Jonah Patel
Vernon Bogdanor, one of the UK's foremost constitutional scholars, has written extensively on the British constitution, including the book The New British Constitution. In it, he argues that Britain is in the process of converting its uncodified constitution into a codified one. Bogdanor identifies two key reasons why the UK has no codified constitution: the lack of a 'constitutional moment' and the doctrine of parliamentary sovereignty. He suggests that the process of constitutional reform will involve creating new forms of democratic engagement, such as proportional representation and the use of referendums. Bogdanor also highlights the advantages of a codified constitution, such as increased stability and a clearer account of the rules and principles governing the state. However, he acknowledges the practical difficulties and potential loss of flexibility associated with codification.
| Characteristics | Values |
|---|---|
| Britain is one of three democracies without a written constitution | Britain, along with two other democracies, does not have a written constitution |
| Historical reasons | Britain never had a "constitutional moment" |
| Conceptual reasons | The primary constitutional principle has been the sovereignty of Parliament |
| Gradual conversion | Britain is in the process of converting an uncodified constitution into a codified one |
| Types of codified constitution | A lawyer's constitution would be long and detailed, while a people's constitution would be short and open to interpretation |
| Practical difficulties | Determining the precise content of the constitution would be challenging due to undefined and non-binding unwritten sources |
| Flexibility | The lack of a codified constitution allows for uncomplicated development and changes, ensuring the legal framework aligns with prevailing constitutional values |
| Accessibility | A written constitution would provide a clearer and more accessible account of the fundamental rules and principles governing the state |
| Power to the people | A written constitution could divest power to the people, moving away from the idea that power stems from the Queen-in-Parliament |
| Constitutional reform | Brexit has exposed tensions in the British constitution, potentially requiring wide-ranging constitutional reform |
Explore related products
$9.99 $18.95
What You'll Learn
The UK's uncodified constitution
The UK is one of only three democracies with an uncodified constitution. There are two main reasons why the UK has no codified constitution. Firstly, there has never been a 'constitutional moment' in the UK's history. Unlike many of its counterparts in Europe and the USA, there has never been a time when the framework used to govern the country has required clarification. For example, when the Parliament of the United Kingdom of Great Britain was created following the 1707 Act of Union, it remained located in London and adopted many of the characteristics of the existing English Parliament. Secondly, the doctrine of parliamentary sovereignty means that the primary constitutional principle of the UK has been the sovereignty of Parliament, or "what the Queen in Parliament enacts in law".
The lack of a codified constitution in the UK has some advantages and disadvantages. On the one hand, the UK's constitution is flexible and can evolve with society and current political values. For example, the creation of the 'Sewel Convention' in 1999 prohibited Parliament from legislating on matters that had been devolved to the Scottish Parliament without obtaining its consent beforehand. On the other hand, the UK's constitution is at the mercy of precedent, and there is no constitutional court or established authority to determine what was actually done in the past or whether it remains relevant.
Some have argued that the UK should move towards a codified constitution. One of the most important reasons put forward for the codification of the constitution is that it would provide a clearer and more accessible account of the fundamental rules and principles according to which the state is established and governed. Additionally, by codifying the constitution and having an entrenched document as the highest source of law instead of Parliament, the constitution would be more stable as it would be more difficult to amend.
However, there are also practical difficulties and disadvantages to codifying the UK's constitution. First of all, the precise content of the constitution would be difficult to determine due to the unwritten sources of the constitution such as conventions, which are mostly undefined and not legally binding. Additionally, codifying the constitution would deprive it of its flexibility, which is essential to ensure that the legal framework of the constitution is operated in accordance with the prevailing constitutional values of the period.
The Constitution and God: A Written Relationship?
You may want to see also
The doctrine of parliamentary sovereignty
The notion of parliamentary sovereignty has been challenged over time, particularly with the Parliament Act 1911, which changed the nature of what was meant by parliament. While legally, parliament remained sovereign, the "share of sovereignty" of the Commons increased. The sovereignty of the Parliament of the United Kingdom has also been questioned in relation to the 'supremacy' of EU law, with the 1972 European Communities Act allowing domestic courts to disapply legislation enacted by Parliament if it conflicted with EU law.
Some have argued that the sovereignty of parliament is being eroded and that the power of judges is increasing. However, critics of the doctrine of parliamentary sovereignty argue that it conjures images of unconstrained power, which is not the reality. Parliament is still bound by certain limitations, such as the need for a supermajority to make changes to the constitution.
Checks and Balances: A Constitutional Cornerstone
You may want to see also
The flexibility of an unwritten constitution
The lack of a codified constitution means that Britain did not need to formulate statements or laws that would quickly become redundant as a result of political change. For instance, a constitution drafted in 1830 would have included declarations about voting rights and the powers of the House of Lords, which would have been superseded by the Great Reform Act of 1832.
The British constitution is recognised for its flexibility, which allows for the uncomplicated development and change within the constitution while its legal aspect remains unaffected. This is in contrast to a codified constitution, which would be more stable as it would be more difficult to amend, but would also be less able to adapt to changing circumstances.
The practical difficulties of codifying the constitution include determining its precise content due to the undefined and non-legally binding nature of some of its sources. It is suggested that gathering conventions on a specific subject together could prevent a loss of flexibility while accommodating some of the advantages of codification, such as clarity.
While there are arguments for and against codifying the British constitution, the flexibility of the current unwritten constitution allows it to adapt to changing political and social circumstances.
Constitution's Country of Origin: Where Democracy Was Born
You may want to see also
Explore related products
The potential for a people's constitution
Vernon Bogdanor, a Professor of Government at Oxford University, has written extensively on the topic of Britain's constitution, including the book "The New British Constitution". In it, he argues that Britain is in the process of converting its uncodified constitution into a codified one. He identifies two key reasons why Britain has lacked a constitution: the absence of a "constitutional moment" in history and the doctrine of parliamentary sovereignty.
Bogdanor suggests that the process of constitutional reform should involve creating new forms of democratic engagement to ensure that constitutional forms align with social and political forces. He advocates for divesting power to the people, proportional representation, and the use of referendums and citizens' assemblies. While this may increase democracy, it could also lead to longer election processes.
The potential for a "people's constitution" in Britain, as opposed to a lawyer's constitution, is a key aspect of the discussion. A people's constitution would be short and broadly worded, allowing for interpretation by the courts, while a lawyer's constitution would be long and highly detailed. Bogdanor and his co-authors, Khaitan and Vogenauer, argue that a written constitution would provide a clearer and more accessible account of the fundamental rules and principles governing the state. They also suggest that it could help resolve issues arising from Brexit, which has exposed tensions within the British constitution.
However, there are also practical difficulties and potential disadvantages to consider. Determining the precise content of a written constitution would be challenging due to the unwritten sources and conventions that make up the current constitution. Additionally, codifying the constitution would reduce its flexibility, making it more stable but potentially less able to adapt to changing political and social circumstances.
Policing in Early America: Constitution and the Law
You may want to see also
The case for a codified constitution
Britain is one of only three democracies without a written constitution. Instead, the UK relies on an amalgamation of statutory enactments, judicially established precedents, and regulatory provisions, constituting an uncodified constitution.
There are two key reasons why the UK has no codified constitution. Firstly, there has never been a 'constitutional moment' when the framework used to govern the country has required clarification. Secondly, the primary constitutional principle of the land has been the sovereignty of Parliament, summed up in the phrase "what the Queen in Parliament enacts in law".
However, there is a strong case for enacting a codified constitution. Firstly, it would provide a clearer and more accessible account of the fundamental rules and principles according to which the state is established and governed. Secondly, it would be a step towards divesting power to the people, as in many other constitutions, from "We, the People", rather than the Queen in Parliament.
Additionally, by codifying the constitution and having an entrenched document as the highest source of law instead of Parliament, the constitution would be more stable as it would be more difficult to amend. This would be a definite step towards depriving the constitution of one of its most important characteristics: its flexibility. However, this could also be seen as an advantage, as it would allow the constitution to evolve with society and current political values.
Furthermore, recent events such as the expenses scandal and Brexit have exposed grave defects in the British constitution and exacerbated tensions lying at its heart, potentially calling for the implementation of wide-ranging constitutional reform.
Japan's Constitution: Exploring Its Written or Unwritten Nature
You may want to see also
Frequently asked questions
A written constitution would provide a clearer and more accessible account of the fundamental rules and principles according to which the state is established and governed.
The flexibility of Britain's current constitution allows it to evolve with society and current political values. Codifying the constitution would deprive it of this flexibility and only bring practical difficulties.
Bogdanor argues for divesting power to the people and advocates for proportional representation, primaries to select parliamentary candidates, and the increased use of referendums and citizens' assemblies.
Bogdanor argues that Brexit has exposed tensions lying at the heart of the British constitution, potentially necessitating a move towards the adoption of a "written" constitution.
