King's Student Law Review

(This is the second part of a three-part series on the codification of the United Kingdom)

By Isabella Reynoso

 

A constitution is essential for the organization of a state as it contains the fundamental principles and rules upon which a state exists (Beatson, 2010). Although the British constitution contains written sources such as statutes, it is one of few in the world that is not ‘codified into a single document, or collections of documents’ (Blick 2011: 9). As suggested by Blick (2011) this is due to the absence of a critical moment in history, such as a revolution or an independence that has made Britain reform the constitution to the extent of codifying it. Moreover, two of the most important principles of the British constitution are that it is based on parliamentary supremacy and the separation of powers. Meaning that Parliament, as opposed to a codified constitution, is the highest source of law in the UK (Dicey, 1959), and that the executive, legislative and judiciary powers shall be separate from each other. Additionally, the existence of only a few other countries in the world that do not have a codified constitution, along with recent constitutional reforms such as the Human Rights Act of 1998 and the Constitutional Reform Act of 2005, have rekindled the debate on whether or not the UK should codify its constitution (McHarg, 2008).

This essay will firstly introduce some of the proposals that have been brought forward for a written constitution. It will then argue that even though it is suggested that codifying the constitution would result in the balance of the power of the executive, further accountability, and stability, the current constitution already holds these positive factors. Additionally, Britain should not adopt a written constitution due to its history, the sources and principles of the constitution, and the practical difficulties that would result from its codification.

The debate about the codification of the British constitution has gone through a number of phases in the last thirty years (Oliver, 1992). However, most recently, suggestions for a radical reform of the constitution into a codified one have surfaced (Oliver, 1992). These have been represented by the drafting of three possible constitutions: the Macdonald Constitution, published with the Liberal Democrats federal green paper, the Tony Benn’s Constitution, ordered by the House of Commons in 1991 and the IPPR constitution. Even though these government white papers and consultation documents display different motivations for the codifications of the constitution, there are some reasons identified to be the most important, such as the balance of the power of the executive, stability, and clarity (Beatson, 2010).

Even though the British constitution is based on the separation of powers, in reality, the composition of Parliament shows that the principle is not upheld. Since the majority of ministers are members of the elected party, the executive effectively becomes part of the legislature, the highest source of law in the UK.

Therefore, it is suggested that the government can easily amend the constitution, and has too much power in its hands. Consequently, one of the suggested advantages of codifying the British constitution and abolishing Parliament as the highest source of law would be the control of the executive power by balancing it and making it accountable. (Beatson, 2010). Furthermore, it is suggested that by introducing a written constitution the control of the executive on the legislature would not effectively amount to changing the constitution. This would be further controlled by the constitutional courts.

Nevertheless, the existence of constitutional conventions, defined as habits or practices that regulate constitutional behaviour and the conduct of public office holders (Bradley and Ewing, 2011), already balance the power of the executive and hold it accountable in a more efficient way than the courts would (Blick, 2011). For example, if the voting population were to refuse to tolerate the breach of a constitutional convention, the executive would probably find itself accused of being illegitimate. As rightly argued by Jennings, if conventions are ignored, it results in severe political repercussions (Chand, 1938). An example of this would be the rejection of the House of Lords to pass the budget in 1909. The Lords’ actions undoubtedly breached a convention, and by refusing to pass a Finance Bill there were political repercussions. After a prolonged crisis, the Parliament Act of 1911 incorporated the convention into primary legislation (Leyland, 2012). Additionally, the statement that “Parliament may pass many laws, which many people do not want, but it never passes any laws, which any substantial section of the population violently dislikes” (Ewing 2004: 741), supports this. It is subsequently argued that constitutional conventions are not legally binding, unclear and therefore the supposed ‘check’ that the current constitution exerts on the executive is not demanding and solid enough (Beatson, 2010). However, the fact that the executive would probably face political difficulties and that it is likely to find itself accused as illegitimate if it breaches an important convention, unquestionably constitutes a valid argument against the allegation that the current constitution neither balances the power of the executive, nor does it hold the executive to account.

Additionally, it is suggested that 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 will be more difficult to amend (Beatson, 2010). Nonetheless, if it were to be codified, it would be a definite step towards depriving the constitution of one of its most important characteristics:its flexibility. The flexibility, which the British constitution is recognized for, is essential “to ensure that the legal framework of the constitution is operated in accordance with the prevailing constitutional values of the period” (Bradley and Ewing 2011: 25). This allows changes to be made to the constitution according to the current political and social circumstances. As supported by Bogdanor, Khaitan and Vogenauer (2007) the lack of a codified constitution means that Britain did not need to formulate a statements or laws Doing so  would quickly render it redundant as a result of political change. For example, a constitution, which was drafted in 1830, would have included declarations about voting rights and the powers of the House of Lords, which would have become redundant after the Great Reform Act of 1832, Parliament(Bogdanor, Khaitan and Vogenauer, 2007). Additionally, the constitution’s flexibility allows the uncomplicated development and change within the constitution, while its legal aspect remains unaffected (Allen and Thompson, 2011). An example of this would be the creation of the ‘Sewel Convention’ in 1999, which prohibited Parliament from legislating on matters that had been devolved to the Scottish Parliament without obtaining its consent beforehand. Therefore, as stated by Professor Ringen in Blick (2011: 9), “The British constitution is a complex and evolving living organism” characterized by its flexibility which proves as an evident advantage for society due to the possibility of the constitution to evolve with society and current political values.

Moreover, one of the most important reasons put forward for the codification of the constitution is the fact 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 (Bogdanor, Khaitan and Vogenauer, 2007). Nevertheless, the practical difficulties that would result from codifying the constitution far outweigh the advantage of making the constitution easier to access for the public. First of all, as stated by Blick (2011), the precise content of the constitution would be difficult to determine. This is due to the unwritten sources of the constitution such as conventions, that while constituting an extremely important source, are mostly undefined and not legally binding. It is suggested that it would be advantageous to gather the conventions on a specific subject together, preventing them from losing their flexibility while accommodating some of the advantages of codification such as clarity and organization (Ewing, 2004). However, it would be an obvious disadvantage to include them in the constitution as legally binding obligations, as they are not only difficult to define but they would also would loose their essence of binding purely on a non-legal basis. Furthermore, the fact that the British constitution is based on parliamentary sovereignty presents another difficulty if it were to be codified. This is supported by Blick (2011) who states that “There is either a direct choice between the retention of parliamentary supremacy or a written constitution”, implying that there would be an obvious clash against Britain’s most important constitutional principle.

Therefore, even though it is suggested that codifying the constitution would lead to further accountability, balance, stability and clarity, the current constitution already holds these positive aspects. Additionally, as stated by Barber in Parpworth (2012) Britain’s constitution has been a success for years and has produced a stable government in terms of democracy, transparency, and human rights. Therefore, the British constitution should not be codified because this would only bring practical difficulties, constituting a substantial step towards depriving the British constitution of its flexibility