Lee Chong Sheng
LLB-UoL
Public Law
Question
Consider the view that the UK should now adapt for itself a written constitution.
Answer
A constitution concerns both the government and the people of a country. The term constitution may be defined as a series of principles and ways on how the government of a nation should be run. Some constitutions also contain certain rights and liberties of the people. In some countries, for instance, Malaysia, a constitution includes the ideology of the nation, listing of the powers, limitations & functions of the three organs of the government and the monarch, as well as the rights of citizens. Therefore, a constitution acts as an important piece of guidance, constantly reminding and guiding the executive, legislature and judiciary department in a way that they would rule a nation with utmost justice, as well as political efficiency and integrity.
Unlike the constitutions of most countries, the British constitution is largely unwritten, meaning that it doesn’t exist clearly and organized in a single piece of document. This is because unlike Commonwealth countries, Britain has never been subjected to alien rule since 1066. Moreover, most countries with a written constitution have either been through a successful revolution or even war, both of which Britain has never had. However, the majority of the British constitution does exist in the written form of statutes, court judgments and treaties. The constitution has other unwritten sources, including parliamentary conventions. Besides being largely unwritten, the British constitution also has other differences such as being unitary in structure, flexible, monarchical, and it grants parliament sovereignty to the government.
Over the past few years, the UK government has gone through arguments now and then on whether or not to codify the British Constitution.
There are a few reasons to why a written constitution is needed. Among those reasons, the most relevant one would be to eliminate parliamentary sovereignty, which is caused by the vacuum created by the absence of a written constitution. Parliamentary sovereignty is a problem as it could potentially cause arbitrariness since the parliament cannot be questioned at all.
Simultaneously, in the cabinet-style of government in the UK, it is sure that there will be a serious overlap between the executive and the legislature, in the same time, allowing the executive to partly control the legislative department. In other words, due to the doctrine of parliament sovereignty, the parliament can pass laws, & then imply policies. Besides the involvement in the legislature, the parliament is strengthened and supported by constitutional conventions, which build up most of the British constitution and are naturally political by birth.
The Royal Prerogative convention for instance, grants supremacy to the parliament, and therefore, causing the decisions made by the executive unquestionable, even by the legislative department. Another example would be a situation, when the legislative, a judge for instance, finds an Act of Parliament enacted by the parliament contravening with the Human Rights Act 1998, the judge doesn’t have the authority to invalidate that particular Act of Parliament. However, the judge is allowed to make a “declaration of incompatibility”, stating that the statute clashes against supposed human rights. This again shows that the parliament has the ability to amend certain laws even though they regard human rights.
Besides, a written constitution would serve as a check and balance mechanism over the potential arbitrariness by the Parliament, as mentioned earlier. Moreover, according to Lord Woolf, the increasing involvement of Parliament on judiciary independence is showing that the judiciary should soon adapt a written constitution in order to protect themselves from further political interference. Lastly, as for the people, the codification of the British constitution would make it easier for citizens to refer to their rights as we only need to point to a singular text. This change is indeed a long awaited task as it is very inconvenient and quite impossible for an ordinary citizen to search through a jungle of legislature and conventions, all merely to confirm one’s deserved rights. Generally speaking, these are the main reasons which have been driving the British people to craving for the codification of the largely unwritten UK constitution.
Despite the constant arguments raised for a written constitution, there are also voices to why the British constitution should remain as how it is right now. Some say that since the Human Rights Act 1998 is debatably a Bill of Rights, there is no urgent need for a written constitution. Another contributing factor to the argument will be the large consumption of time and money needed to codify a few hundred years much of statutes and conventions into a single document, not to mention the difficulty of the task, for instance, the usage of expert committees, the publication of consultation documents, and the referendums needed in the end. All of these troublesome efforts would not be worth it as the end product is merely bringing together documents which are written down before, although the documents are scattered in form. Another good question supporting the arguments is: “why fix something that isn’t broken?” The British has managed to run the government steadily all these years and has indeed been a responsible government. William Hague once argued “that there was no need for a written constitution since the UK already has internal stability and democratic liability”. Besides that, codifying the current constitution will also mean drawing the judiciary department into the political circle as judges then have to decide on political issues. In the end, the judiciary will slowly lose judiciary independence. Somehow, the rules and practices in the constitution which are constantly changing have a way of adapting and renewing themselves, in the same time, keeping the constitution up-to-date. So, if the British constitution was to be codified, it would then “freeze” and stop these rules and practices, currently in forms of conventions, from evolving. In support with the arguments against a written constitution, the original constitution owns a certain amount of flexibility, a virtue which a written constitution would not possess. Flexibility, according to Hillaire Barnett, means that an outdated convention can be discarded with ease and constitutional improvements brought about “with the minimum of constitutional formality”.
From my point of view, the British should not change and adapt a written constitution as for a few reasons. Time and money is indeed a huge factor that should be put into much consideration as starting the project would then lead to the consumption of millions of pounds and a few decades. In case of any regret or shortage of expanses, the process would then be too difficult to turn back or to recover from. Besides that, the British constitution has its own ways of operating, meaning that it is rather unique. Compared to other countries’ constitutions, the UK constitution is “grown”, not made. This means that the constitution itself is constantly evolving, in the process, accumulating hundreds of years worth of experience and adaptability. So, why change something that is not only unique but also that historically precious? Yet, the codifying of the British constitution can’t promise a lot of improvements in terms of the current constitution. As a matter in fact, a written constitution would merely bring a clearer reference to citizens’ human rights, and more significant separation of powers. Although these changes can be guaranteed with a written constitution, it is still hard to tell whether an improvement of how a thing looks can also change the way of how a thing works, which is actually the main goal everybody is trying to achieve. As a conclusion, it is more advisable to settle with the current situation and try to compromise with it, in order to get the best the British Constitution can offer, rather than setting off in search of something that is already reachable now.
