Malcolm Rivera
The United Kingdom is one of the few democracies in the world without a written constitution. Instead, the UK has an uncodified constitution formed by Acts of Parliament, court judgments, conventions, and customs. The lack of a written constitution means that there are no limits on what Parliament can do, and the government can sidestep parliamentary scrutiny. This has led to accusations of abuse of power, especially during the Brexit process. Some argue that a written constitution would prevent this by imposing limits on Parliament's power and providing a clear set of rules and principles for governance. However, others disagree, stating that a written constitution would not have resolved Brexit-related issues and that the UK's current constitutional order is not deficient. The question of whether the UK needs a written constitution remains a subject of debate.
| Characteristics | Values |
|---|---|
| The UK's unwritten constitution | The UK is unusual in not having a written constitution, instead relying on Acts of Parliament, court judgments, conventions, and customs. |
| Historical context | Since 1688, Britain has not experienced a "constitutional moment" like a revolution or regime change, so its constitution has evolved slowly under relative stability. |
| Pros of a written constitution | It could provide clarity on rules and principles, ensure the government operates within known and enforceable boundaries, and strengthen legal protection of democracy and freedom. |
| Cons of a written constitution | It may not resolve all issues, as evidenced by the Brexit process, and could be challenging to implement in practice, especially regarding limits on parliamentary power. |
| Political support | The Green Party, the Alliance Party of Northern Ireland, and the Centre for Welfare Reform support a written constitution. |
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What You'll Learn
The UK's uncodified constitution
The United Kingdom is one of the few democracies in the world with an uncodified constitution, alongside Israel and New Zealand. The UK's constitution is formed by Acts of Parliament, court judgments, conventions, and customs. While parts of the constitution are written down, they are not compiled into a single document. This means that the UK constitution is flexible and can be easily changed.
Proponents of a written constitution argue that it would strengthen the legal protection of democracy and freedom, and prevent abuse of power. A written constitution would also ensure that the government operates in accordance with rules and principles that are known and enforceable. Additionally, it could provide conditions on when certain powers can be exercised, such as the power to prorogue.
However, critics argue that a written constitution is not a panacea for all political issues. For example, recent evidence suggests that a written constitution would not have resolved the Brexit arguments. Furthermore, the process of constitution-building can be challenging and may not always lead to the desired outcomes.
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The impact of Brexit
The United Kingdom's exit from the European Union, commonly known as Brexit, has had a significant impact on the country's political and constitutional landscape, sparking debates about the need for a written constitution. One of the key consequences of Brexit is the changing relationship between the UK and the EU's legal and regulatory framework. As an EU member, the UK was subject to the supremacy of EU law in certain areas, with the European Court of Justice (ECJ) having the final say on the interpretation of EU treaties and laws. Brexit has led to a complex process of disentangling EU law from UK domestic law, raising questions about legal sovereignty and the role of the ECJ in UK affairs. This has prompted discussions on whether a written constitution could provide clearer guidelines for resolving legal conflicts and defining the boundaries between EU and UK law.
Brexit has also brought to the fore the issue of devolution and the balance of power between the central government and the devolved administrations in Northern Ireland, Scotland, and Wales. The devolution settlements, which grant a degree of autonomy to these regions, were established against the backdrop of EU membership and the rights and obligations that came with it. With Brexit, the UK government has regained competencies previously held at the EU level, known as "repatriated powers." Managing the distribution of these powers between the central government and the devolved administrations has become a complex task, impacting areas such as agriculture, fisheries, and trade policy. A written constitution could potentially outline a clearer framework for devolution and the division of powers, reducing uncertainties and conflicts that have arisen post-Brexit.
Finally, Brexit has had a significant impact on the Good Friday Agreement and the peace process in Northern Ireland. The agreement, which ended decades of conflict, was predicated on the principle of consent and the absence of a hard border between Northern Ireland and the Republic of Ireland, an EU member state. With Brexit, the issue of the Irish border has become a highly sensitive and complex matter. The UK's withdrawal from the EU has raised concerns about the stability of the peace agreement and the potential impact on cross-border trade and cooperation. A written constitution could provide a framework for addressing these complex constitutional issues, ensuring that the peace process is protected and that the unique circumstances of Northern Ireland are considered.
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The role of referendums
The UK's unwritten constitution has been a topic of debate, with some arguing for a move towards a written, codified system. This shift is proposed to bring about greater clarity, enforceability, and limits on the powers of those in governance. However, others argue that a written constitution is not a panacea for all political issues, as evidenced by the recent Brexit debates.
Referendums have traditionally been seen as separate from the UK's constitutional principles, with Clement Attlee famously describing them as "alien to our traditions". The UK's constitution, whether written or unwritten, is intended to uphold certain goods, including civil and political rights, stable institutions, and public confidence and participation.
The absence of a written constitution in the UK means that the Human Rights Act, for example, lacks the same status as a list of fundamental rights in a codified constitution. This means it can be repealed with a simple majority in Parliament. The potential for abuse of power is a concern, and a written constitution could provide mechanisms for scrutiny and limits on the use of ministerial powers.
While a written constitution could outline conditions for when certain powers can be exercised, such as prorogation requiring a two-thirds majority consent from the House of Commons, it is not a foolproof solution. For instance, if the government holds a strong majority, the safeguard against abuse may not be effective. On the other hand, a government with a minority may struggle to obtain the required votes for sensible and good-faith decisions.
The Brexit debates and the friction between the government's right to leave a treaty and Parliament's authority over domestic matters highlight the complexities of constitutional law. While a written constitution could provide greater clarity on the rules and principles of governance, it may not necessarily resolve all disputes, as seen in the recent political climate.
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Protecting citizens' rights
The UK is often said to have an "unwritten" constitution, but this is not entirely accurate. While the UK does have a constitution, it is contained in various documents, including statutes, conventions, judicial decisions, and treaties, rather than a single, codified document. This makes the UK's constitution unique compared to most other countries, with the exception of New Zealand and Israel, which also lack a codified constitution.
The absence of a written constitution in the UK has sparked debates about the protection of citizens' rights. Some argue that a written constitution would strengthen the legal protection of democracy and freedom. It would provide clarity and ensure that the government's powers are limited and regulated in their relationship with citizens. This is especially important given the UK's history of gradual, sporadic constitutional changes, which can lead to unintended negative consequences.
A written constitution would systematise historical social practices and protect rights without altering the current scope of rights protection. For example, the Human Rights Act 1998, which is part of the UK's constitution, grants citizens specific positive rights and empowers the judiciary to enforce them. However, without a written constitution, there are limited checks on the power of a majority government in the House of Commons, which could potentially abuse its position and make changes to the constitution without proper consideration.
Additionally, the UK's unwritten constitution can be confusing and ambiguous, making it challenging for citizens to fully understand their rights and hold the government accountable. Proponents of a written constitution argue that it would enhance citizens' understanding of their rights and enable them to more effectively challenge any abuse of power by the government.
In conclusion, while the UK's constitution has evolved over time and includes important protections for citizens' rights, the lack of a written constitution may hinder the full realisation of these rights. A written constitution could provide greater clarity, ensure the government's powers are limited, and empower citizens to more effectively defend their rights.
Historical context
The UK is often said to have an 'unwritten' constitution, but this is not entirely accurate. While the UK does not have a 'written' or 'codified' constitution in the traditional sense, it does have a constitution that is spread across various documents and sources. This lack of a single constitutional document sets the UK apart from most other countries, with only a few other democracies, such as New Zealand and Israel, sharing this characteristic.
The historical context for this lies in the country's political stability and lack of revolutionary moments. Since 1688, Britain has not experienced a revolution or regime change, such as the American or French Revolution, which typically prompt the creation of a codified constitution. Instead, Britain's constitution has evolved gradually over time, with various statutes, conventions, judicial decisions, and treaties collectively contributing to its formation.
One of the earliest influences on the UK's constitutional principles was the Magna Carta in 1215, which placed limits on the King's power and asserted the notion that the monarch should be subject to the law. This document, along with others like the Human Rights Act and the Scotland Act, contribute to the UK's constitutional framework.
The UK's constitution is also influenced by international law, as Parliament has chosen to cooperate with international organisations such as the United Nations and the European Convention on Human Rights. Additionally, the UK's membership in the European Union until 2020 further shaped the country's constitutional landscape.
While the UK's uncodified constitution has been criticised for being harder to understand, it offers the advantage of flexibility and ease of amendment. This adaptability has enabled significant changes, such as the removal of hereditary peers from the House of Lords and the introduction of the Human Rights Act.
Frequently asked questions
A written constitution is a supreme and fundamental law that is harder to change than ordinary law and prevails over ordinary law in case of incompatibility. It defines the state, proclaims its basic principles, protects the rights of citizens, establishes governing institutions, and regulates the relationship between them.
The UK is one of only a few democracies in the world that does not have a written constitution. The lack of a written constitution means that the use of certain powers goes largely unchecked, presenting a potential for abuse. A written constitution would impose limits on what Parliament could do and would strengthen the legal protection of democracy and freedom.
Some argue that a written constitution is not necessary as the UK's constitutional order has not been shown to be particularly deficient. Additionally, a written constitution would not have resolved recent Brexit arguments as the tension between the right of the government to leave a treaty and parliament's authority over domestic matters would still need to be reconciled in the courts.
While there have been calls for the UK to adopt a written constitution, the next steps are unclear. The UK's unwritten constitution has evolved slowly over time under relative stability, and there has never been a "'constitutional moment' where a written constitution was deemed necessary.
