Discuss the case for and against a written constitution for the United Kingdom.

1) What is a constitution and why is it needed?

2) What are the different ways to classify a constitution?
3) How is the UK Constitution classified? Written or unwritten? What are
examples of countries that have written and unwritten constitutions?
4) Arguments FOR a written constitution for the UK
5) Arguments AGAINST a written constitution for the UK
Constitutionalism is the doctrine which governs the legitimacy of government
action- in relation to constitutions written and unwritten, it means conformity with
the broad philosophical values within a state. The contents of constitutions revolve
around the doctrine of constitutionalism which suggests the limitation of those
exercising power, the separation of powers, the doctrine of responsible accountable
government and the protection of individual rights and freedoms.
Professor KC Wheare defines the constitution of a state as the whole system of
government of a country, the collection of rules which establish and regulate or
govern the government. An older definition, that of Thomas Paine, states A
constitution is not the act of a government, but of a people constituting a
government, and a government without a constitution is power without right A
constitution is a thing antecedent to a government; and a government is only the
creature of a constitution. This means to say that the constitution sets limits both
to the powers which can be exercised by the government and to the manner in
which they may be exercised- the constitution defines the legality of power.
The United Kingdoms constitution is largely unwritten in character, flexible in
nature, supreme, formally unitary in structure (but with powers devolved to
Northern Ireland, Scotland and Wales and to local government), exhibits mainly but
not completely separated powers, and monarchical. The fact that the United
Kingdoms constitution is largely unwritten has given rise to argument whether or
not a constitution exists in the UK. However in addressing this issue, Sir Ivor
Jennings, author of The Law and the Constiution states, If a constitution means a
written document, then obviously Great Britain has no constitution. In countries
where such a document exists, the word has that meaning. But the document itself
merely sets out rules determining the creation and operation of governmental
institutions, and obviously, Great Britain has such institutions and such rules. The
phrase British constitution is used to describe those rules. Although there is no
single document which could be called the UK Constitution, there are several
documents which are central to the UK constitutional law, such as the Magna Carta
1215, the Bill of Rights 1689, and the Human Rights Act 1998. Basically, the manner
in which constitutional change is effected in the UK will be dependent not upon
clearly defined written rules, but rather, by accepted constitutional practice which
has evolved over time.

A written constitution is one contained within a single document or a series of

documents, with or without amendments, defining the basic rules of the state. The
origins of written constitutions lie in the American War of Independence (1775-83)
and the French Revolution (1789). More recent written constitutions derive from the
devolution of legislative power from previously imperial powers to former colonies
and dominions. For example, in Malaysia, a Commonwealth country, its written
constitution (the Malaysian Federal Constitution) is the legacy of foreign rule, and in
Portugal, Spain and Greece, new constitutions have been adopted to mark the
transition from dictatorship to democracy. As observed by Wheare, the feature
which characterizes all states with a written constitution is that there has been a
clear historical break with a previously pertaining constitutional arrangement, thus
providing the opportunity for a fresh constitutional start. The absence of any such
break in continuity in British history, from 1066 to the current time, more than any
other factor, explains the mainly unwritten nature of the United Kingdom
constitution. Notwithstanding two World Wars, Britain has been stable and has had a
responsible government. By and large, constitutional principles have been abided
by. William Hague once said that there was no need for a written constitution as we
already have internal stability and democratic accountability, and Britain has been
well served by its unwritten constitution.
Over time, there have been many arguments as to whether or not there should be
a written constitution for the UK/the codification of the British Constitution, but
many do not see the necessity for it and are contented with the status quo. For
instance, some argue that there is no pressing need for a written constitution since
the Human Rights Act (HRA) 1998 is arguably a model form of a Bill of Rights. Some
also argue that the process of codifying the British Constitution would consume
much time and money as it would include the employment of a Constitutional
Commission, consultation of experts and publications of consultation documents,
which would be tedious and cost millions of pounds- what more, the end product is
only to bring together whatever documents which are already in the books.
According to Rodney Brazier, the UK has been given rather more of a written
constitution by the addition of sixteen Acts of Parliament which, in whole or in part,
add to the constitution There has been an exponential growth of constitutional
statute law since 1997
Besides, some are against the codifying of the British Constitution because it
would inevitably draw the judiciary into the political arena as judges would then
have to decide on political issues. Lord Falconer in his speech at the British Institute
of International and Constitutional Law Seminar stated: I do not believe that the
public want issues which most of us would regard as political being resolved by the
courts- capital punishment, abortion, racial discrimination- these are issues which
the US Supreme Court has resolved, and which we rightly expect parliament to
resolve. As a written constitution would have to be couched in broad terms and

subject to the courts interpretation, judges would have to act as unelected

legislators- this would be undemocratic since judges are not accountable to the
electorate at the ballot box to be able to overturn the decision of democratically
elected representatives of the people.
Moreover, a written constitution will be enveloped by a wide variety of customary
rules and practices which would adjust the operation of the constitution to changing
conditions. While these rules and practices are easily changed, a written
constitution is not easily changed as many formal procedures would be involved.
The codification of the constitution would thus freeze these rules and practices
from sprouting as they are now in the form of conventions. It has been argued that
the greatest virtue of the British Constitution is its flexibility, which results from the
use of conventions whereby ancient ones can be discarded with ease and
constitutional changes can be brought about with the minimum of constitutional
formality (Hilaire Barnett). However, conventions may also be obviated for less
than worthy reasons. This can be demonstrated by Prof Finer who pointed out that
conformity to the convention of ministerial responsibility no longer rests upon rigid
and faithful practice, but rather upon the meeting of a firm Prime Minister, a
compliant minister and a clamorous party. Should this convention be enshrined in a
new constitution in more certain terms, its offenders would certainly no longer be
able to escape with impunity.
Looking at the other end of the spectrum, there are also several arguments for
the codification of the British Constitution, one of which being that the
parliamentary sovereignty which resulted from the vacuum caused by the absence
of a written constitution results in arbitrariness, as the Parliament cannot be
questioned whatsoever. Before the Republic of Ireland joined the European Council,
a constitutional amendment had to approved by a referendum of the people. In the
UK, while the European Communities Act 1972 was debated at length in Parliament,
it was passed by the same procedure just as any other piece of legislation.
Referendums were held prior to the devolution of powers to Scotland, Wales and
Northern Ireland not as a matter of constitutional requirement, but rather due to
political expediency. There was no doubt, in the Cabinet style government of the UK,
a serious overlap of membership between the executive and the legislature. This is
what Lord Hailsham termed as the elective dictatorship.With the absence of a
written constitution, there are no legally enforceable constitutional limits which bind
this elective dictatorship.
A written Constitution is argued to thus serve as a check and balance mechanism
over the potential arbitrariness by Parliament. It is argued that the HRA 1998 merely
offers nominal protection of human rights and not on the scale envisaged of a
written constitution. With the supremacy of Parliament, the HRA 1998 is not immune
to express repeal. Lord Alexander argues that whilst our rights ultimately may be
enforced at the European Court of Human Rights, the European Convention of

Human Rights itself should be incorporated into a Bill of Right thereby preventing
the need for costly and lengthy trials at Strasbourg which may prove beyond those
who most need them. It is argued that a written constitution would make it an
easier task to educate citizens as to their rights as we need only to point to a
singular text. The present task of having to peruse through the jungle of legislations
is no small feat for an ordinary citizen.
In the High Court, Mr. Justice Sullivan supported a decision to allow Afghan hijackers
to remain in the UK until it was safe for them to return home, and he criticized the
failure of successive Home Secretaries to allow them leave as conspicuous
unfairness amounting to an abuse of power. According to Lord Woolf, such
growing encroachment by the government on judicial independence is a warning
that judges may need a written constitution to protect themselves from further
political interference. In Jackson v AG [2005], Lord Steyn said that the judiciary
might have to qualify the principle of Parliamentary supremacy should
Westminister seek to abolish judicial review of flagrant abuse of power by a
government or even the role of the ordinary courts in standing between the
executive and the citizens. Section 18 of the European Union Act 2011 is an indirect
declaration of parliamentary sovereignty by Parliament itself where hitherto the
doctrine of parliamentary sovereignty is a common law concept.