Law 1017M Constitutional and Administrative Law 1596860
Word Count: 2440
James Bryce proposed that, “[c]onstitutions are the expression of national character”.[footnoteRef:1] This raises the question as to why the United Kingdom (UK) is yet to produce a written and codified constitution? This essay shall substantiate its argument surrounding four points, including; the development of the constitution in the UK, parliamentary supremacy and the role of conventions, whilst evaluating whether it would be beneficial to adopt a written constitution. It would be unnecessary to adopt a written constitution at this stage, as the role of the UK Parliament is proficient as a regulatory body. The reasoning behind this position will become evident as the paper develops. [1: James Bryce, Constitutions (Oxford University Press 1905) p4. ]
As explained by Frederick F. Ridley, “[a] country’s constitution is a body of rules – some laws, some conventions – which regulate its system of government”.[footnoteRef:2] Suggesting that the UK Constitution is governed by laws and conventions, whether these are written or not. With regard to the current state of the UK Constitution, many believe that our dispersed constitution is anachronistic, this opinion was developed within the Political and Constitutional Reform Committee’s “Consultation on A new Magna Carta”.[footnoteRef:3] The UK is currently in a situation where “we are not concerned with a solid building, to a room which may be added here, or a wing there; but a living organism, in a condition of perpetual growth and change, of development and decay.”[footnoteRef:4] The UK does have a written constitution – just not written in a single coherent document. Eric Barendt agrees with this statement as he suggests that UK Constitutional law is a hotchpotch of statues, case law and miscellaneous rules which are made intelligible by reference to a number of conventions of uncertain scope and inconsistent application.[footnoteRef:5] As our dispersed constitution consists of an accumulation of political practice over time. This is demonstrated in Bogdanor’s quote, ‘they’re a product of a long period of history’. [2: F. F. Ridley, ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’ (1988) 41(3) Parl. Aff. 340.] [3: Political and Constitutional Reform Committee, ‘Consultation on A New Magna Carta?’ (Parliament UK, 3 March 2015) accessed 16 November 2017.] [4: Sidney Low, The Governance of England (London T. Fisher Unwin 1904) p2. ] [5: Eric Barendt, ‘Is there a United Kingdom Constitution?’ (1997) 17(1) O.J.L.S. 137. ]
There is often misunderstanding by academics surrounding the difference between unwritten and uncodified, as there is a distinct differentiation yet they are often placed under the same category. The British Constitution is unwritten in the sense that it is not set out in a single, consolidated document but rather it is rooted in custom and usage, and much of it consists of conventions that are not recorded in any one document.[footnoteRef:6] Codification is where a range of information is compressed into one document, namely a constitution.[footnoteRef:7] Hence, it is more accurate to say that the UK Constitution is uncodified rather than unwritten, as our constitution is “composed of the laws and rules that create the institutions of the state, regulate the relationship between those institutions, or regulate the relationship between the state and the individual.”[footnoteRef:8] Demonstrating that although the UK Constitution is not in a single document, it regulates the country as if it were. [6: Byrce (n 1) p6.] [7: Roger Masterman and Colin Murray, Exploring Constitutional and Administrative Law (Pearson Education 2013) p12.] [8: Ibid 3.]
The first substantive source that developed into a constitution was the Magna Carta of 1215, the ‘Great Charter of the Liberties of England’.[footnoteRef:9] This established the principle that our sovereign, at that particular time, King John, was subject to the 63 laws as agreed with the barons. This original concept laid the foundations for a constitutional government and a notion of liberation under the law.[footnoteRef:10] This ‘constitution’ demonstrated that it was possible to lay down rules for the country that even the King must obey, although on the contrary, many of the principles established in this document were repealed, revised or removed all together.[footnoteRef:11] Hence, suggesting that adopting a written constitution is not as simple as it may appear. The substantial difference between enacting a written constitution today and the thirteenth century is that there has not been a major event in which we have needed to recover from, although it may be argued that Brexit is the event which would be ideal to lead to the development of the UK’s written constitution. This would be an ideal time to construct a written constitution as it would be the most significant change to occur in British history. More specifically, in the twenty first century there are not angry barons petitioning outside the Palace of Westminster to limit the powers of the legislature, implying that the country is satisfied with the way the laws are regulated without the need for a written constitution. The Magna Carta exercised a strong influence the United States Constitution and that from numerous other states. [9: Masterman and Murray (n 7) p16. ] [10: Claire Breay and Julian Harrison, ‘Magna Carta: An Introduction’ (British Library, 28 July 2014) accessed 29 November 2017.] [11: Ibid 10.]
The US has a rigid and codified constitution, this is beneficial to the UK as it demonstrates the advantages and disadvantages that develop from having one written down in a single document. Following on from this, Bogdanor used the US as a means of criticising the constitution of the UK, as their preamble begins “We the people of the United States”, the implication being that the people of the United States have given themselves a constitution.[footnoteRef:12] Indicating that power originates from the people and inspires civic pride thereby providing an incentive to develop and modify one of our own. According to the UK constitution the Sovereign is ‘the Crown in Parliament’,[footnoteRef:13] with the will of the people being expressed solely through the will of their assembled parliamentary representatives in Parliament. These opposing forewords signify the differentiation between the two constitutions, demonstrating that without even exploring and drafting a constitution, it seems that if there were an appetite for a constitution in a single document, the will of the people ought to be reflected in Parliament and therefore these forewords would have to change, and this change would need to be in high demand. [12: Vernon Bogdanor, ‘Enacting a British Constitution: Some Problems’ (2008) P.L. 38-57.] [13: Nicholas Boyle, ‘In the UK, the Sovereign is the Crown in Parliament’ Financial Times (London, 28 June 2016). ]
Following on from the notion of Parliamentary Supremacy,[footnoteRef:14] Bogdanor expresses the view that if Parliament is sovereign, it would be trivial to have a written constitution. Bogdanor further argues that part of the rationale for a constitution is to limit the power of the legislature.[footnoteRef:15] Subsequently, if a written UK Constitution were to be drafted and published, it is unlikely that the constitution would have much authority, as it would be limited by legislation. Alexis De Tocqueville supported this by clarifying “[i]n England, the Parliament has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes, it does not really exist; the Parliament is at once a legislative and constituent assembly.”[footnoteRef:16] On the other hand, a constitution is more compatible with democracy and will be able to bridge the gap between the judiciary and politicians[footnoteRef:17] as the branches of government are able to counterbalance one another to prevent abuse of power. If there were to be a codified constitution this would be the supreme authority rather than a single assembly (like at present) and would contain its own mechanisms for principled change meaning that the rules, regulations and legislation that the country must abide by would be laid down in the document.[footnoteRef:18] This is the case in the US, with amendment VI making a direct statement that the supreme ‘Law of the Land’ is the constitution and any laws that derive from it.[footnoteRef:19] [14: ] [15: Ibid 6.] [16: Alexis De Tocqueville, Democracy in America (University of Chicago Press 2000). ] [17: Richard Gordon, ‘Without A Constitution, We are Trapped in a False Legitimacy of Democratic Consent’ (Constitution UK, 9 October 2013) accessed 18 November 2017. ] [18: Ibid 9.] [19: Amendment VI US Constitution 1787.]
A written constitution would, arguably, provide political stability as the body of laws would be identified as being supreme and it would be easily accessible by the general public. In addition to this, the laws would be clearly defined to allow judges to easily recognise when one is broken whilst providing a safeguard against a so-called dictatorship of the majority situation. On the other hand, the US reveals consequences of rigidity and that it does not necessarily promote as much clarity as may appear, it is apparent that judges still have to interpret the individual amendments.[footnoteRef:20] To illustrate the negative effects on the US Constitution is the 2nd Amendment (gun control laws), expressing “[a] well-respected Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” At the earlier time of the eighteenth century, it is evident that a law like this was proposed as a way of providing more power to state militias (which are today the National Guard).[footnoteRef:21] Whereas, in the twenty first century, where the US has a secure defence system and a standing Army, this amendment is no longer relevant and yet it is still legally binding unless they conduct a vote. The authority to amend the US Constitution is derived from article V of the Constitution,[footnoteRef:22] although there are two ways only one has ever been used. All 27 amendments have been ratified after two-thirds of the House and Senate approve of the proposal and sent it to the states for a vote. Then three-fourths of the states must affirm the proposed amendment.[footnoteRef:23] This being a paradigm of how difficult it would be for the UK to amend the written constitution if entrenched, as like the US, we would have to go through a long and difficult process (which has only succeeded 27 times in over 200 years). [20: District of Columbia v Heller 554 U.S. 570 (2008).] [21: Chad Brooks, ‘The Second Amendment and the Right to Bear Arms’ (Live Science, 28 June 2017) accessed 21 November 2017.] [22: Federal Register, ‘Constitutional Amendment Process’ (National Archives, 15 August 2015) accessed 21 November 2017.] [23: ‘The Constitution’ (Lexis Nexis) accessed 21 November 2017. ]
The US demonstrates that laws may be taken out of context in the future when they are no longer necessary. This was questioned within the US case District of Columbia v Heller[footnoteRef:24], in which there was a long debate surrounding the entrenched 2nd Amendment. It was decided in this case that the 2nd Amendment was an individual’s right and that to keep a hand gun in a house was acceptable for self-defence purposes. This case demonstrated how the courts would interpret an entrenched provision through the process of originalism or non-originalism. An originalist would interpret the terms to the meaning of the words at the time the constitution was drafted whereas non-originalists interpret the amendment to society and treat the constitution as a living document. [24: District of Columbia v Heller 554 U.S. 570 (2008).]
The effect of this ‘originalist’ approach raises issues for the UK if it were to adopt a written constitution, how would we interpret the provisions? If we were to treat them as a living document, it would be senseless to entrench them to begin with as people would interpret the document as they wish, to fit with their particular situation.
Regarding entrenched amendments, it has been suggested by many academics (particularly Barber)[footnoteRef:25] that the UK is in a position where it has all the appropriate checks and balances to regulate the separation of powers without the need of a written constitution, certifying that not one branch of government has primary control. Some of the utmost significant constitutional rules are found in Acts of Parliament, usually starting with the Magna Carta, of greater legal significance is the Bill of Rights of 1689 and another example of legislation that has attained constitutional standing is the Act of Settlement of 1701.[footnoteRef:26] A palpable statute that could be viewed as contributing to the tier of constitutional legislation is that of the Human Rights Act 1998, that ensures checks and balances are measured. The British system has placed primary reliance on the “notion of self-correcting democracy, according to which the protection of individuals’ rights was effected by the political mechanisms of ministerial responsibility and parliamentary scrutiny.”[footnoteRef:27] Through the requirement of political decision makers to seek and obtain the approval of the electorate at regular intervals, the electoral system itself operates as a check against the misuse of power.[footnoteRef:28] The Act itself has recognised the dilution of centralised authority in the UK and allows judges to check the executive in judicial review cases, increasing culpability and ensuring that the executive does not abuse its powers. As Professor Vernon Bogdanor has predicted that “issues which, in the past, were decided by ministers accountable to Parliament will now come to be decided by the courts”.[footnoteRef:29] This established legislation is just one example of how the UK’s ‘unwritten’ constitution is still efficient, as it does not need to be written to ensure that checks on centralised power are performed. [25: N.W. Barber, ‘Against a Written Constitution’ (2008) P.L. 11. ] [26: Douglas W. Vick ‘The Human Rights Act and the British Constitution’ 37:329 Tex.Int’l L.J. 329. ] [27: Lord Irvine of Lairg, ‘Sovereignty in Comparative Perspective: Constitutionalism in Britain and America’ (2001) 76(1) N.Y.U.L.Q.Rev. 1. ] [28: Jutta Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64(1) M.L.R. 1.] [29: Select Committee on Constitution Sixth Report, ‘Chapter 2: Executive and Judiciary’ (Parliament.UK) < https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15104.htm> accessed 29 November 2017.]
Bogdanor’s tennis club analysis makes an authoritative referral to ‘unspoken conventions’ being a significant source of the UK Constitution. Sidney Low stated that “[i]t is commonplace to say that the British System of Government, though grounded on law, is largely dependent upon what have been called constitutional conventions”.[footnoteRef:30] Conventions are simply the accumulation of political practice over centuries and are enforced only by political pressure[footnoteRef:31]. They are regarded as being as important as constitutionally significant laws, as they help explain the modern function of legal rules which may look outdated in a Parliamentary democracy. This defining element refers to the earlier point of our dispersed constitution being archaic as if we were to codify conventions it would provide clarity and ensure democracy, as it conforms to absolute legal rule. Canada has attempted to formalise such conventions through the Supreme Court,[footnoteRef:32] the case resulted in the decision that a convention cannot be made into legislation unless an Act of Parliament was passed to codify it. This principle was emulated through the case of R (Miller) v Secretary of State for Exiting the EU[footnoteRef:33] and became authoritative in the UK Supreme Court, suggesting that conventions are crucial to the successful operation of government and can be codified into laws once passed through Parliament (eg the convention relating to Money Bills).[footnoteRef:34] [30: Low (n 3) p3. ] [31: N. W. Barber, ‘Laws and Constitutional Conventions’ (2009) 125 L.Q.R. 294.] [32: Reference Re Amendment of the Constitution of Canada [1982] 2 SCR 793.] [33: R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5.] [34: Masterman and Murray (n 7) p47.]
As explained by Jennings “[t]he short explanation of the constitutional conventions is that they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas.”[footnoteRef:35] [35: Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1959).]
The relationship between conventions and the British Constitution is that they predominantly help to regulate the Monarch’s prerogative powers that she has retained since parliament seized the supreme law-making power from the Crown in the late seventeenth century.[footnoteRef:36] Specifically, the ability to have unrestricted legal power surrounding legislation. To illustrate, currently the Monarch has the ability to reject legislation, as royal assent is needed to establish a Bill into an Act of Parliament. In the past, a Queen (besides Queen Anne in 1708) will not reject a Bill that has passed through the House of Commons and the House of Lords. For that reason, if a bill were to be refused, it could lead to a political break of the Monarchy. As Bogdanor has stated in his analysis, ‘you’ll pick them up as you go along’ and this is a prime example of a convention coming into force at no precise moment just having developed over time. [36: Masterman and Murray (n 7) p39.]
To conclude, the UK Constitution is a complex area of law (supported by Barber)[footnoteRef:37], with a written and codified constitution being an abstract possibility. Although, through the use of evidence this essay relies upon it is evident that for the UK to adopt a written constitution would be a futile idea. This being down to the principle that the constitution currently has efficient checks and balances to regulate it and it would not be feasible to adopt one. [37: Barber (n 25) p11. ]
Bibliography
Primary Sources
Table of Cases
District of Columbia v Heller 554 U.S. 570 (2008).
R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5.
Reference Re Amendment of the Constitution of Canada [1982] 2 SCR 793.
Legislation
Amendment VI US Constitution 1787.
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Gordon R, ‘Without A Constitution, We are Trapped in a False Legitimacy of Democratic Consent’ (Constitution UK, 9 October 2013) accessed 18 November 2017.
