The Benefits Of Uncodified Constitution For The Uk

A constitution is a system of Laws that make up the structure and designation of powers of organisations of the state, and laws that oversee the relations of the various state organisations to one another and to the private citizen.

Almost every country has a codified constitution, the exceptions being the United Kingdom, Israel, and New Zealand.

The UK has currently adopted a constitution in an uncodified form, this means that our laws are not entrenched and not found in one document, but throughout “ordinary” English law and are formed of Acts of Parliament, court judgments and conventions. Brazier states that ‘The British Constitution is written, but it isn’t codified into a single official document’. It could be argued that this form would be better suited for the citizens of the United Kingdom because, if we were to adhere to a constitution that had been in place for a very long time it would be considered to be out of date and not necessarily appropriate for modern day usage due to the fact that the constitution may not reflect the current views of the time period.

Many constitutional experts have argued that the UK does not actually have a constitution, Thomas Paine argued that our “constitutional rules that existed had been made by the Government.”, but ‘A Constitution is not the act of a government, but of a people constituting a government’. Here Paine explains that our current uncodified constitution is illegitimate because power has not been allocated by the people, but decided by the rulers (the King, the King’s ministers and Parliament) themselves. Whereas the American constitution was written by the people’s representatives. According to Ridley, there are four essential characteristics of a constitution, the first being it must have existed before a system of government. This is clearly not the case in our current system as the Supreme Court in the UK was created by the government, not by a constitution.

Our current uncodified constitutional arrangement is seen to be more flexible and has laws that can be easily adapted/amended to the changing circumstances of the time.

Since we do not have a definitive “group” of constitutional laws, no Act of Parliament has a higher legal status than any other Acts due to supremacy of Parliament. This can cause difficulties where there are conflicting Acts of Parliament. In a situation like this, the later Act will repeal the earlier Act that it is in conflict with. However according to Ridley’s essential characteristics of a constitution, this current arrangement further supports the view that the UK doesn’t actually have a constitution because we do not have a form of law which is more superior than ordinary laws.

With a codified constitution, laws are entrenched this means that constitutional laws would require much more strict procedures for amending them compared to ordinary law, and amendments would be under greater scrutiny. Under our current system, it would not be legally possible for laws in the UK to be entrenched as it would go against the continuing supremacy of Parliament outlined by AV Dicey that Westminster Parliament is the supreme law-making body – it can make or unmake any law whatsoever. This goes against Ridley’s essential characteristics of a constitution further supporting the argument that the UK does not have a constitution in substance, only in name.

I think that a codified constitution would not really fulfil its purpose as most recently the situation in India serves as an example, where the BJP (Bharatiya Janata Party) government revoked Article 370 of the Indian constitution on the 5th August 2019, stripping the state of Jammu and Kashmir of its autonomy. This crucial part of the Indian constitution allowed the aforementioned state its own flag as well as the right to its own constitution and freedom to make their own laws. The government ordered tens of thousands additional soldiers to be deployed within Kashmir. Thousands of Kashmiri citizens protested against the revocation of Article 370 on the 9th August 2019. A BBC news article states that “the BBC witnessed the police opening fire and using tear gas to disperse the crowd. Despite that, the Indian government has said the protest never took place.”. Along with the revocation of Article 370 came a communication blackout where internet services and mobile phone services were rendered useless until the 15th of October 2019 where mobile phone connections/services were of use again however internet services still remain suspended. The Indian Prime Minister Narendra Modi and his BJP government had violated India’s own constitution. They went against an Indian Supreme Court decision in 2018 that reiterated the Indian High Court decision in 2017 that Article 370 of the Indian constitution was “not a temporary provision”. They fed on the far rights view of Hindu nationalism for their own political gain and went against United Nation resolutions which gives the right of self-determination to the citizens of Jammu and Kashmir. The Supreme Court of India has yet to act.

As seen in the UK when the Prime Minister Boris Johnson decided to prorogue parliament at a crucial time in the Brexit process, the UK Supreme Court acted swiftly when the case of Miller v. The Prime Minister was heard. The Supreme Court said “It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks … It follows that the decision was unlawful”. It could be argued that India has a much slower and inefficient legal system compared to the UK’s which is why they have not yet acted upon this issue. In my opinion this shows that even countries that do have an uncodified constitution, still have similar issues to the UK – the Prime Minister attempts to do what he wants, not always what is best.

Another issue that comes with adopting a codified constitution is what laws should be made constitutional laws? Then the issue of who would write the constitution arises. It would be nearly impossible for all of us to have an individual say in such an important matter, we would have to have elections to elect representatives on our behalf to have a say in the constitutional laws. If this was to happen, it would most likely end up politicising the constitutional reforms.

In my opinion the UK’s current uncodified constitution is a better arrangement having stood the test of time. Most of our laws in Acts of Parliament are of a constitutional nature anyway. One argument in favour of a codified constitution is that it is more likely the government will be held accountable for its actions, however the judgement of Miller v. The Prime Minister has disproved this argument in the sense that the government is held to account as much as it possibly can, and Ministers cannot act in an unconstitutional way. Furthermore, there are concerns that with a codified constitution, power that would be allocated to unelected judges who do not represent the demography of the general public is undemocratic and may lead to judicial tyranny.