Describe and analyse the case for a written constitution for the UK PDF

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Describe and analyse the case for a written constitution for the UK

A constitution is a form of government that helps to govern, dictate and establish the institutions of the state. It also allows the regulation of the relationship between those institutions, but also ‘that between the state and their citizens’1. Constitutions may be classified as written or unwritten, federal or unitary, republican or monarchical, flexible or rigid, etc. This opinion was divulged by KC Wheare2, in his book on modern constitutions. The case of Marbury v Madison (1803)3 in the US Supreme Court noted a point made by Chief Justice Marshall. He proclaimed that those who draft written constitutions or codified constitutions, aspire for them to be fundamental laws of the state, therefore they have special legal standing. Unwritten constitutions, on the other hand, are usually stressed to have rather little legal standing. Lord Birkenhead in McCawley v The King (1920)4, focuses on the constitutional law in the UK, he notes that the development of this constitution was mainly based on historical development, so therefore has little legal standing. This argument shows that the UK’s constitutional arrangements, have rather little legal credibility, this is further supported by Elliott & Thomas5. It is long been debated whether the UK should adopt a codified constitution, this essay will explore some arguments.

A codified constitution would more securely safeguard rights, it would also help to firmly establish the relationship between the state and its citizens. As a result of this, rights will be increasingly clarified and clearly specified and easier to enforce, rather than under the uncodified constitution currently of the UK. Further to the argument, an uncodified constitution paves the way for executive dominance. This is furthered by the Parliament Acts of 1911 and 1949, and also the addition of the Salisbury Convention. Under this current system, it means that the house of lords is unable to block or restrict the government 1 A Tomkins, Public Law (Oxford university press 2003) 3 2 KC Wheare, Modern Constitutions (2nd edn, 1966)

3 Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803) 4 McCawley v The King (1920) A.C. 691 5 Elliott & Thomas, Public Law (4th edn, 2020) 25

initiatives, thus promoting executive dominance. However, under a written constitution, a bill of rights could be passed, thus defining rights. This document would allow the specification and definition of individual liberties and rights, and therefore would establish the view of civil liberty.

On the other hand, written constitutions can also be viewed as rigid. Uncodified constitution are seen to be more flexible as they are not entrenched like written constitutions. Lord Birkenhead in McCawley v The King (1920)6 spoke about the way constitutions are able to amend or change the constitution. He noted that codified constitutions may contain special clauses which have a requirement of special procedures to occur or even special legislative bodies to make, repeal and amend laws. Whilst the UK has no special procedure due to it having an uncodified constitution. This means that written constitutions can also be increasingly un-relevant or not up to date. Due to them being difficult to change, they may not be able to change with the times, and thus may not fit the social and political circumstances of that society. Therefore, flexibility is increasingly important as it is a useful tool within an ever-changing modern society and allows for the development of the constitution as a whole. So written constitutions can thus be seen as rigid, and it is more beneficial to opt for an unwritten constitution.

Having a written constitution also provides increasingly more clarity on constitutional issues and rules, this is highlighted by Jeff King 7 as the ‘Clarity based case’. In the UK having an uncodified constitution has provided much difficulty in trying to distinguish which acts are constitutional and which are not. This difficulty was pointed out in Thoburn v Sunderland City Council (2002)8, Laws LJ presented a list of statutes that were believed to be constitutional documents or examples, these included: The Human Rights Act 1998, Bill of Rights 1689, The Magna Carta 1297 etc. However, this brings to light other statutes which could also be debated as constitutional, such as the Constitutional Reform Act 2005 and the 6 McCawley v The King (1920) A.C. 691 7 Jeff King, The Democratic Case for a Written Constitution. in Sir Jeffrey Jowell and Colm O'cinneide (eds), The Changing Constitution (Oxford University Press 2019) 428 8 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

Parliament Act 1911. This debate highlights the uncertainty in the UK of which acts are to be considered constitutional and which are unintended to be. This was further recognised by Sydney Lowe (1904)9 who noted that the “‘British government is based upon a system of tacit understandings. But the understandings are not always understood.” The House of Lords Select Committee then attempted to outline the role of the constitution in the Constitution First Report 10 as being “the set of laws, rules and practices that create the basic institutions of the state and its component and related parts and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.” This therefore poses the question that if the constitution is responsible for outlining the relationship between the individual and the institutions, then how is the individual meant to clarify or even begin to understand this when the UKs apparent constitution and information is scattered across numerous acts and statutes? Having a written and codified constitution in the UK would therefore encompass all these current scattered rules and allows for increased certainty and confirmation for both the institutions and the individuals. To conclude, the case for a written constitution in the UK has been one which has been argued frequently. On one hand having a codified constitution would allow for increased clarification amongst constitutional principles and would also allow higher safeguarding of individuals rights, however a codified constitution can also be seen as rigid. This is a stark contrast in comparison to the UK’s current flexible system which may be seen as more relevant in an evolving and ever-changing modern society. It may best to look at the view that ‘if it isn’t broke, don’t fix it’, the UK constitution in its current uncodified state is still a viable option and is working in today’s society as it always has, by implementing a codified constitution it may deprive Britain of its flexibility. All in all, in the UK it would be advisable to consider a written constitution, or to review the current uncodified constitution and better encompass it.

9 Jeff King, The Democratic Case for a Written Constitution. in Sir Jeffrey Jowell and Colm O'cinneide (eds), The Changing Constitution (Oxford University Press 2019) 428 10 House of Lords Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–02, 11) para 50...