Introduction It would be an ease to first start off and define constitution with the simplest example one can find. A rulebook. When one buys an iPhone or a machine of any kind, one will first reach out for the rulebook which states everything one needs to know about the item. How to switch it on, how to use it, which buttons to press and which one is not supposed to and every other question there is. The function of a rulebook is similar to the constitution. The word “constitution” usually implies to a set of rules which regulate the working of an institution or rather, a body of a state to define the rights of the citizens of that state, either directly or indirectly.
However, going back to the word that was used earlier, “similar”. The function of a rulebook is “similar” to the constitution but one, which has been an issue that is subject to debates for decades. When a talk about the British constitution arose, people have been very much familiar as to the nature of the United Kingdom constitution and as to how Tony Prosser puts them into words, the British constitution, according to him, has a “common sense” character which makes it hard to be debated in specifically constitutional terms. It is a known fact that in most countries including the United States, Canada and Malaysia, there is one single written document which can be deemed as the “constitution” and it is submitted that it compiles the laws which are most supreme, hence making all the other laws going against it, invalid or null.
Of course, at this point it is easily understood that a written constitution as so, gives the people certainty and the fact that it is entrenched, making them very hard to amend and requires special procedures to amend shows how fundamental it is as a law. Sources of the British ConstitutionLegislations As United Kingdom does have a single document compiling the constitution altogether, it is submitted that the constitution is derived from various sources and from the way it links to what another. Sources can be categorized into a few groups including case laws, the royal prerogative, constitutional conventions but the most common source which the UK constitution originated from is through legislations. Unlike the constitution which has only been here for decades, the UK has had legislation for centuries. For instance, the Magna Carta 1215 which was originally issued by the King John of England(1199-1216) pursuant to the political crisis which he faced during that point of time, which subsequently led him to enacting this act which basically makes everyone’s action including the King himself, subject to the law.
The Bill of Right 1689, on the other hand was enacted post “Glorious Revolution” where the parliament became more powerful than the Crown. The act established that the parliamentary consent, from that point of time, was needed in many governmental actions, hence making all laws subject to the parliamentary consent. Case Laws A case law which established a principle of the constitutional matters is in light of Entick v Carrington where it basically illustrated the role of both the courts and the common in the purpose of protecting the fundamental liberty and held the general proposition that even an executive government must be able to their legal authority in the process of exercising their powers, otherwise should also be held accountable as per everyone else. However, it is crucial to also contrast this case to the case of Liversidge v Anderson whereby the courts basically held otherwise, completely the opposite of the judgment provided in the aforementioned case. Here, the courts held that defendants had rights in this case for emergency reasons. This goes against the basic principle of a constitution in the sense that they should always be “entrenched”.
Constitutional Conventions Constitutional conventions fall under the category of non-legal source of constitution. It can be deemed as political customs. “Custom” is derived from an act which has been commonly accepted by the society for generations. It could be a handshake or the ethics before entering the church, as per a social custom. Political conventions, on the other hand are often made according to the need of time. It is usually never fixed, and it is subject to change in circumstances over time.
For instance, the royal assent. It is never binding, never legally enforced, but it has been, for the longest time, accepted as a binding force by the society which then makes it a constitutional convention. Take for instance, the closest example to home, is the 2009 Perak constitutional crisis which concerned a similar issue as the royal assent. Characteristics of the British Constitution The UK constitution, being uncodified in its nature imposes several unique characteristics that are substantially different compared to one that is codified, or also known as written. One of the most fundamental characteristic in which this nature of a constitution imposes is, according to the law, the Parliament in the UK the most supreme. Its supremacy is on the basis that it holds an extremely supreme legislative power as a body to enact laws.
Since the UK does not have a written constitution, the courts and the people of the UK would seek to rely or depend on Acts of Parliament as the most “fundamental law” rather than the constitution when interpreting them. The courts have also, no obligation to declare any form of acts of parliament void or rather, being contrary to the constitution or even “unconstitutional” simply because the constitution is not codified. Another most associated characteristic of the UK’s uncodified constitution is the existence of political customs or by law, known as conventions however ironically is non-legal and as being phrased by Robert Blackburn in his article, Britain’s Unwritten Constitution, the UK constitution’s nature works as the oil that wheels the relationship working of the ancient institution of state. Take for instance, the working of the office of the Prime Minister is absolutely conventional but it is important and extremely fundamental in ensuring the working of the government. It is important to notice that a lot of vital government actions are conventional including royal assent which takes us to a brief discussion regarding the Monarch and its relation to constitutional matters. The Monarch is one of the three bodies which work alongside the House of Lords and the House of Commons. By law, it is a known fact that the queen can decline a bill passed by the Parliament if she wishes to do so. However, it is a convention for the monarch to automatically approve a bill after it is tabelled.
Despite the fact that she has all the powers to reject it as dictated by the constitution, she is conventionally presumed to always approve a bill which has been tabelled and agreed by both Houses of Parliament. Uniqueness of the UK ConstitutionHowever, despite all the debates which have been ensued over time, why does the UK still keep the nature of the constitution in existence and most importantly why? There are several reasons as to why the UK still keeps its constitution uncodified but the salient reason is regarding its flexibility and the uniqueness it brings from it being flexible. In order to be able to answer this question, it is important to consider each of the several sources of the constitution. First off, the flexibility of the UK Constitution can be illustrated via statutes.
Unlike many countries that have a written constitution which then requires certain procedures including special majorities or arrangements to amend the laws, the UK Parliament can change the “constitution” by simply enacting an act of parliament through the ordinary legislative process, nothing more. This way, the approvals by both Houses of Parliament are needed as well as the royal assent and the statute is good to go. This clearly illustrates the uniqueness to which the UK possesses in having the constitution in this nature. Unlike many other jurisdictions with have a written constitution, there would be need to require 67% votes to be able to amend their constitutions. An example of a country which adopts this system is the United States.
Over the years pursuant to the developmental changes in the UK jurisdictions, it is clearly indicated that many statutes have been easily enacted according to the ordinary legislative process which have been deemed as leaving a “huge impact” to the constitution including the Bill of Rights 1689, Parliamentary Act 1911 and 1949 as well as the European Communities Act 1972. Another benefit to having a UK Constitution that is uncodified is from the significance of having case laws and its relation to constitutional matters. Case laws are known by its nature of flexibility and the judgments of almost all cases are based on the court’s discretion. Judges often deliver judgments as they think is fair in light of the social, economical and political circumstances as well as whether it is best, within the need of time. However, the question is, what does it have anything concerning any constitutional matters? Case laws tend to leave a huge impact on the constitutional in relation to several circumstances including the judicial interpretation of statutes. Take for instance, the case of Ex P Factortame 1991(no 1) whereby it was ruled that the act of parliament contrary to the EU law should be suspended. Here, it is apparent that the nature of the constitution being unwritten gives the judges discretion to add or clarify new concepts to the UK constitution if it is believed to be best. The uniqueness can also be seen in light of the developments at common law which the UK constitution allows.
What is different with having this kind of constitution is that it allows developments to occur at any point of time if it is deemed necessary. One of the very fundamental key principles of the UK constitution that it has established through having this nature is that all actions of the state need legal authority in light of the case of Entick v Carrington. The nature of this constitution also provides for residual freedom which means until and unless an act is clearly prohibited by virtue of a statute, a citizen has the rights do whatever he wishes to do. One of the many key principles of the constitution which contributed to the UK system being a unique one is the constitutional convention. At this point, constitutional conventions are known to have its flexible nature as they are non-legal rules, never binding hence they are not enforceable in courts. They may be created or ignored at any point of time without having to bear the burden of going through the lengthy amendments or special arrangements to which a written constitution has to face when amendments need to be done.
There are many examples of constitutional conventions in the United Kingdom including the known fact that the Monarch will have give its assent to Bills which as past the parliamentary process and that ministers should always be either, individually or collectively held accountable in cases which involve personal misconduct in light of Peter Mandelson or if they wish to publicly oppose a policy which has been proposed by the government pursuant to Baroness Warsi, they must resign. Arguments For Codification of the UK Constitution It is submitted that the existence of a written constitution that is “entrenched” would certainly be incompatible with the doctrine parliamentary supremacy since the basis of a written constitution is of people sovereignty. Hence, this would narrow down the legislative power to enact laws and would only be able to enact something that is within the scope of the constitution. Constitutional statutes are statutes that cannot be impliedly repeal. For instance, the European Communities Act 1972 in relation to human rights. Since it is a statute which affects rights, a later statute will not be able to repeal it. Similar working is illustrated in the case of Merchant Shipping Act. Hence, serving the concept of ‘entrenchment’ whereby the government is bound by rules in the constitution.
This way, statutes will really be protected. The next significant objective in putting constitutional arrangements in statutory footing is reachable within the framework of parliamentary supremacy as well as contributing to the consistency in line with the rule of law. Having the constitution codified certainly gives the advantage of having clearer and a more precise provisions which in turn, are more understandable and accessible to the people, despite the fact that it is a statute law after all, and often requires interpretation. However, but it is submitted that they are certainly better than having judicial law making and having this issue left to the Crown than to elected bodies in light of democracy which absolutely provides a higher legitimacy.
It is important to note that this is not new, and has always been an ongoing process pursuant to statutes including the Constitutional Reform Act 2005 which regulated the role of the Lord Chancellor in light of the separation of powers. Another passing of a statute that can be deemed as important is the Human Rights Act 1998 which directly made the rights stated in the European Convention of Human Rights available for the people in the UK and made enforceable in the domestic courts. Arguments Against Codification of the UK Constitution The most important drawback to regulating the constitution would be the loss of some quality factors to which the UK holds strongly, its flexibility and adaptability. In certain circumstances, issues regarding the rigidity of statutory instruments often give rise to the prevention for the legislative intervention in some cases. Take for instance, the military intervention which rests in the Crown as a part of royal prerogative, but is also wielded by the Prime Minister in practice.
This discretionary power enjoyed by the Prime Minister is seen as excessive in the eyes of the society including the members of parliament, nothing has been done to give the parliament the control and insight to this area. This prerogative power is, hence, left untouched but a convention developed whereby the Prime Minister has an obligation to inform the government, in advanced, if he intends to use military intervention but until and unless it becomes an actual Bill, he does not need to do so. Another point which concerns the drawback to which this arrangement of constitution would impose is in relation to constitutional conventions. Constitutional conventions are regulations which provide the greatest flexibility and adaptability to the system. Currently conventions are not codified and this provides for flexibility in the sense that there is discretion to not follow. In light of the Crossman Diaries Case in 1976, the conventions were not enforced because mere political repercussion arises, but justice could not be served if it was followed. In fresh political circumstances, they still have discretion to not enforce conventions to bring justice.
In addition to that, conventions are brought in by generation and in most cases, could be common during that point of time but will grow becoming irrelevant within time. Hence regulating them would only lead to constant amendments over time. Thus, it is of best interest to leave the constitution uncodified.Consideration for Future Reforms Over the years since the last two decades in the UK, there has been no abrupt change which has arose to cause the Britain to codify its constitution, however, it is of best interest to say that the UK is definitely moving towards it.
It is an apparent fact that over the years, there has been a number of piecemeal legislations which have been enacted indirectly regulating the constitution including the Constitutional Reform Act 2005 and the European Communities Act 1972. In order for a person to actually reserve thoughts on reforms of the constitution, one has to fully understand the working of the constitution which is hardly simple when the constitution is spread on a number of papers. Codifying the entire constitution would not be of anyone’s best interest, but it would be a good option to merely codify a set of certain conventions, especially when they affect the public. The Australia has recently adopted a similar approach which codified constitutional conventions that affect its government. It would be a good idea for the UK to consider adopting this approach to codify a number of conventions but not legally enforcing them since the uncertainty of it is relatively high which makes identifying them a hard task.
For instance, in 1955, Lord Sailsbury was to be appointed by Sir Antony Eden as the Foreign Secretary but was prevented from doing so in light of what was initially deemed as a “convention”. However, it turned out to be a mere generalisation. This shows that the whole area of conventions are extremely uncertain and difficult to identify.
Hence, codifying a certain part of the conventions would be a conceivable option. In the discussion above, it is submitted that some conventions should be codified but not enforced to maintain the nature of the UK constitution which is to preserve flexibility. However, there are conventions that must be followed which otherwise would cause political and legal outrage.
For instance, in 1909 the House of Lords refused to pass a Money Bill and that was a clear breach of the conventions which imposed serious consequences. In circumstances like this, it is safe to say that it is of best interest to codify them as well as enforce them to ensure legal and political stability in a country.