Yes

by Naomi Garton

Created on: January 02, 2011   Last Updated: January 04, 2011

The British Constitution today is largely written although uncodified; it is not brought together in a single document, and the absence of this is filled by Parliamentary Sovereignty. The main advantage of this unique constitution is that there are no restrictions on it to change and amend the laws and rights of Britain. In this respect it is flexible, mainly due to the overriding principle of the doctrine of implied repeal. Other advantages of this form of uncodified constitution include the rules and institutions that have developed over time with British society and learned from experience, and have not been spontaneously created in many codified constitutions as a result of some kind of disaster such as a revolution; in France 1789-1799 for example. However, at the reverse of this discussion are some disadvantages to consider such as the legal consequences of such an uncodified constitution where there is no written constitution to secure the fundamental rights of a human being. Only after consideration of both the advantages and disadvantages of an uncodified constitution can one decide whether a major codification of the UK constitution would be favourable. 

The main advantage of an uncodified constitution such as that in the UK is that it is flexible; it can be amended with ease to reflect changes in developing society as it is not entrenched. Unlike states whose constitutions set out complex procedures for constitutional reform like in the United States, in the UK an ordinary Act of Parliament can achieve fundamental reforms. When there has been periods of acute political upheaval such as the crisis over the House of Lords in 1911, it has never been necessary to reconstruct the whole system of government but instead legislation was passed to give effect in law to what was made necessary by the political event, and in this case it was the Parliament Act 1911. 

In juxtaposition to this, is a disadvantage of the uncodified constitution, in that constitutional reform is not based on an integrated programme of reform. For example the Labour government made extensive constitutional changes without placing them in such a programme of reform in 1997 and was criticised for doing so. Despite this, it does not seem favourable to codify the constitution because of this reason, as the advantage of passing laws in response to political events has seen the UK constitution through centuries of political turmoil. There seems therefore, no need to codify the constitution because the advantage here surpasses the disadvantage. 

However, often the legal consequences of this type of unwritten constitution can be less than advantageous. This can be seen in the UK constitution. In certain codified systems it is desired to place certain rights of the individual citizen beyond the reach of the organs of government, such as fundamental human rights, which will be entrenched in the constitution and sometimes rendered unalterable as in Germany. This might be perceived, however, to be too “anachronistic” but it means that the rights are entrenched within the constitution, and cannot be repealed as they can be in the UK. For example, the Human Rights Act of 1999 is not entrenched, and can be repealed as easily as it was put into place. This is a certain disadvantage of the British uncodified constitution because it does not protect the fundamental rights of the British people. This can be seen in recent news that the conservatives plan to repeal the Human Rights Act 1999 if they gain power in the upcoming general election.

Indeed, within the UK there is no written constitution to secure such fundamental rights, which must be filled by the legislative supremacy of Parliament and the rule of law; there are no formal restraints upon the exercise of power. The executive retains much power in having the power to make almost any law he or she wishes with a majority in the House of Commons. Although there are practical limits on this, such as the effectiveness on the people, who could, if they wished, simply not comply with the law, it is still concerning that part of our ‘democracy’ is open to corruption by the executive if he or she willed it. Prior to the Human Rights Act 1998, this seemed to be a worrying aspect of the UK’s uncodified constitution as fundamental human rights were not being protected by the constitution. However, the Human Rights Act 1998 has now significantly extended the role of the courts in protecting Human Rights, but there is still scope for concern as although sovereignty power must be compatible with this Bill, if it is not then the courts can issue a declaration of incompatibility which has no legal effect. The point is that it highlights a problem which would encourage parliament to remedy the problem, but it would not be binding upon them to do so.

Indeed, David Pannick QC wrote in an article for the Times in 2007 that, “It may also be time to move on from the typically British compromise in the Human Rights Act that allows judges to give a declaration that legislation is incompatible with the European Convention, but does not give courts the power to refuse to enforce such legislation.” Perhaps then, it would be favourable to codify the UK constitution as David Pannick QC goes on to say that, “the enactment of a British bill of rights and responsibilities would be an appropriate moment to recognise legally binding limits on parliamentary sovereignty,” suggesting that binding limits on parliamentary sovereignty and not simply natural ones would be more appropriate.

Despite these clear disadvantages, there are also many other advantages of having a codified constitution. One such main advantage is that no parliament can bind a future parliament. This means that all future parliaments can enjoy the same powers as the previous did. However, this is also debatable, as the European Communities Act 1972 is an act which will bind future parliaments who have to take into account when creating new legislation for as long as Britian remains part of the EU, the sovereignty of successive twenty-first century Parliaments is effectively and significantly restricted.

It is clear then, that the uncodified constitution, although functioning properly presently, contains many faults in that powers such as prerogatives which are not legally binding have the potential to let democracy fall apart. The Westminster system of government is not entirely incompatible with a written constitution, but it would be incredibly difficult to begin to codify it, because the common law is so detailed and specific in its form, which can be advantageous, but incredibly difficult for the individual citizen to follow. A codification would also be greatly opposed by traditionalists who might suggest that in codifying the UK constitution we might be in danger of forgetting the history and identity of our constitution, and we would lose the flexibility that makes it so unique.

Furthermore, within the UK the codified constitution is relatively low on the political agenda, and therefore the likelihood of an actual codification is small. This, however, does not mean that it would not be favourable. The advantages of having a codified constitution may not be plentiful, but, in my opinion, having an entrenched Bill of Rights would outweigh all the disadvantages of a codified constitution, because at the heart of a democratic society such as Britain, should be fundamental human rights. It is unfortunate, therefore, that the codification of the British constitution would be favourable but that it would be too difficult a task, without an event such as a full-scale revolution, to carry out.

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