Question:
In what sense is it true to say that the UK has an unwritten constitution? Why has it not adopted a modern type of constitution? What would be the advantages and drawbacks of it now doing so?
Answer:
The British Constitution is peculiar and unique in its entirety with some including French philosopher, Alexis de Tocqueville, suggesting [1]‘'In England, the constitution may change continually, or rather it does not in reality exist’. It cannot be found in a single source but rather, it is derived from multiple from statues and common law to conventions which are unwritten practices. It can be argued that the lack of a written constitution is down to British Exceptionalism, which has allowed for democracy to permeate into Britain by evolution rather than revolution. The current model has proved to be a successful, enabling for many advantages including quick decisive decisions in a rapidly changing and increasingly globalized society where governments are bigger than ever whilst allowing for significant drawbacks such as a weak protection of citizen’s rights.
It is true to say that to a large extent, the British constitution is unwritten but in order to thoroughly answer this question, the definition of a constitution must first be understood. A constitution can be defined in different ways, this essay will use the definition given by S.E Finer, [2]‘Constitutions are codes of rules which aspire to regulate the allocation of functions, powers and duties amongst the various agencies and officers of the government to define the relationships between these and the public’. The constitution does not exist in a single legal document as deeply rooted conventions and political practices that are unwritten and have no legal authority still play a vital piece within the British constitution and political domain. This is where one, such as Hegel, may argue that the [3]‘national spirit’ is captured within a constitution as the inner workings are a reflection and development of that society and it suits the British nation to have conventions that are unwritten but observed by everyone as though they were legally binding. However, the written aspects are not to be neglected. Statues, which are laws passed by Parliament, can be referred to at any given time and are written allowing for certainty. For example, the Bill of Rights 1689 and The Magna Carta 1297, both of which have elements that are still referred to and are relevant in society today. Ultimately, a more accurate view would be that the British constitution is mixed, being both party written and unwritten thus it would be untrue to categorise it as being one or the other. As summarized by Ian Budge, the constitution is [4]‘partly written and wholly uncodified’ meaning that only some aspects of the constitution are written but the constitution cannot be found all together in a single document. In a legal sense, the constitution can be said to be written with judges being able to refer to statues when deciding on cases whereas, in a political sense it is mostly unwritten with British politics largely relying on conventions, practices and customs such as the leader of the party that wins a general election becomes the prime minster. Notably, if the constitution was written like that of the United States, then Parliament would perhaps no longer be sovereign, and a higher status would be given to constitutional laws over ordinary laws which are Acts of Parliament. Moreover, the judiciary as the guardians of the constitution, would be able to strike down Acts of Parliament which it deems to be unconstitutional rather than merely issuing a declaration of compatibility.
To begin the analysis of why the UK has not yet adopted a modern constitution, one must first address the meaning and concept of modern and whether the UK’s constitution fits that definition. Modern constitutions have typically been understood as that which are created, drafted and written in a particular time in history and can be found in a single document, typically following enlightenment as exemplified by the US and French constitutions which were products of revolution. Contrastingly, the UK has not had enlightenment or revolution leading to a constitution being written in a particular moment but has rather incrementally evolved to become what we understand it to be today. Acts such as the Great Reform Act and the Parliament Act of 1918 which gave some women the right to vote can be seen to have allowed for progression and response to public demand. However, one might argue, that modern relates to something in the present and current as opposed to something in the past. Therefore, the UK constitution although largely unwritten, is modern and more up to date then the United States’ constitution which having been written over 200 years ago can be said to be stuck in time. This is demonstrated by the relatively recent Blair reforms including the Constitutional Reform Act which made provision for the creation of a Supreme Court separate from the House of Lords, reinforcing the separation of powers and was arguably in response to growing criticism of the UK’s fusion of powers highlighting a key advantage of the UK not adopting a modern constitution, the flexibility which enables for a greater level of responsiveness to public needs. Walter[5] Bagehot has described the UK constitution as an object ‘in constant change’ which is a key advantage to the debate of whether the UK should adopt a modern constitution, especially as society continues to evolve quicker than ever and faces new challenges that require rapid response from the government. For example, following terrorist attacks in 2017 the government swiftly made amendments in response to the attacks and for national security which is perhaps why the UK has not adopted a modern constitution, because the nature and current model is efficient and flexible to a greater extent then what it would be under a modern constitution. However, this has led to questions about whether the UK constitution is a political constitution, responding to and embodying the changing political circumstances as constitutional changes tend to be accompanied by a political change. This begs the question of whether then, a constitution should even be flexible and whether change is what a constitution needs as change can lead to instability and even abuse of power.
On the other hand, an advantage of it adopting a modern constitution is that it would ensure a greater protection of rights and civil liberties which is particularly important now as governments grow more powerful than ever before. This has been demonstrated through the greater use of technology such as facial recognition and spyware companies such as Pegasus which have been used by governments to target and invade the privacy of citizens such as journalists and activists. Legal constitutionalists would argue then hat a written constitution would better safeguard citizen’s rights through allowing courts to enforce and interpret the constitution, as guardians of the constitution, making them a more effective and stronger check on Parliament as the US Supreme Court is to the Senate. Ultimately, the UK constitution can be said to be modern in the sense that it is arguably the most current and up to date constitution due to its flexible nature which has proved to be a considerable advantage in British politics and society. Notably, a modern constitution would better protect citizen’s rights and liberties which is more important than ever as governments have become more powerful and invasive, especially with technology such as facial recognition which never existed before. However, it is important to note that the UK public has not shown demand for any constitutional change but rather apathy towards it which could be the underlying reason for the reason why the British constitution has remained largely unwritten.
To conclude, the UK constitution remains unusual due to its hybrid composition of both written and unwritten sources, making neither simply written nor unwritten. arguably, this has allowed for considerable benefits including responsiveness to societies changing needs and flexibility which is perhaps the main reason why the UK has avoided revolution and enlightenment. However, as government’s grow to be more powerful and issues become more complex, some would argue that now is the time for the UK to adopt a modern constitution that is written in a single document to better protect rights and clearly set out the separation of powers which has evidently been a growing concern since the 1990’s with the idea of executive dominance becoming more prevalent. Therefore, i would suggest for a partly written constitution with specific conventions relation to the separation of powers and executive powers being codified and written but other aspects of the constitution remaining unwritten as the benefits of flexibility greatly outweigh the advantages of a modern constitution.
Grade: 52
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