The where constitutional obligations are to be found

The House of Lords defines the UK Constitution as being “anything that
affects the way we are governed, the balance between the different powers of
Parliament and its associated repositories of powers”.1 In the UK, the
legislative branch (Parliament) is authorised to create the law, the judicial
branch (Judges) interpret legislation and the executive branch (Government) implements
legislation. Britain
is an example of an uncodified constitution, this has become synonymous with unwritten.
However, this is misleading as, elements of the constitution are written. For
example, legislation concerning the role and functions of the local
governments’ relationship with the central government2. When referring to an uncodified
constitution it means it is there is not one all-encompassing document,
labelled “The Constitution”, because of this within Britain there is no simple
way if identifying constitutional law as it is encompassed within ordinary
legislation3.
It could be argued it is unimportant whether or not the UK has an uncodified or
codified constitution for reasons explored in this essay.

 

A codified
constitution is one where constitutional obligations are to be found within one
single text, commonly known as a written constitution. There are 3 fundamental
principles within a codified constitution. The first being it is authoritative,
meaning it occupies a place in ‘higher law’ above customary legislation, giving
it more weight and power. As the constitution takes a greater stance within the
law, it allows other laws to be contrasted alongside it for judges to determine
how constitutional laws are. A codified constitution is therefore judiciable.
It is also entrenched, meaning it is firmly established and extremely difficult
to amend or abolish4. For
instance, the Republic of Ireland, in order for the constitution to be altered,
it is required the bill must be passed by both parliaments, receive a majority
referendum and have the assent of the President.5

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An
uncodified constitution is formed using rules located from a variety of
sources, as there is no single legal document. Differing from codified, an
uncodified constitution isn’t authoritative as constitutional laws hold equal
legal status to ordinary legislation. Due to this absence of a higher law,
judges do not have a legal standard to compare against. Rather than being
entrenched they are flexible, making changing constitutional laws simpler as
they just have to go through the usual process that applies to statute law.

 

Codified
constitutions offer clear-cut rules for political procedure. This makes it
easier for judges to follow and apply them, rather than being unevenly spread
through different documents or statutes within constitutional law, they would
be located in one single document labelled ‘The Constitution’. This would in
turn, lead to less misunderstanding about the meaning of constitutional rules
and greater certainty they can be enforced confidently and correctly.

 

However,
one argument being codified constitutions are too rigid as they do not allow
for change very easily due to the fact they have a higher status within the
law. In the United States, in order to amend the constitution that amendment
must be either proposed to congress and receive at least a two third majority
vote or by a convention called for by two-thirds of state legislatures, and must
also be ratified in 38 out of 50 states6.
The US constitution has only had 27 amendments since 17877. This shows there is not much room left
for flexibility or change, in a time where the world is evolving so rapidly, it
is of great importance the constitution is relevant and representative of the society it governs.

 

Uncodified
constitutions however, are seen as flexible. Because constitutional laws are
treated the same as ordinary laws, it allows changes to be made easily and
frequently in order to stay representative. An example of this is the
legalisation of abortion in 19678,
to prevent back street terminations that proved unsafe. This flexibility is one
of the major advantages the UK has, due to the uncodified nature of its
constitution. This may be one of the reasons A. King argues it’s not hugely
important for the UK to have a ‘capital-C’ (codified) Constitution.

 

Alternatively,
A. King could be considered extremely incorrect, due to the argument that
certain laws9,
should be entrenched to protect rights that are vital. It is maintained in the
UK, because the constitution is flexible, there is no formal protection of the
laws that are valued. For example, The Fixed Term Parliaments Act10
can be amended or
abolished just as easily as any other law. Parliamentary sovereignty means
parliament has the right to make or unmake any law, and no person has the right
to override or set aside this legislation, making them the supreme legal
authority in the UK.11
This places a great deal of power in to the hands of the executives which the
general public may be uncomfortable with.

 

Even so,
it is unlikely Parliament would do anything drastic, as it is in their interest
to be re-elected by the public, so there is an element of politics which
greatly influences parliamentary decisions. This would not be an issue if the
constitution was codified, as it is more difficult to change, deterring
governments from attempting to alter the constitution unless absolutely
necessary. Valued laws would be securely protected as they would be more
clearly defined.

 

Parliamentary
sovereignty would effectively be abolished if the UK were to have a codified
constitution. Some see this as positive because it prevents the above scenario,
and gives a greater amount of certainty to the general public that their
fundamental rights will remain, regardless of which political party comes in to
power. However, others may argue this would undermine one of the key principles
in the UK’s representative democracy. The UK is seen to be a liberal democratic
country. Liberty became a reoccurring fragment of the constitution, dating as
far back as The Magna Carta 121512
to the current Human Rights Act 1998. In
Ghaidan v Godin-Mendoza13,
Baroness Hale states that “Democracy is founded on the principle that each individual has equal
value … democracy values everybody equally, even if the majority does not”14. A number of problems are also
bound to arise from this, such as the question of how parliamentary sovereignty
can even be abolished. Being part of the EU undermines the sovereignty of
parliament, Brexit however may bring the doctrine back to its full capacity
which begs the question of whether or not constitutional reform is needed in
the UK.

 

Another
point is codified constitutions can lead to judicial tyranny. A codified
constitution would be ‘policed’ by senior judges who are unelected, meaning
they are not socially representative of the general public. This is undemocratic
and in turn means particular groups within society, for example ethnic
minorities are not necessarily going to have their views listened to.

 

On the
other hand, this would ensure the constitution was correctly upheld. Judges
also act as both neutral and impartial, so they are arguably the fairest people
to be trusted to police themselves in regard to the constitution.

 

To
conclude, from examining the different qualities of both codified and
uncodified constitutions, it is safe to say there are many reasons why it might
be less important the UK has a capital-C constitution, as codified
constitutions do have many downfalls. They are inflexible, unrepresentative of
changes within society and could potentially lead to tyranny on the behalf of
the judiciary. If Britain were to have a codified constitution it also runs a
high risk of losing a key doctrine,15
at the heart of its foundations. It can be argued that all of these factors
make it un-necessary for constitutional reform within Britain. However, the
UK’s constitution does have its fall backs, and after exploring the qualities
of a codified constitution, it may be better, given the UK’s current situation
with Brexit, that it adopts a more codified constitution in order to take the
control out of the hands of Parliament. My opinion is that there are many layers
within Britain’s constitution and the UK draws upon even amounts of law and
politics within it, which creates a comfortable medium between the two.

1 House of Lords Select Committee on
Constitution, First Report 19 accessed 18th January 2018

2 The Local Government Act 1972

3 Mark Elliot & Robert Thomas Public Law (3rd Edn, Oxford
University Press) 77-80

4 Scott Thomas Codified Constitution

accessed 17th
January 2018

5 Uncodified British Constitution (The Law Teacher) accessed 18th
January 2018. See also Electronic Irish Statute Book, Constitution of Ireland 47 – 50 accessed 20th
January 2018

6 The U.S National Archives and
Records Administration accessed 20th January 2018

7 Government Publishing Office Amendments to The Constitution of The United
States of America (2018) accessed 17th January 2018

8 The Abortion Act 1967

9 The Human Rights Act 1998

10 The Fixed-term Parliaments Act
2011

11 Parliamentary Sovereignty accessed on 15th
January 2018

12 Robert Blackburn ‘Britain’s
Unwritten Constitution’ (The British
Library,13th March 2015) accessed 20th
January 2018

13 Ghaidan v Godin-Mendoza 2004 UKHL 30 2004 2 A.C 557 

14 Ghaidan v Godin-Mendoza 132 (Baroness Hale)

15 The Doctrine of Parliamentary
Sovereignty accessed 15th January
2018

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