Assess the advantages and disadvantages of a written constitution for the UK’s system of government. PDF

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Assess the advantages and disadvantages of a written constitution for the UK’s system ofgovernment.The United Kingdom is a parliamentary democracy with a constitutional monarch. Politics in the United Kingdom takes place within the framework of a constitutional monarchy, in which the monarch sits as...

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Assess the advantages and disadvantages of a written constitution for the UK’s system of government. The United Kingdom is a parliamentary democracy with a constitutional monarch. Politics in the United Kingdom takes place within the framework of a constitutional monarchy, in which the monarch sits as head of state and the prime minister as the head of the UK government. Most of the powers once exercised by the monarch have now been devolved to ministers. However in certain aspects, the monarch retains the power to exercise personal discretion over issues such as appointing the prime minister and dissolving Parliament, despite the fact that these powers may never be used in practice, or may only be exercised symbolically. As a result of a long process of change during which the monarchy’s absolute power has been reducing gradually, custom now indicate that the Queen follows ministerial advice. Furthermore, the United Kingdom does not have a single, written constitution however; this does not mean that the UK has an ‘unwritten constitution’. In fact, it is mostly written but instead of being one formal document, the British constitution is formed from various sources including statute law, case law made by judges, and international treaties. There are also some unwritten sources, including parliamentary conventions and royal prerogatives. In recent years there have been voices echoing that UK should now adopt a written constitution. A written constitution is a constitution which is codified in one single document; it usually has the procedure for its amendment entrenched in the constitution. It is also the official state document explaining the nature of the constitutional decision which is about the rules and regulation and the political system as well as the rights of citizens and governments in a codified form. Furthermore, constitution is supposed to be well- established and this is because they are not easy to make changes or abolish it. A written constitution also set out strict separation of powers and functions of the government institutions. However, there are several strong propositions in favour of a written constitution for the UK’s system of government. The case for a written constitution is that it would enable everyone to know what the rules and institutions were that governed and directed ministers, civil servants and parliamentarians in performing their public duties. The idea of written constitution favours the ideology of separation of powers that, the rules about our core institutions of government, especially the executive, the legislature and judiciary, are of a fundamental and different character to other kinds of law. They should be clearly distinguished from ordinary law and codified in a special document, becoming the United Kingdom's 'written' constitution because, the present constitution as it has evolved in recent times has become one of 'elective dictatorship’ (Lord Hailsham) lacking separation in powers.

Furthermore the propositions go on to hit on the basic historical fundamental pillar of UK’s constitutional history known as ‘Parliamentary sovereignty’. In a democracy the people, not Parliament, are sovereign. The idea of 'parliamentary sovereignty' emanates to a large extent from the seventeenth century, signifying the supremacy of an Act of Parliament over the Crown's prerogative after the Civil War and Glorious Revolution of 1688. However, it is an untenable doctrine today that there are no limitations at all on what Parliament can legislate about, however repugnant or unpopular. In practice, parliamentary sovereignty is wielded by the government of the day and not Parliament as such. Thus

conclusively, “Parliamentary sovereignty is an anachronism in the democratic era, and needs replacing by a written constitution” that expresses the sovereignty of the people in accordance with rule of law and circumscribes the powers and duties of members of Parliament in both Houses. On the other hand it goes on to propose codified checks and balances instead of conventional checks and balances as the public trust in ministers, parliamentarians and civil servants has been in a state of decline, if not crisis, in recent times. To help buttress public confidence in the political system, a clear structure of controls and safeguards needs to be codified into a written constitution that ensures their integrity and standards. In the meantime, major step towards codification of separate areas of the constitutional and political system have been taking place in recent years however, in an informal and disconnected way. This includes circulars issued by government such as the Ministerial Code, Osmotherly Rules, and the Cabinet Manual, the Code of Conduct for Members of Parliament, and the Code of Conduct for Members of the House of Lords, issued by each House of Parliament, and in parliamentary statutes such as the Human Rights Act 1998 preserving fundamental rights, Constitutional Reform and Governance Act 2010 creating a statutory basis for the civil service and for the parliamentary scrutiny and approval of treaties and Fixed-term Parliaments Act 2011 codifying the law on general election timing. However, this process towards codifying government needs to be joined up and completed in one comprehensive and coherent document forming a written constitution that will provide more certainty in the system. Moreover, a written constitution would not mean losing Britain's sense of history. Any historic institutions and ceremonies of past centuries that remain valuable for today, including the monarchy, can simply be codified into a written constitution in spite with the fact of clarity over their modern roles, duties and functions. However, the process of establishing a codified constitution would give the people a role for the first time in determining the central principles of the constitution of the UK on which they have never been fully consulted, this will bring them a sense of knowing their lands law with clarity. Nevertheless, a written constitution would become the most prominent national document in the country, with great symbolic as well as legal importance; it would have a beneficial educative effect in society, on how the system of government should work and what are a person’s rights and responsibilities. A written constitution would be a confident expression of the United Kingdom's national identity, both domestically and internationally. It would more effectively describe the legal and political boundaries of the British state and also with rest of the world. Every other major democratic country in the world, except two, have a written constitution, serving as important symbols of national unity and pride. It is ironic that Britain was in the vanguard of major constitutional documentation in the western world, such as Magna Carta 1215 and the Bill of Rights 1689, but has failed to produce one for the democratic era. Lastly, Brexit has become a great challenge for the un-codified constitution of the nation. A written constitution will allow the country to sufficiently stabilising their economy that has recently been hit by the Brexit.

However, now looking at the other side of the coin, there are equally persuasive ideas supporting the beauty of unique British constitution ‘the unwritten un codified constitution’. Written constitutions around the world have almost been initiated as a result of a revolution, domestic unrests or grant of independence from a colonial power or larger political union, and none of these circumstances exist in the United Kingdom today. As a matter of fact, the British system of government and its unwritten constitution works well in its present form and as it is famously said by Colin Powell that 'if it isn’t broke, don't fix it'. However, it is impossible to codify the constitution without changing it, and change is not wanted in UK today. Furthermore, a written constitution would most likely enshrine the doctrine of separation of powers, which in its strict form is alien to the essence of the UK constitution. The essence of the British constitution has been not separation of powers but a flexibly mixing and sharing of powers that has served the country well in terms of ministerial and administrative responsibility and accountability to Parliament and the electorate. In other words trying to impose separation of powers onto the British system of government would be an affront to the British constitutional tradition. In fact today, there is no absolute doctrine of separation of powers in the UK constitution. Overlaps exist both in terms of functions of the organs of the state and the personnel operating within them. However, the UK relies on a System of checks and balances to prevent against abuses of power. The idea of legislative parliament being supreme is preserved in the unwritten nature of the constitution. The Parliamentary supremacy has been called the “Keystone” of the British constitution (as Dicey called it), In other words, what is meant is that the doctrine is no less than ‘the central principle’ of the system, on which all the rest depends. The unwritten constitution allows a democratic Parliament to be the supreme source of law, rather than an unelected judiciary. However, if the written constitution carried a higher status and priority in law, as written constitutions normally do (US Constitution), then the United Kingdom's Supreme Court would be able to review the constitutionality of particular sections in Acts of Parliament, giving judges rather than elected parliament the final say on what is and what is not the law, this will undermine the beauty of parliamentary supreme. Nevertheless a written constitution would curb the ability of elected representatives and their officials to act quickly and flexibly to meet citizen’s needs. In fact when dealing with such matters elected representatives and their officials would find their discretion curbed even more tightly than before because of the new raft of principles and procedures needed to be complied with if judicial review applications to the courts seeking to quash their decisions were to be avoided ('the judge over your shoulder', as this has been termed). Nevertheless, the adoption of a codified constitution will affect the democratic rule in the UK and might also lead to judicial tyranny. The reason is that judges would be the ones policing the constitution and the interpretation of the constitution can be affected by the personal preference and values of judges. Furthermore, they are not elected and not socially representative of society with that they are “diminishing” the idea of democratic rule in the UK as they are taking power away from elected representatives in the House of Commons. On the other hand, If the proposers of a written constitution maintain that there are insufficient institutional checks and balances on the actions, decisions and policies of the executive (an 'elective dictatorship'), however, this is a simplistic analysis and the reality on grounds is very different, there being very considerable pressures on ministers making the implementation of controversial new measures or policies very difficult. These pressures come from the Opposition in the House of

Commons, Q and A sessions, intra-party dissent from the government's own backbench Members in the House of Commons, the scrutiny procedures and cross-examination of the departmental select committees, Conventional checks on ministers and their departments, as well as media criticism and the need to court public opinion to avoid the threat of being voted out of office at the next general election. There are number of examples Ministers have resigned due to their departmental functions or personal lacks, in the case of the Crichel Down affair in 1954 where the minister responsible, Sir Thomas Dugdale, resigned after a damning report of the actions of those acting for government. There numerous more examples in past however this is just because of the strong checks and balances. It is pertinent to note that, where greater clarity over the United Kingdom's political rules is required, an ad hoc process of codification has already been taking place, and can continue to do so. Thus there is a Ministerial Code dealing with responsibilities and procedures for ministers supervised by the Prime Minister and Cabinet Secretary; there is a Civil Service Code regulating ethics for officials supervised by the Civil Service Commission; and there is a judicially enforced code of civil rights and freedoms in the Human Rights Act. This approach is preferable to a comprehensive scheme of codification in a written constitution, because it is an approach that fits with the United Kingdom's evolutionary nature. The United Kingdom has an evolutionary system of government that adapts smoothly to changing social and political conditions, whereas a written constitution entrenching its institutions and rules would be more rigid and difficult to change with a danger that it might fossilise and become out of date. Furthermore, any study of written constitutions around the world shows that they only come into existence after a successful invasion, after a revolution, or some appalling failure in the polity and breakdown in the way government and politics were operating. The current malaise in the UK is nowhere near any of these catastrophic moments, and does not require a fresh start and a radical new way of conducting government and politics. Thus conclusively, encapsulating Britain’s constitutional arrangements in a single document is nonetheless a Herculean task! Written or unwritten, one thing is for sure: there is no such thing as a perfect constitution. In my opinion, UK shall now adopt a codified written constitution, as we have seen with time that the powers in UK have evolved from one to another. Connecting the historical dots, where powers of the monarch were made subject to the law, Prerogatives now live in hands of ministers, judicial independence, and Parliament being supreme to Parliament losing its sovereignty at the hands of European union (some may portray it as consented give up but, history will always show that where national law did not stood with compliance the EU law prevailed. UK lost his sovereignty back then at the hands of EU and the essence of ‘unwritten-ness’ was lost too when the new reforms such as written cabinet manual and code of conducts were introduced. Nevertheless, looking at the current uncertain condition of United Kingdom a few of the challenges such as the transformation of the UK’s legal system that Brexit entails, the involvement of the institutions in the Brexit process and the potential negotiations of new agreements with the rest of the EU member states. Leaving aside how interesting these issues may be, they are principally speculative since the UK’s exit from the EU is still in a beginning period. In spite of the fact that, in January 2017, the UK Supreme Court ruled in the Miller case that parliamentary endorsement was required so as to commence the procedure of leaving the EU. This decision has given some clarity respect to the institutional involvement, yet the rest of the issues are still unresolved. UK has a lot to legislate within the transition period provided by EU, if today the acts become codified into a single picture it would be a new start for UK....