Constitutions perform three main tasks: they provide for the creation of the institutions of the State; they regulate the relations between those institutions and one another; and they regulate the relations between those institutions and the citizens they govern. 1 Many believe that the United Kingdom's constitution is now outdated with an inherent lack of overall agreement between its statutes, common laws and conventions.
The constitution is meant to be the main backbone on which power, control, order and authority are built upon and maintained by. 2 Considering this, is it now therefore the time for the United Kingdom to adopt a written constitution in order to provide for effective interaction between these formal institutions and those of civil society in the 21st century? In this essay I will first of all differentiate and explain what is meant by the terms 'written' and 'unwritten' with respect to a constitution.
I will then go on to determine the principal characteristics on which the present constitution of the United Kingdom is based and moreover, explore the arguments both for and against the adoption of a written constitution within the United Kingdom taking into consideration any possible advantages or disadvantages that may be apparent within these arguments. The somewhat misleading phrase, 'written constitution' really means 'codified constitution'.
Thus, a written, or codified, constitution is one in which all the principal constitutional rules are written down in a single document named 'The Constitution'. An example of this type of constitution is to be found in the United States Constitution, with its major rules being codified and contained within its seven Articles with their subsequent amendments. 3 In contrast, the constitution of the United Kingdom may be described as being uncodified in the sense that its constitutional rules and principles are located in a multitude of different sources which have not been brought together and codified.
Although many of the rules of the United Kingdom's constitution may be found in law reports and parliamentary enactments, it remains true to say that no comprehensive attempt has ever been made to collect and codify these into a single defining instrument. 5 As has been the case for centuries, therefore, the constitution's principal contents may still be traced to what may sometimes seem to be a myriad of judicial decisions, Acts of Parliament and established conventions. It is in this sense, therefore, that the constitution of the United Kingdom may be defined as 'unwritten'. 6
Perhaps one of the most obvious arguments put forward against the adoption of a written constitution in the United Kingdom today is that, 'If it isn't broken, then don't fix it'. 7 Any attempt to improve on a system that already works is pointless and may even be detrimental. Written constitutions do not happen by accident. Most states promulgate constitutions following some momentous development, such as revolution, regime change, war or the attainment of independence. 8 Such moments require the peoples concerned to reassure themselves of the shared values that form the basis of their society by giving themselves new rules for the future.
That happened, for example, when the United States declared her independence from Britain in 1776, when India attained her independence in 1947, when France adopted new regimes in 1946 and 1958 and when Germany adopted a new regime in 1949. 9 The United Kingdom, by and large, has remained free from any such momentous occasion and with its organic constitution has been evolved for hundreds of years in order to suit the United Kingdom. Contained within this is our history and tradition. Therefore, is it wise to halt the progression of our evolvement by writing all our rules and conventions in a written constitution now?
One of the principle characteristics on which the constitution of the United Kingdom is based is the doctrine of Parliamentary Sovereignty. The actual meaning of the doctrine may be best explained with reference to the British jurist and constitutional theorist, A. V. Dicey, who, in 1885, summarized his views in this way: "The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament [defined as the Queen, the House of Lords, and the House of Commons, acting together]…has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.
"Therefore, Parliament can, in law, pass any primary legislation that it chooses. This necessarily means that it can also pass any law which alters, whether incrementally or radically, the nature of the United Kingdom's uncodified constitution. 11 This feature is the foundation of, and underpins, the constitution of the United Kingdom. This is in contrast to the vast majority of all other constitutions.
For example, the legislature of the United States (Congress) or the Republic of Ireland (the Oireachtas) cannot pass any law that they choose. Instead they are legally limited by their formal codified documentary constitutions. 12 This therefore means that within the United Kingdom there is no such thing as constitutional guarantees due to the fact that no legislation is given any special status whether it be deemed to be constitutional or not. Notice that this is quite unproblematic in the United States with a written or codified constitution, a sovereign text. The text is logically prior to the legislature.
It confers and distributes the legislative power. If it enshrines constitutional guarantees, the legislature will honour them. It must do so if it is to honour the constitution. The text, not the Parliament, is sovereign. 13 This may be seen as a method of restraining the powers of Parliament and the Executive as these provisions are legally entrenched and as one advantage of having a written constitution. However, this may also be seen as being a disadvantage as a written constitution, by its very nature, is extremely difficult or near impossible to adapt and change.
In the United States, the constitution is the supreme law of the land and Congress lacks the authority to alter it without undertaking the arduous process of amending the Constitution through a procedure that requires the assent of two thirds of both Houses of Congress and three quarters of the States. 14 By contrast, the United Kingdom, having an uncodified constitution, together with the fact that its main characteristic is that Parliament can pass any law that it chooses, may be described as being very flexible in nature and therefore, more advantageous in being able to adapt more quickly to social needs.
The introduction of devolution is a prime example of the flexibility of the constitution of the United Kingdom. A written constitution may well have impeded this process and so would build on the argument for the retention of our unwritten constitution. Referenda were held in Scotland, Wales and Northern Ireland prior to the creation of the devolved institutions for these regions. These referenda, however, were not strictly necessary in order to pass the relevant legislation.
But the critical constitutional point will remain that those new institutions will owe their authority and, indeed, their existence to the Parliament of the United Kingdom as it still continues to be a unitary state. It established them; it could, as a matter of law, amend or take away their powers at any time through ordinary legislation; it could, legally, abolish any of those institutions at any time. 15 This degree of flexibility may also be seen to be in some way counterproductive and so develop the argument for the adoption of a much more rigid written constitution.
The past few years have been punctuated by the successive passage of legislation designed to counter terrorism. These Acts have cumulatively increased the power of the State to interfere with the rights of the individual with the public policy intention of combating terrorism. 16 This can be clearly seen by the introduction of The Terrorist Act 2006. Amongst other things, this Act extended the length of time that terrorist suspects could be held from fourteen to twenty eight days. Although a government has a responsibility to take steps to protect individuals from terrorism, this does not justify encroaching on individual rights and freedoms.
This runs the risk of alienating individuals and in fact threatens the values which we should be striving as a society to protect. 17 Another central pillar on which the constitution of the United Kingdom is based is the doctrine of the 'Rule of Law'. This is neither a rule nor a law. It is now generally understood as a doctrine of political morality which concentrates on the role of law in securing the correct balance of rights and powers between individuals and the state in free and civilised