The fact that the UK does not have a written constitution is no practical
significance to the individual. Discuss.
A constitution is broadly described as a body of rules and responsibilities of the
major organs and officers of government and the relationship between them. In
a narrower sense a constitution refers to a single document of a state’s
constitutional rules in a documentary or codified form.
Britain is mistakenly referred to as having an “unwritten” constitution which is
misleading as strictly speaking much of the constitution can be found in written
documents such as acts of parliament. Unlike Britain the USA’s constitution is a
written constitution with its major rules being codified and contained within
seven articles with their subsequent amendments. It is suggested that this
country in its history, law and literature have done more than any other to
advance the liberty of the citizen against the state. The question then arises as to
why we are afraid of enshrining British freedom in a written constitution.
One of the most obvious and maybe most important points to put forward are
that “if it isn’t broke, then don’t fix it” Any attempt to improve on a system that
already works is pointless and may even be detrimental. It was said by Professor
Barber that “Britain’s constitution has by and large been a success. “ Which
supports the questions as to whether a written constitution is actually necessary,
when the u’s constitutional rules have worked and served us well for hundreds of
years. Written constitutions do not happen by accident; a country usually
acquires one by way of a certain political event E.g. revolution in us 1787 or
acquiring independence from colonial rule like Canada 1867.
There are many advantages of adopting a written constitution in the UK and
there are many pressure groups, political figures and ordinary people who believe
we should have one. Constitutions are supposed to be the fundamental social
compacts by which authority and order are maintained, and soak written
constitution may 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 eh times. The idea that
the constitution of Britain is shaped by the government of the day gives rise to
the 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 UK is based on. The meaning of the term is best described by
A.V. dicey as parliament has under the English constitution, the right to make or
unmake any law whatever and further, that no person or body is recognised by
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 it 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,
even to increase their own power. This indicates that a fully codified written
constitution would be unable to keep with eh times, ultimately rendering it
obsolete, This therefore means that within the uk there is no such things as
constitutional guarantees due to the fact that no legislation is given any special
status whether is to be deemed constitutional or not. In any state with a written
constitution the constitution is superior to the legislature a nd it confers and
distributes the legislative power. The constitutional document would give
constitutional guarantees as the executive would have to honour them. Therefore
the document may be seen as a way of restricting the powers of parliament and
the executive as the document would be legally entrenched which a big
advantage of a written constitution is .
However this may also be seen as a disadvantage as a written constitution is
extremely difficult, near impossible to amend or change. The fact that our
constitution is unwritten means that parliament can basically pass any law it
chooses . Therefore the constitution is far more flexible; which is 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 t he correct balance of rights and powers between
individuals and the state in free civilised societies. It provides 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 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 powers that the executive has granted, or
which are recognised by the courts as existing at common law. It’s effective ness
and creditability 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 supreme court shows that at the
moment our judiciary is relatively weak in its ability to act as a check against
parliament. A written const itution would increase its power.
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 whic h 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 in a single document but it does exist.
Although parliament still remains supreme in the UK and could technically repeal
this legislation at any time, we might better the individuals by the incorporation
of these within a written constitution. Where it cannot be repealed or amended
like the ordinary statue law by a simple majority vote in parliament. Therefore a
written would be advantageous in protecting the individual’s rights and liberties
against the state.
In conclusion a written constitution ca n be seen as a far more advantageous way
of setting out and clarifying the rules and regulations of a state, but it is only
appropriate at the right time and in the right circumstances. It can be said that
most people in the UK aren’t aware of what a constitution is, and although some
may argue that a public insight into politics may be achieved by a written
constitution many would oppose this happening. Britain’s present successful
judicial system and democratic parliament has remained stable and has a
reasonable government for years, why risk detriment to the country if the
codified form of a constitution does not necessarily play a part in its effectiveness.