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An "Unwritten Constitution"

Sovereign states all over the world are governed by a constitution, which underpins the laws of the country. Most countries have a written constitution such as USA, Canada and France while the UK, Israel and New Zealand distinctly possess an unwritten constitution. A written constitution is characterized by a complete codification of all the constitutional laws and principles. On the other hand, the unwritten constitution tends to have a bulk of the principles not codified, highly characteristic of the UK constitution. ‘[1]

The reason the English constitution takes this unusual unwritten nature is simple. It is because of England’s historical development. Written constitutions do not happened by accident. A country acquires a written constitution deliberately, and in direct consequence of a political event…’ More often than not, the unwritten nature of the UK constitution has been termed as advantageous. British constitution has more political values than legal values. Citizens and the Parliament of the United Kingdom respects the rule of law and the constitutionalism and it is clearly explaining by two words of [2]Geoffrey Marshall, he argues that ”the most obvious and undisputed convention of the British constitutional system is that the Parliament does not use its unlimited sovereign power of legislation in an oppressive or tyrannical way. That is a vague but clearly accepted constitutional rule resting on the principle of constitutionalism and the rule of law.

As an unwritten constitution, the UK constitution is highly flexible and can easily evolve and adapt to changing times. Modern times necessitate the changing of law in order to accommodate news trends, perceptions, and beliefs. All that is required for the parliament to acknowledge the need for changes and thus continue to make amendments. Consequently, it is observed that traditional laws in the UK constitution do not inhibit progress but are instead subject to change in order to align with changing situations. For example, greater separation of powers as a result of the [3]Constitutional Reform Act 2005 and a reduction in manipulation of General Election outcomes following the Fixed Term [4]Parliaments Act 2011.

Perhaps the most significant modernising changes have been in the area of human rights, with the [5]Humans Rights Act 1998 and the [6]Freedom of Information Act 2000 This characteristic is an entrenchment and considering that there are democratic procedures put in place and that both the judiciary and parliament are there to safeguard the constitution, then it is the best suited to reflect a constantly changing world. The promotion of transparency, accountability, democracy and mandate are distinct advantages of the UK constitution. All of the matters regarding the constitution are addressed by parliament, which is compose of the House of Commons and the House of Lords. The government is subject to being dissolved and therefore has to accountable to parliament. [7]Constitutional behaviour is quidded by this unwritten constitution through conventions, which have led to acts of parliament that mandate the government to resign if it loses after a ‘no confidence’ vote in parliament. The most written constitutions power is given to judges who are not elected and making them highly superior and likely to be swayed by subjective factors. Thus, parliament acts, as a tool for quality control and with constant regulations and monitoring of the government it is able to ensure democratic legitimacy.

Despite the advantages of the unwritten constitution, there are limits to its supremacy. The unwritten characteristic of the constitution may foster likelihood for its politicization. The fact that parliamentary supremacy is considered as the ultimate law and that judicial courts only act to regulate parliament establishes a political reality. This reality underpins the defenceless nature of judicial courts due to the lack of a codified constitution. Furthermore, there are risks to flexible nature of the unwritten constitution. All laws are exposed to whimsical changes by parliament or the government as there is no specified legal status. In addition, it makes it easy for individual human rights to be eroded due to the lack of a strictly enforceable legal system.

It has also been arguing that the unwritten constitution lacks clarity. This is contrary to a written constitution, which is detailed and explicitly addresses limitations of parliament and the government. This makes it easy accessible to ordinary citizens and at the same time promotes transparency in judicial rulings. And we come to a point when we have to argue where is a codified constitution is the best option for a constitutional reform in the United Kingdom. The case for a written constitution is that it would enable everyone to know what the rules and institutions were that governed and directed ministers, civil servants and parliamentarians in performing their public duties. [8]The sprawling mass of common law, Acts of Parliament, and European treaty obligations, surrounded by a number of important but sometimes uncertain unwritten conventions, is impenetrable to most people, and needs to be replaced by a single document of basic law dictating the working and operation of government in the United Kingdom easily accessible for all. Furthermore, it has become too easy for governments to implement political and constitutional reforms to suit their own political convenience, and entrenched procedures to ensure popular and parliamentary consent are required that necessitate a written constitution.

The present ‘unwritten constitution’ is an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process. A written constitution would circumscribe the boundaries of the British state and its relationship with Europe and the world. It would become a symbol and expression of national identity today and a source of national pride. The case against a written constitution is that it is unnecessary, undesirable and un-British. The fact that the UK system of government has never been reduced to a single document is an indication of the success of the Westminster system of parliamentary democracy and the stability it has brought to the country. This is in contrast to most other countries whose written constitutions were the product of revolution or independence.

The unwritten nature of the constitution is something distinctively British, it reminds us of a great history, and is a source of national pride. Contrary to claims that it is out of date, it is evolutionary and flexible in nature, more easily enabling practical problems to be resolved as they arise and individual reforms made, than would be the case under an entrenched constitutional document. While some are concerned about the supposed existence of an “elective dictatorship” and inadequate checks and balances in the political system, there is in fact a wide range of considerable pressures exerted upon ministers seeking to make controversial changes. A written constitution would create more litigation in the courts, and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation, when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges.

There are so many practical problems inherent in preparing and enacting a written constitution, there is little point in considering the matter. As a public policy proposal, it lacks any depth of genuine popular support and, especially given the massive amount of time such a reform would entail, it is a very low priority even for those who support the idea. An attempt to introduce one would be a distraction and might well have a destabilising effect on the country.

Taking all the facts and the statements in to account my point of view is that the openness of the current constitution protect the UK from each and every angle and its strengthen the constitutional values and constitutionalism but it depends on the hand of the parliament to protect them and the judiciary to check and balance whether the parliament use this openness properly.

Bibliography:

  1. Lisa Webley & Harriet Samuels, Public Law, 3rd ed. Oxford: Oxford University Press
  2. Martin Lougnlin (2013), The British Constitution: A Very Short Introduction, Kindle Ed
  3. Geoffrey Marshall (1981), Constitutional Theory (Clarendon Law) (Clarendon Series)
  4. Constitutional Reform Act 2005
  5. Parliaments Act 2011
  6. Humans Rights Act 1998
  7. Freedom of Information Act 2000
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