The unwritten British constitution: in need of a written one?

A recurrent theme in much of the literature with regards to the United Kingdom’s constitutional and administrative law is that it lacks a codified constitution. There has been much talk of constitutional reform in recent years, which has now inevitably become all the more preponderant. In the absence of a written constitution the dichotomy is further accentuated; many acknowledge the long endurance and resilience of the un-codified UK constitution whilst others observe that a codified constitution of some kind should be adopted, to provide a clearer and more accessible account of the fundamental rules according to which the state is governed. It is indeed an exciting time with the legal foundations of British constitutionalism under change. Bentham eloquently observed that this peculiarity is what makes it a “matchless constitution.”

I.   Sources and Nature of the UK Constitution

A written constitution is “a formal document defining the nature of the constitutional settlement, the rules that govern the political system and the rights of citizens and government in a codified form.[1]” All constitutions provide for the protection of rights and undoubtedly have common elements. Inevitably there is a strong historical and political element involved when one refers to a country’s constitution. During the 19^th Century, in response to popular revolt or war, many European countries were forced to draw up constitutions -this gave birth to constitutions embodying the relationship between the citizen and the state. Great Britain, however, remained untouched by this revolutionary wave that had affected much of the Continent.  In the absence of a written constitution, there are two main sources of constitutional law in Britain: legislation (Acts of Parliament and legislation enacted by ministers etc.) and the common law (case law and historical documents). The Magna Carta 1215, The Bill of Rights 1689, The Great Reform Act 1832, and the 1973 membership to the European Economic Community are milestones in the development of the UK constitution. It should be noted that the British Constitution has indubitably evolved over a long period of time, Lord Butler admitting that, “it is something we make up as we go along.”

Many constitutions seek to avoid a concentration of power in the hands of any one organ of government by adopting a separation of powers and by thus vesting legislative power exclusively to the legislature, executive power in the executive and judicial power in the courts. The concepts of Parliamentary Sovereignty and the Rule of Law are pillars of the unwritten constitution. “The doctrine of parliamentary sovereignty of the UK is often represented as a unique legal arrangement without parallels in comparative constitutional law.”[2] It is imperative to note that no federal system can exist so long as Parliament’s Sovereignty is maintained. Parliamentary Sovereignty is often seen as an obstacle to the establishment of a codified constitution. Therefore, most of those who propose a written constitution envisage constitutional supremacy replacing Parliament and judges being able to rule Acts of Parliament incompatible with the constitution.

II.   Advantages and Disadvantages of a written and unwritten constitution

Unlike France, the UK does not have a written constitution embodied in a single document. Historically, the UK has not had one single document comprising of individual rights and freedoms such as the Déclaration des Droits de l’Homme et du Citoyen de 1789. Instead, its citizens have had to rely on statutory protection or upon judicial protection under common law.  The closest thing the UK has to a Bill of Rights is the Human Rights Act 1998 which incorporates the European Convention of Human Rights 1950 into domestic law. Moreover, the UK has a unitary constitution and thus all power rests in Westminster. The Westminster system of government is therefore not compatible with a written constitution. There have been since the 1970s numerous proposals for a codified UK constitution. The proposition is that the UK should adopt a written constitution explicitly defining the rights of the citizen and the role of the country’s different governing organs.

Whilst most democracies base their institutions on a written constitution in practice however, a written constitution does not contain all the rules upon which government depends. One of the most convincing arguments for a codified constitution is its accessibility; a single document is easier to understand and is more accessible by the public. Those who argue that there is no need for a written constitution often evoke its flexibility and adaptability to shifting values.  It is said that the unwritten UK constitution can easily adapt to global and national political changes and can therefore be kept up to date.  A stark contrast depicting the rigidity of a written constitution is that of the US and its repeated attempts to modify the “gun laws” by altering the “right to bear arms”(2^nd Amendment). By the same token, it has also been accentuated that the US model keeps the Constitution beyond reach of the politicians and interestingly vests power in judges. However, opponents of an excessively powerful judiciary accentuate the fact that judges are unelected.  Empowering these unelected officials and allowing them to interpret laws according to their political views could allow them to strike down legislation they oppose; some argue that this would indubitably have draconian repercussions.

To conclude, many aspects of each system have both their advantages and disadvantages but ultimately the most imperative element is the responsible behavior of the key constitutional players. One is led to ask: can a French citizen claim to be freer than a UK citizen? Since most people in Britain and the world are not even aware that the UK has a constitution, the introduction of a codified constitutional document would serve the nation well, raising public awareness about the way the government works and the political system’s operation at large. Albeit not impossible, 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.

    Christina AVGOUSTI

Pour en savoir plus:

-Bradley & Ewing, Constitutional and Administrative Law (Pearson Longman, 2011)

-Loveland Ian, Constitutional, Administrative Law, and Human Rights: A critical introduction (OUP, 2012)

– UK Constitutional Law Association accessible at <ukconstitutionallaw.org>