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:
This essay will argue that while the UK has a constitution that does not generally fall within the concept of a ‘modern’ constitution, this does not mean it is not contemporarily relevant and practical. As an evolutionary system, the UK has one of the most modern constitutional systems. This argument will be made in three parts: part one will discuss the extent to which the constitution is unwritten; part two will focus on how the British system is restrained by its current constitution; and part three will discuss the benefits of such a flexible approach.[i]
A modern constitution is generally interpreted as a system that relies on a codified text which forms the fundamental law, while a traditional constitution is generally uncodified and relies on statutes, case law and conventions to regulate the state. It is important to note that there is a distinction between unwritten and uncodified constitutions, which will be raised in part one.
The Extent of Britain’s Unwritten Constitution
While it is clear that the British constitution is uncodified, this does not mean that the system is unwritten. In fact, all constitutional principles are written down somewhere in statutes and the common law and they are reasonably well understood by state actors, so it is unfair to make such an assumption.[1] As Grimm states:
Every political unit is constituted, but not every one of them has a constitution. The term ‘constitution’ covers both conditions, but the two are not the same. The term has two different meanings. Constitution in the first sense of the word refers to the nature of a country with reference to its political conditions. Constitution in the second sense refers to a law that concerns itself with the establishment and exercise of political rule.[2]
It can therefore be deduced that the British constitution does not fall within the second ‘capital C’ sense[ii] . Britain’s constitution relies much more on the political makeup of governing and how this is established within the common law and accepted conventions. Both modern and traditional systems aim to establish the government and limit its power[iii], so it can be argued that the means they use to achieve this ideal is of little importance.[iv]
Furthermore, Camden CJ establishes that ‘if it is law, it will be found in our books. If it not to be found there, it is not law’ in Entick v Carrington.[3] This further emphasises the requirement, at least for the judiciary[v] , that law is written down. Since no formal distinction is made in the UK between constitutionally fundamental law and other law, it can appear that Parliament has the power to undermine the constitution. This would essentially compromise the fact that the British constitution is written down[vi] , jumbled and confusing to navigate though it may be. While in a strictly legal sense this is possible[vii] , conventions and fear of political scandal provide checks and balances on this type of radical behaviour[viii] . As Tomkins states: ‘Politics really can stop governments from abusing their authority.’[4] The socio-legal ramifications of not observing the constitution would be politically suicidal without a majority backing in Parliament. In this sense, the intended outcome of the protection of fundamental constitutional principles stems from a fear of revolt[ix] , not from an entrenched document. This allows Britain’s traditional constitution to remain relevant in the modern world despite its rather archaic origins[x] .
Drawbacks of the British System
One of the most obvious pitfalls of the British system is its lack of transparency. To the average layperson, the constitution’s uncodified nature makes it hard to navigate through and discern what statutes are constitutionally relevant. Adopting a more codified expression of our system could reinforce rights and protect citizens through knowledge of the law, but it could also make the situation more confusing.[xi]
French philosopher Alexis de Tocqueville writes that ‘in England, the constitution may change continually, or rather it does not in reality exist; the Parliament is at once a legislature and constituent assembly.’[5] His viewpoint revolves around the idea of a constitution being a single coherent document, so it ignores the evolutionary processes that make up the British constitution. However, it is important to note that the British system does appear, in both theory and in practice, to be less predictable and certain. While this makes the role of lawyers more difficult, it promotes a more normative viewpoint of the law. Legal actors are forced to examine the law and compare what is currently is to what it ought to be, spurring change. Though the processes of developing the common law are relatively slow (in comparison to the changes that statutes can bring), change persists.[xii]
Additionally, there is generally more overlap between the branches of government due to a lack of legislation preventing it (in comparison with many nations that employ a written constitution). The separation of powers in Britain is ‘merely a rule of political wisdom’.[6] A major step in resolving these issues was the Constitutional Reform Act 2005[xiii] . However, other issues still persist such as the requirement for significant overlap between the executive and legislative branches of government. It seems that the constitution can be used in any way the current government sees fit to apply it while it holds a majority in the Commons. In this way the British legal system is holding onto its old-fashioned past. [xiv]
However, while adopting a unified, coherent constitution would attempt to resolve these issues, it could also create political and social unrest. Though many modern constitutions attempt to create, protect and uphold rights, if a constitution is drafted by a government that has majority power in Parliament, existing prejudices and injustices could be further ingrained within the state.[xv] Furthermore, the doctrine of parliamentary sovereignty would not only be undermined, but completely ignored. A question must be asked whether it would even be legally possible for a Parliament to entrench a constitution in law[xvi] . If it cannot, the intention of creating such a piece of legislation is futile. If it can, a codified constitution would be binding on future parliaments, potentially threatening democracy and centuries of relative political stability. [xvii] As King argues, a constitution does not have to be written in one single document to be legally effective.[7]It is the way that a constitution is enforced in practice that matters, not how it was created or how it should work in theory[xviii]. The current constitutional system in Britain already works effectively, so why change it? [xix]
Benefits of the British System
Britain’s evolutionary system is highly flexible in comparison to systems that have a codified Constitution. The only limiting factor of parliamentary sovereignty is a requirement that it cannot bind its successors with the legislation it enacts. Therefore, constitutionally significant legislation can be passed, or revoked, the same way as any other Act would be. This enables the law to address pressing constitutional matters easier than other more rigid systems.
To continue, the required spending [xx] and lack of public interest make wholesale modernisation virtually impossible to justify when the current system functions as effectively as it does. [xxi] Attempting to pass such a radical change through the legislature would be tough because of both the legal and socio-political ramifications of such a shift in political and legal power.[xxii]
The definition of modern is ‘of the present time or recent times’.[8] The founding of the Constitution of the United States of America dates back to 1789, with its most recent amendment successfully made in 1992. A capital C constitution, such as that of the USA, can only ever reflect the society it was intended to serve, not of how it will evolve over time. [xxiii] It could therefore be said that the systems that are generally regarded to be modern constitutions are not, by definition, modern at all. Surely as a ‘living’ system the British constitution is of the present times, unlike the American Constitution which is notoriously difficult to amend and keep up to date.[9] [xxiv]
Conclusion:
In conclusion, it can be said that the flexibility of the British constitution allows it to adapt and evolve with time in a much easier fashion than constitutions that rely on a constructed text, making it by definition, modern. It seems clear that the British constitutional system would not benefit from veering from its ‘traditional’ roots in favour of adopting a more ‘modern’ style constitution. Such radical change is unnecessary as evolutionary change is ongoing within the British constitution.
Feedback:
Grade: 55
What was done well:
Your essay demonstrates good knowledge of the materials and issues. It is also well-organised; your use of headings is particularly good. Your essay also has a consistent argument throughout, which is to be commended. There are some interesting points made, such as the protection of constitutional principles stemming ‘from a fear of revolt’. Also, your introduction is well-written.
What is needed to improve:
Your essay contains too many unsupported assertions—see my comments. To cite one example, you claim that adopting a codified constitution would lead to political/social unrest and threaten democracy. This is quite a strong claim, but you don’t explain why such dire consequences would result. By not substantiating your claim, you end up undermining it. You should ensure that every claim is supported by examples/evidence/further elaboration.
Further, your discussion of the US constitution is quite lacking. The mere fact that it resists amendments does not mean that it cannot adapt to modern needs. Same-sex marriage was legalised by the Supreme Court based on constitutional interpretation—is this not modern? While I understand that this is not in the required reading, you should remember that your exam will be marked by constitutional law experts; hence, a bit of research into the point that you want to make would be warranted.
References: [1] Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal Murkens, Public Law: Text, Cases, and Materials (4th edn, Oxford University Press 2019) [2] Dieter Grimm, Constitutionalism: Past, Present, and Future (Oxford University Press 2016) 3 [3] Entick v Carrington [1765] EWHC J98 (KB) (Camden LJ) [4] Adam Tomkins, Our Republican Constitution (Oxford: Hart Publishing 2005) 3 [5] Alexis de Tocqueville, Democracy in America (Saunders and Otley 1835) [6] Committee on Ministers’ Powers (1929) [7] Anthony King, Does the United Kingdom Still Have a Constitution? (London: Sweet & Maxwell 2001) 3 [8] ‘modern’, Oxford Dictionary of English (Oxford University Press 2015) [9] Walter Bagehot, The English Constitution (Chapman and Hall 1867)
Marker Comments:
[i]Very good introduction: short, concise, to the point. [ii]The quotation does not talk about ‘capital C’ sense. [iii]Is limiting government power really the aim of the traditional system? How can it do so without a codified text? [iv]This is a bit too quick. You haven’t established how a traditional constitution restrains governmental power, whereas it’s much clearer how a codified one does the same. So it may make a significant difference, for the purpose of limiting government, whether there is a text or not. [v]This is not what Entick laid down. The point is that the executive cannot take actions unless expressly authorised by law. [vi]I don’t understand. How does the previous sentence do this? [vii]I’m lost. What is possible? [viii]What radical behaviour? [ix]Revolt from whom? [x]There is a good point somewhere in here. It’s just hard to glean it due to the series of confusing sentences I pointed out above. [xi]How? [xii]Interesting but unsubstantiated point. How does change come about? What’s it got to do with the constitution? [xiii]What did it do? [xiv]Is this the crux of the problem, though? State the problem in clearer terms. [xv]How? [xvi]Good question, but why would it not be legally possible? You’re not taking this point far enough. [xvii]This is a bit melodramatic. How can the mere existence of a document that binds future parliaments threaten democracy? These ideas need to be unpacked. [xviii]Okay, but how does it work in practice? There are lot of unsupported assertions here. [xix]I can think of a few reasons: 1. It’s a mess. 2. There’s no agreement on whether a constitution even exists. 3. The ‘constitution’ does not afford strong protection of rights. Ending sentences like this do not help reinforce your point/argument! [xx]Spending of what and on what? [xxi]You haven’t explained how the system is effective. [xxii]What are the ramifications? [xxiii]This is debatable. Racial equality was read into constitutional rights by the Supreme Court. I highly doubt that the constitution was meant to serve black people at the time it was brought into force! [xxiv]You are citing a book written in 1867 for this proposition. Ironic!
Comments