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Is There A Necessity For The United Kingdom To Have A Written Constitution?

Updated: May 27

What is Constitutional Law?

A state's constitutional law serves as its rulebook. It lays out the core values that guide state governance. It outlines the primary governmental institutions and clarifies their interrelationships, such as those between the legislative, executive, and judicial branches. It places limits on the exercise of power by the government and sets out the rights and duties of citizens.

Does the United Kingdom have a Constitution? Contrary to popular belief, the United Kingdom of Great Britain and Northern Ireland does have a constitution however it does not exist as a single document like most other countries. Rather, the British Constitution is a collection of official laws, royal decrees, legal cases, treaties, and statutes. These sets of laws and rules are not codified in a singular written document, thus labelled as an unwritten constitution, which the government of the day will treat as the law. Furthermore, the British Constitution is composed of the laws and rules that create the institutions of the State, regulate the relationships between those institutions, or regulate the relationship between the State and individuals. The British Constitution is loosely tied together like a children’s cardboard sculpture, except one that directly governs 67 million people and influences the law of billions of people through commonwealth nations. After all, the United Kingdom is one of just three democracies without one, which are Israel, New Zealand, and the United Kingdom itself, and they are all unique for lacking a formal codified constitution for today’s modern age. Does the United Kingdom need a written and codified Constitution? The controversy of Britain having a codified constitution is perhaps wrongly put. The real question ought to be, “Why should Britain not have such a constitution?” In September 2010, the Political and Constitutional Reform Select Committee invited the Centre for Political and Constitutional Studies at King's College London, directed by Professor Robert Blackburn, to collaborate on an inquiry into mapping a possible route to codifying the British Constitution. In July 2014 the Committee published its first report which outlined the various arguments for and against codifying the British Constitution. The majority of the paper discussed three alternative blueprints, with the remainder outlining codification preparation, design, and implementation codification. 

The report's goal was to spark and enlighten public discourse regarding prospective codification as we reached the 800th anniversary of the signing of the Magna Carta 1215, which was a treaty signed by King John the First of England under the threat of civil wars. This is arguably the founding constitutional instrument in England before the United Kingdom was formed upon The Act of Union 1707, whereby Scotland united with England thus forming the United Kingdom of Great Britain. Shockingly, after 800 years of unwritten British Constitutions, from the Magna Carta 1215 to the present constitutions, this was officially the first public investigation by Parliament into the issue of a written constitution. 

In this light, the Committee clarified that the purpose of the blueprints was just to visualise and illustrate the codification issue, the unique benefit of these useful models was that they prevented the public consultation process from being reduced to a dry, theoretical academic exercise. Moreover, the publication of prototypes for a codified British constitution is not new. Most recently in 2010, Professor Gordon published one possible draft and in previous years others have been produced, most notably in 1991 by both the Institute for Public Policy Research and the late MP Tony Benn. It should also be remembered that, at least in historic terms, Britain has already experienced an entrenched constitution in the form of the, albeit rather short-lived, 1653 Instrument of Government, together with its somewhat more limited successor, the 1657 Humble Petition and Advice. The Committee made a great effort to stress that it was not taking a position on whether codification was desirable as its blueprints were merely illustrative. In the end, the parliament never introduced a written Constitution of the United Kingdom to this day. In simple words, one of the main purposes of a written, codified, legally binding Constitution of the United Kingdom is to uphold the rule of law. What is the Rule of Law? According to Albert Venn Dicey’s three postulates in his book “Introduction to the Study of the Law of Constitution (1889)”, no man can be punished unless there is a clear breach of law, equality before the law, our rights are safeguarded by common law. The Rule of Law exists because of the relationship between society and rulers and is widely held as a classic work on the nature of statecraft. 

Is it possible to uphold the Rule of Law without a written and codified constitution?​​ On the contrary, the case of Burmah Oil v Lord Advocate is a good example where not even the Supreme Court can overrule the parliament. The House of Lords had awarded compensation for the destruction of oil installations in wartime, the government speedily introduced legislation nullifying the effect of the decision under the War Damage Act 1965. Hence, the decision was overturned by the parliament. The Supreme Court can challenge the law passed by parliament. At the end of the day, the ultimate decision remains with parliament and not the judiciary. Parliament is still supreme and will always be. In accordance with the example I have stated, Dicey's postulates can be used to further support that example. Moreover, even if a written and codified Constitution of the United Kingdom exists, the Parliament may enact any constitution however they want.

Why Parliamentary Sovereignty?

On the contrary, under the controversial Parliament Act 1911 and 1949, the upper house, the House of Lords may reject the same proposed bill by the House of Commons for a maximum of 3 times only. After 3 rejections of the same proposed bill, the bill will be sent straight to the Monarch for royal assent and it is a constitutional convention that the monarch always gives royal assent to any bills passed by parliament. For instance, the last time a bill was rejected royal assent was the Scottish Militia Bill 1708. Hence, the billing process can be easily completed and Parliament may enact any laws at any time. In light of that, this constitutional convention is practiced due to the fact that the House of Commons is a democracy that is elected by the people thus represents the wishes of the commons, thus it would be controversial if the monarch does not grant the wishes of the commons who elected the parliament of the day. The above strongly suggests Parliamentary Sovereignty exists and is strictly practised.

The Rule of Law in Parliament

With all that being said, the scrutiny by both the House of Lords and the House of Commons are crucial components in keeping the government accountable over Rule of Law concerns and ensuring that proposed legislation does not violate Rule of Law principles. Parliament plays a major role in safeguarding the rule of law in the UK's constitutional structure. The 

employment of the rule of law as a point of reference in parliamentary proceedings has, surprisingly, not been the subject of any systematic evaluation or analysis, although Parliament places a high value on it. Furthermore, the ministerial code, is a written document that sets out standards of conduct and how they discharge ministerial duties, unenforced by law, yet strictly practised by cabinet ministers. On 4th March 2020, Home Secretary Priti Patel received fresh bullying allegations against Home Office’s most senior servant, Sir Philip, which Priti Patel was accused of breaking the ministerial code. Under the code, it mentions "Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated". However, the prime minister at the time, Boris Johnson, strongly argued Priti Patel did not break the Ministerial Code, thus she did nothing unlawful. On the contrary, it was reported that an official in the Department for Work and Pensions received a £25,000 payout after making bullying claims during Ms Patel's time as an employment minister. This event indirectly suggests parliament upholding the Rule of Law under parliamentary sovereignty, even with a non-legally binding written document. Why does the United Kingdom not have a written constitution? 

Having a written and codified Constitution of the United Kingdom may have a higher probability of limiting the members in power and upholding the Rule of Law. However, as some might say, “If it ain't broke, don't fix it”, as the current unwritten constitution is working just fine. Even if a written constitution is imposed, the parliament of the day may enact the constitution anyway and any time they wish. At the end of the day, parliament will have all the power to enact any constitution to their liking, whether written or unwritten, since parliament indirectly controls all the branches of the constitutional role of separation of powers, which are legislation, executive, and judiciary.

Written By: Benjamin Chung Min Hun

Edited By: Nicole Gan Ni Khe

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