A constitution can be defined as a highly important document that is designed to establish the structure of a government and its relationship to the people that live under said government. The idea of a capital-C constitution, or a written constitution, refers to countries such as the United States, where their constitution is a single codified document; ‘We the People’ is a common starting phrase for constitutions of this kind. A few countries such as the UK and Canada have an un-codified, unwritten constitution.
The United Kingdom does not have a written constitution in a traditional sense because its sources can be found in different places, such as common law (case law), legislation and conventions, yet at the same time it is not completely unwritten either. Documents such as the Magna Carta and the Bill of Rights are also part of the UK’s un-codified constitution .One of the key advantages of having an unwritten constitution is it’s flexibility; the ability to make changes without a strict amendment process due to the fact that it is not entrenched .
A prime example of this is the implementation of the Constitutional Reform Act 2005, which established the Supreme Court and changed the role of the House of Lords and the Lord Chancellor. In the United States there has been a total of only 27 approved amendments to the constitution . However making the constitution easy to change can be a disadvantage when considering how easy it may be to repeal or replace certain laws that might be held closely to heart by the citizens. This could happen as the flexibility of an unwritten constitution favours the people in power, because they are the ones making the decisions . Flexibility isn’t the only advantage of an unwritten constitution. The very way that it is constructed supports separation of powers. In a written constitution there might not be a clear definition of what the three powers (legislative, executive and judiciary) are. When an issue of meaning arises, it’s interpretation is found by the highest judicial authority.
This means that those who are members of said judicial authority have the ability to do what they wish, which could lead to them over extending the judiciary’s powers. Unlike in a written constitution that labels separation of powers in a ‘crude’ and ‘clumsy’ manner, the UK’s constitution carefully separates powers in a way that allocates independent operation to certain elements of the state .A written constitution is a more conventional style of constitution, which most nations have chosen to adopt. The main example of a written constitution is the US constitution.
A big strength with a written constitution is that it is clear, deliberate, systematic because it is a direct result of the people’s wishes . An problem that could potentially arise from this is social change; people might not believe the same things in the future. Another advantage to consider with written constitutions is that there are set in stone instructions on how to make big changes. A written constitution is able to state clearly how we are governed, making it easier for the public to understand. I think that a serious issue that may present itself is if the codified constitution is written poorly. This can cause many problems for a country for years, whereas in an unwritten constitution any issue can be made by parliament quickly updating or repealing the problematic or out of date of legislation that is causing the issue.
The quote from Anthony King stating that no constitution is fully written is debatable. I however personally agree with this statement. To use the US constitution as an example, it is considered written but is overlaid with traditions and conventions not held within it. I feel that it is nearly impossible for a constitution to be written in its entirety because of how the social and economic aspects of life are always changing, forcing the the constitution to change too. This is easier to do with unwritten conventions.
A prime example of this in the US constitution is the election of the president. Although written in the constitution as an indirect process, it is done directly due to convention . In relation to constitutional reform an interesting argument is whether the UK government has too much control. For example the government has the final say on individual rights, freedoms and democracy. Some believe that there should be a written constitution that clearly sets out what the government can and cannot do. Without a written constitution it can be said that there is a possibility that the government may act in a way that suits their political interests. This could potentially include things such as referendums or blocking changes that they are against.
A recent example is how the conservative government (the executive) tried to trigger Article 50 of the Lisbon Treaty without an act of parliament . The case R (Miller) resolved this issue. On the other hand the UK has been governed under an unwritten constitution for centuries without serious issues, however the US constitution is a constant source of debate amongst politicians, particularly in relation to the second amendment. Furthermore, actually implementing a codified constitution into UK law would be an incredibly difficult undertaking. Interesting it could be said that the UK’s constitution is written down but in several places as opposed to a single codified document. In fact there has never really been a large demand by the citizens of the UK for a codified constitution and this could remain this way for many years to come.
Alternatively the impact of the Brexit vote may raise significant public awareness of the constitution because Brexit itself, and potentially changing the relationship between Britain the EU . Perhaps an area to give more power to is constitutional conventions. These are an unwritten element of the UK constitution that all parties and those involved in government and law making follow. They non-legal rules so are not enforceable but those who are affected by them often feel obliged to follow them. An example of a constitutional convention is the Salisbury Convention, where the House of Lords will not oppose the second or third reading of government legislation if it was promised in the manifesto. Whether a particular practice counts as a convention can be answered using the Jennings Test, which asks: Is there a precedent? Do the people that said precedent applies to believe they are bound? Lastly, is there a reason for the rule? A problem with constitutional conventions is that they’re not legally enforceable.
Ministerial responsibility is an example that comes to mind. Ministerial responsibility is the idea that a minister will be held accountable for his/her actions and those in their departments. Should there be any wrong-doing by a minister or someone in their department, the minister is expected to resign.In conclusion I agree with King’s belief that the UK lacking a written constitution is not as important as it is made out to be. One key reason being is that in a sense it is in fact written in several areas.
While I feel that a written constitution is definitely not an unreasonable suggestion I think that completely sacrificing flexibility for the constitution is not a good step forward. Alternatively I would suggest making an entrenched ‘part’ of the UK constitution that will safeguard citizen rights and put a solid law making process in place for the legislative to follow, preventing them from manipulating the constitution for political gain.