UNWRITTEN CONSTITUTION

According to Professor K C Wheare a constitution is “the whole system of government of a country, the collection of rules which establish and regulate or govern the government.”[1] Thomas Paine’s view on the constitution reveals more complex ideas as according to him “…a government without a constitution is a power without right...A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.”[2]

A constitution therefore establishes the rules providing for the powers, functions and limits of the three organs of the government (that is, the legislative, executive, and judiciary), the fundamental rights of citizens as well as the relationship between the government and citizens.[3] In many countries these rules are stated in a single document. In the UK however, the constitution is derived from many written and unwritten sources that are both legal and non-legal. It is therefore more accurate to term the British constitution as “uncodified”.

UNWRITTEN CONSTITUTION

In order to understand why UK does not have a codified constitution, it is necessary to understand UK’s historical, legal, and political landscape. Despite having gradually evolved over centuries, the organs of the UK have not actually experienced a sudden drastic change or break where a complete overhaul has been needed. Parliament sovereignty was established so any new changes that occurred were easily dealt with Acts of Parliament.

One of the main advantages an uncodified constitution offers is flexibility. With an uncodified constitution, it is easy for the legislators to make and unmake laws of constitutional importance. In the UK there is no special procedure to repeal or amend statutes of constitutional importance other than getting a simple majority in Parliament. For example, in the UK, the landmark case of Somerset v. Stewart[4] aided by a well-organized abolitionist movement ended the practice of owning slaves in England and contributed to Parliament enacting the Slavery Abolition Act in 1833. In the words of Hillaire Barnett, “In the UK, constitutional changes can be brought about with the minimum of constitutional fuss.”[5]

In contrast, countries with a written constitution have to jump through several hoops before amendments to the constitution can be made. This point can be viewed differently in that the whole idea of a codified constitution in the case of UK may be against the model of democratic representation.

Another merit of an uncodified constitution is the sovereignty of Parliament. The UK Parliament is the sole legislative body and cannot be bound by its predecessors nor can it bind its successors.[6] However, in countries with a written constitution, there is usually a constitutional court that will decide on the validity of government policies and legislation. This will inevitably lead to the judiciary being dragged into matters pertaining politics. A clear example of this is the case of Roe v Wade[7] which is a landmark United States Supreme Court case that held that abortion was protected under the 14th Amendment. Other than the obvious issue of abortion, this decision also fuelled debates regarding the lines (or lack thereof) between constitutional adjudication and legislating. The crux of the matter in the UK is simply that judges are not elected by the people the way ministers are and cannot be said to truly represent the people. Therefore, there is no reason that they should act in the capacity of legislators.

The potential arbitrary protection of citizen rights is another flaw in having an uncodified constitution. This is because the rights of the citizens are not entrenched in a Constitution. In the UK it exists in the form of a statutory Act (Human Rights Act 1998) that can be very easily repealed by a simple majority in Parliament. According to A.V. Dicey the rule of law is the best protector of fundamental rights and a Bill of Rights is unnecessary so long as there are courts.[8] This coupled with Parliament’s legislative power constitute UK’s fundamental rights. This is illustrated by the case of Entick v Carrington.[9] In this particular case, the King’s Chef Messenger was ordered by the Secretary of State to search Entick’s residence by force. Entick was suspected of writing and publishing seditious material. Entick sued for trespass. The court held that the Secretary of State had no right under statutory or common law to issue a warrant for search and found in favour of Entick. It can be counter-argued however, that the existence of an entrenched document does not guarantee a protection of human rights and to think so is to be overly optimistic. A written constitution is only as valuable as the government of the day deems it to be.

When weighing the pros and cons listed above in relevance to the UK particularly, it must be highlighted that the issue is rather complex and is not limited to two polar options of codifying or not codifying. According to Rodney Brazier, there are four options to be considered when evaluating the need for codification.[10] One option is to consolidate efforts in constitutional reform of the UK’s uncodified constitution has been developed over time to become one of the most successful governing systems in the world as evidenced by its political stability and efficient executive, legislative and judiciary systems in place. It is dynamic due to the flexibility accorded by an uncodified constitution and this has enabled it to grow and change bit by bit. It has its fair share of faults but then again, so does every system. The UK has a system that works well despite these flaws and its long history is proof enough that this is a system that rectifies itself before it becomes too inefficient or unjust. Furthermore, codification of the UK constitution is a task of unimaginable magnitude and will consume a lot of time and money that I dare say, is rather unnecessary in the current situation. The only matter with any sense of urgency is regarding the rights of UK citizens, as any country that is truly democratic will ensure its citizens’ rights are always protected.

FOOTNOTES

[1] Prof. K. C. Wheare, Modern Constitutions, Second Edition, (Oxford University Press, 1966), p.1. [2] Thomas, Paine, Definition of a constitution: by Thomas Paine, Secretary to the Congress of the United States of North America, (Ann Arbor, Michigan: University of Michigan Library 2011 June) [3] G. Marshall & G.C. Moddie, Some Problems of the Constitution, 5th edn., (London: Hutchinson, 1971), p. 13-14. [4] (1772) 98 ER 499 [5] Barnett, Hillaire, Constitutional and Administrative Law, (Routledge, London, 2011) [6] Dicey, A.V., Introduction to the Study of the Law of the Constitution, (1885),10th edn., (London: Macmillan, 1959) [7] Roe v. Wade, 410 U.S. 113 (1973) [8] Dicey AV, Introduction to the Study of the Law of the Constitution (1885), 10th ed, (London: Macmillan, 1959). [9] [1765] EWHC KB J98 [10] Rodney Brazier, Constitutional Reform, 2nd edn., (Oxford: OUP, 1998)