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LA1020 Public law

Published : 09-Sep,2021  |  Views : 10

Question:

How significant is the UK’s lack of a codified constitution? Critically analyse whether there is a need for a constitutional codification.

Answer:

Introduction:

A codified constitution refers to the basic or fundamental laws, through which a framework of government is, established which is properly written down with the powers, duties and functions of the government’s institutions and the duties and rights of the individuals are codified. A leading example of a codified constitution is that of US’s constitution, where each and every aspect is clearly defined. When it comes to UK, the constitution is not codified in a single document. Instead, the constitution of UK derives from a range of written and unwritten sources. Included in these are accumulated conventions, EU law, common law, works of authority and Acts of Parliament. Certain viewpoints have been raised recently regarding the constitution of UK becoming more codified, as the elements are becoming written, but the fact remains that the constitution of UK is still not codified, which has even raised the question on having a codified constitution. In the following parts, an analysis has been conducted to show if a codified constitution is required in UK. In doing so, reference would be made to the impact of EU laws, the European Convention on Human Rights and the Human Rights Act, 1998.

Need for codification?

A constitution is a set of rules which help in regulating the balance of powers between judiciary, legislative, and executive branches, and also with regards to the citizens of the nation. A constitution has diversified scope and volume, where some areas are discussed briefly and others in detail, to such extent where these are drafted as fundamental rights as well. It is a well known fact that the constitution of UK is unwritten, which often raises the view of the nation having no constitution at all. In Rights of Man, Thomas Paine made an argument that the UK does not have a constitution since the criteria for electing a highest Parliament cannot be described as a constitution. Though, this notion is very formalistic and also narrow and also proves to be contradictory. This is because the nation has been governed in a successful manner without any major unrest for over three hundred years. In absence of a proper mechanism for governing the nation, this would not have been possible. So, in a broad manner, it can be stated that UK does have a constitution. The situation can be best stated as UK having a constitution which is partially uncodified and partially written.

There are only a few nations in the world where there is a lack of codified constitution and UK is amongst such nations. This is the reason why some have advocated for the constitution of the nation to be properly codified. However, in making such contentions, one key point has been ignored. This relates to the majority of constitution order of UK already having been written down in forms of statutes. A majority of details regarding the legislature, executive and their relationship are regulated with the help of convention. These parts of the constitution of UK are vulnerable to conflicting interpretation and this begs the need of prioritising in case a codification of constitution of UK is opted for. One also cannot ignore the fact that codification is not mandatory. The majority of uncodified portions have been covered in the Cabinet Manuals and in other texts. Apart from this, some parts which remain uncodified are covered through conventions. Hence, on the day to day activities, these elements are not likely to have a major impact.

 There has been a lot of literature which covers the lack of UK’s codified constitution. In many accounts, the lack of codified constitution of UK is deemed as a substantial thing. There continues to be divergence regarding the present agreements in UK being desirable and the need to adopt a codified constitution. The continuity and antiquity of the constitution of UK is quite frequently emphasized, in addition to its flexibility. There have been suggestions that the absence of crucial instance at certain point in history provided through revolution, military defeat or colonial independence, did help in explaining the reasons for not having a codified constitution. This is in addition to the resilient and long endurance of the UK’s uncodified constitution. What lies in the heart of the majority of interpretations is the parliamentary sovereignty, which continues to be a controversial issue in context of its desirability and nature.

Parliamentary sovereignty relates to the power of creating and unmaking the law, based on the discretion of the parliament. In UK, the laws of EU apply due to its continued association with EU, since Brexit has not yet been implemented. The nation’s Human Rights Act, 1998 integrates different provisions of European Convention on Human Rights, i.e., ECHR in the UK laws. There have been instances where claims have been made that through this act, the parliamentary sovereignty is disrupted. However, this is not true. For this, reference needs to be made to section 3 of the Human Rights Act, which requires the legislation to be interpreted in a manner where the rights are consistent with the ones covered under ECHR as far as possible. Where the same cannot be done, such interpretations have to be identified which are consistent and this is to be done by the higher courts as they have this power through section 4 of this act, with regards to issuance of statement of incompatibility. So, as far as can be done, the statutes are to be interpreted in alignment to ECHR.

A leading example of this is the case of R v A (No. 2) where the House of Lords decided upon the level to which the rape shield was aligned with the right to fair trial of the Article 6 of ECHR. Even when there are different meanings given to the statute by the court, the intent of the Parliament remains. Hence, the Parliament continues to have the power of enacting the statute which does not comply with the ECHR in clear terms and this would have to be supported by the courts. In this regard, the court can issue a declaration of incompatibility based on section 4 of the Human Rights Act. In all, the courts cannot restrict an act of parliament resulting in the parliamentary sovereignty remaining intact formally.  Thus, the parliamentary sovereignty shows that even without a codified constitution, there are no issues surrounding the applicability of laws, which could require the need for bringing out a codified constitution.  

The debate regarding codification of British Constitution has continued since a long time. Though, time and again, the reforms are initiated for bringing out a codified constitution. The constitution of UK is based on separation of and yet the parliament has been composed in such a manner where this principle is not upheld. This is because the majority of ministers are elected party’s members which results in the executive becoming a part of the legislature, which is the supreme source of lawmaking in the nation. Hence, the government can modify the constitution resulting in concentration of powers in their hands. As a result of this, there is a need raised for codification of constitution of UK so that Parliament can be abolished in order to stop the same from becoming the highest source of law to be under executive’s control. With the introduction of a written constitution, the control of executive over the legislative would not result in changes in constitution.

It has also been suggested that through a codified constitution, and by deeming it as an entrenched document as the highest source of law instead of Parliament and a stability can be brought in the constitution which cannot be amended easily. Through codification, a key step would be taken towards flexibility. The UK’s constitution is recognized for flexibility which is crucial for making certain that the legal framework constitution operates as per the constitutional values of the period. So, based on the social and political situations, the changes can be allowed to be made in the constitution. An absence of codified constitution essentially means that UK does not require formulating laws or statements, as doing the same would render the same redundant with political changes. An example of this can be seen in the constitution drafted in 1830, where declaration were included regarding the voting rights and House of Lords’ powers, which would have been made redundant with the Great Reform Act, 1832. In addition to this, the flexibility of the constitution allows uncomplicated changes and development in constitution even when the legal aspects are not affected. This too can be elucidated with the help of an example of Sewel Conventions, 1999’s creation. This convention restricted the Parliament from legislating on the issues which were related to Scottish Parliament without getting consent before doing do. Hence, the constitution of UK is quite complex, which evolves like a living organism and has characteristics of flexibility which allows it to get an edge in society owing to the possibility of evolving with the present political and societal values.  

Even with presence of such points, in the view of the writer, the codification of UK’s constitution is not required. This is stemmed from the common saying of ‘if it isn’t broken, don’t fix it’. The nation has been developing constantly and that too in a peaceful manner. It does not matter if there had been gradual development of constitution resulting in peaceful development or that there is a lack of revolution which has diminished the need for codification. Though, it can be stated with certainty that the present state of constitutional affairs have been working in an efficient manner since last three hundred years. If changes are brought just for the sake of it, it would be unreasonable. Also, one cannot guarantee that a codified constitution would be successful. If the supremacy is given to a codified constitution, it would be difficult to change and would be less flexible. A lot of time and effort would have to be spent for amending the codified constitution, which could prove difficult in urgent situations. The advantages of having an uncodified constitution were highlighted in the aftermaths of Hungerford massacre in 1987, after that the Dunblane massacre in 1996. In these situations, acts had been passed by the Parliament which included restricting and even complete banning of possession of fireworks in UK. An attempt at making snapshot of constitution for codifying it would also prove to be a momentous task, which cannot be guaranteed to be carried out with accuracy. If codification of constitution is attempted at the present time, it would garner a lot of public and media interest, which would result in legal knowledge of the citizens being enhanced. However, using this option for increasing citizen awareness is dangerous and a misconceived notion. Instead, steps should be taken at educating them through internet and TV.

Conclusion:

Thus, from the discussion carried on the previous parts, it can be concluded that a codified constitution is not required in UK. This is due to the success of the system which has already been implemented. In this system, the purpose for which constitution is codified, i.e., for forming laws, is already fulfilled by Parliament. Also, the matters are covered through EU laws, conventions, statutes and the like on different matters. When it comes to issue of parliamentary sovereignty, the interplay of ECHR and the Human Rights Act help in clarifying the issues raised through the help of the court. Thus, even when there is no codification of UK’s constitution, a proper system is already followed, where the rights of the individuals are properly protected through the governing acts and in matter of clash, the court interprets the provisions to bring clarity and at the same time, the Parliament continues to hold the supreme position as a law making body. Even though this non codification results in merging of the executive and the legislative branches of the government, the history of UK is evidence enough of the success of a non-codified constitution.

Bibliography:

Primary Sources

Cases

R v A (No. 2) [2002] I AC 45

Statutes and statutory instruments

Human Rights Act, 1998

EU legislation and cases

European Convention on Human Rights

Secondary Sources

Books

Barnett H, Constitutional and administrative law (12th edn, Taylor & Francis 2017)

Booth P, Towards a Liberal Utopia? (Bloomsbury Publishing USA 2006)

Dickinson HT, A Companion to Eighteenth-Century Britain (John Wiley & Sons 2008)

Doherty M, Public Law (Routledge 2016)

Elliott M, and Thomas R, Public Law (3rd edn, Oxford University Press 2017)

Foster S, Concentrate Questions and Answers Human Rights and Civil Liberties (Oxford University Press 2016)

Lynch P, Fairclough P, and Cooper T, Public Law (5th edn, Hachette UK 2017)

Journal articles

Beatson J, ‘Reforming an unwritten constitution’ (2010) 48 Law Quarterly Review.

Websites and blogs

Barnett A, ‘Why Britain needs a written constitution’ (The Guardian, 30 November 2016) <https://www.theguardian.com/commentisfree/2016/nov/30/why-britain-needs-written-constitution> accessed 16 November 2017

Blackburn R, ‘Britain's unwritten constitution’ (British Library, 13 March 2015) <https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution> accessed 16 November 2017

Blick A, ‘Centre for Political and Constitutional Studies’ (King’s College London, February 2011) <http://www.parliament.uk/pagefiles/56954/CPCS%20Literature%20Review%20%284%29.pdf> accessed 16 November 2017

Melton J, ‘Codification of the UK Constitution is not essential’ (UCL, 19 March 2015) <https://constitution-unit.com/2015/03/19/codification-of-the-uk-constitution-is-not-essential/> accessed 16 November 2017

Melton J, Stuart C, and Helen D, ‘To codify or not to codify?’ (UCL, March 2015) <https://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/162.pdf> accessed 16 November 2017

Reynoso I, ‘Should Britain Adopt a Written Constitution?’ (1 January 2014) <https://blogs.kcl.ac.uk/kslr/?p=114> accessed 16 November 2017

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