, the process of formal administration of the Scottish Executive and its continuation in office or resignation is found in statute rather than a combination of statute, convention and common law.

In comparison to the somewhat ill-defined separation of powers in the UK Parliament, the Scotland Act 1998 defines the functions and powers of the Scottish Executive and its inter-institutional relations.  It differs from the Westminster model in that the Scotland Act does not refer to the relationship between the Scottish Executive and the Judiciary.

As an example of the retaining model of devolution, the Scottish Executive cannot exceed the powers conferred by the Scotland Act, neither can it breach rights guaranteed in the Human Rights Act 1998.

The combined features of the Scotland Act and the Human Rights Act would seem to equate to a written constitution for Scotland.  However, unlike other written constitutions, there is no express provision in the Scotland Act about human rights outside of the requirements of the ECHR.  This appears to be the major difference between the Scotland Act and codified constitutions such as exists in the US.

Conclusion

There are several persuasive reasons for adopting a written constitution in the UK.  However, one must consider the tremendous legislative upheaval and cost associated with such a fundamental conversion.

In Scotland, the Holyrood Parliament has its powers almost exclusively contained within the pages of the Scotland Act 1998.  I would suggest that it could be politically and economically viable to adopt a formal written constitution if Scotland were ever to become an independent nation.

In the meantime, given the absence of any real pressure for a move to a written UK constitution and the fact that the current system works and has been developed over centuries, there would appear to be no imminent need for change.

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Bibliography

Title                                                                Author(s)

Constitutional & Administrative Law (2002)                        H Barnett

Constitutional Law (13th Edition)                                Bradley & Ewing

The Scottish Parliament – An Introduction (3rd Edition)        J McFadden &                                                                         M Lazarowicz

Constitutional Reform – Again                                G Phillipson

(Student Law Review 2003, Volume 40)

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