Codifying the UK Constitutional Arrangements

This essay will attempt to analyse theoretical and practical arguments for and against codifying the UK’s constitutional arrangements.

A constitution is a set of rules which regulates the balance of powers in a country between the Judiciary, Executive, Legislature and a citizen. Constitutions differ enormously in their volume and scope. Some are very brief, containing only a few articles [1] and addressing only ‘high level’ fundamental rights, policies and ideas. Others are very detailed and contain hundreds of articles [2] , describing constitutionally unimportant details, such as colours of a national flag [3] . Constitutions can be divided using various criteria e.g. codified/uncodified, written/unwritten, and entrenched/not entrenched. The majority of constitutions are codified [4] and entrenched.

It is often said that the United Kingdom’s constitution is unwritten, or even that the United Kingdom has no constitution at all. The question whether the United Kingdom has a constitution at all can be answered in the positive or negative depending on the criteria applied. Thomas Paine in the Rights of Man argued that the UK does not have a constitution at all, as the arrangement for the election of a supreme Parliament cannot be described as a constitution [5] . This view however appears to be rather narrow and formalistic which clearly contradicts the facts. The UK has been successfully governed, without any revolution or serious internal unrest, for more than 300 years. This would not have been possible if there was no efficient mechanism in place which governed the country. It follows that if a broad, substance based approach is employed then clearly the UK has a constitution.

To a considerable extent, it can be said that the UK does have a constitution partially written and uncodified. The constitution can be found in statutes and judgements, such as the Bill of Rights 1689, the Act of Settlement 1701, the Parliament Acts 1911 and 1949. These statutes along with others could be an accumulation of a solid UK constitution. Higher Court judgements are also written and their impact on constitutional law and its interpretation cannot be denied. To name just a few cases which affect the United Kingdom constitution: Entick v Carrington [6] , Thoburn v Sunderland City Council [7] , Factortame. [8] It follows that only two parts of the United Kingdom constitution can be properly classified as unwritten: conventions and prerogatives.

The ‘highest level’ in abstract sense, overarching constitutional concept in the UK is the ‘rule of law’. The concept itself is difficult to pin down and to describe accurately. It is a multi-dimensional idea which includes procedural and substantive justice [9] ,. Dicey pointed out three main aspects of the rule of law; supremacy of law, equality before law and the source of constitution [10] . The need to implement the rule of law lead to rise of ‘lower level’ concepts designed to give effect to the overarching idea. In the UK those concepts include the doctrine of Parliamentary Supremacy, constitutional conventions, royal prerogatives and judicial review.

The most important concept of the United Kingdom constitutional order is undoubtedly the doctrine of Parliamentary Supremacy (‘DoPS’) formulated by Dicey. The orthodox doctrine states that the Parliament is the single lawmaker with unfettered [11] power to pass any legislation [12] and that primary legislation cannot be questioned [13] nor invalidated by anyone [14] . As a result of enactment of the European Communities Act 1972 (ECA) and Human Rights Act 1998 (HRA) the doctrine, and constitutional order of the UK, has been modified. Parliament was no longer supreme in the orthodox sense [15] , judgments of the ECJ had to be given priority over national courts [16] , laws created abroad took effect in the UK [17] and courts empowered to scrutinise (but not invalidate) [18] an Act of Parliament for compliance with ECHR.

Another vital part of the United Kingdom’s constitution are the judgments of higher courts. Commonly known judgements which have impact on the constitution are Entick v Carrington [19] , Factortame [20] , Thoburn [21] . Judicial review is another legal procedure of vital constitutional importance, whereby decisions made by the Executive are screened for compliance with relevant legislation. Those commonly known include GCHQ [22] , exp Rossminster [23] , Smith [24] .

Constitutional conventions are important part of the constitution in the United Kingdom. Although unwritten and not legally binding, conventions are recognised by the Courts [25] and ‘…play a central part in the theory of British Government…’ [26] . It was said that conventions ‘…provide the flesh which clothes the dry bones of the law…’ [27] . Conventions are firmly established in the constitutional order e.g. the convention that the Queen cannot refuse Royal Assent to Bill of Parliament. Although there are no restraints on the Queen’s power to refuse assent, it is inconceivable in this democratic, twenty first century society, and has not happened for more than 300 years [28] .

Royal prerogatives are another vital part of the United Kingdom constitution. Prerogatives are residual power left to the Crown after the Glorious Revolution. They play important role in dualist system, it has been confirmed that no new prerogatives can be created [29] and in the event of a clash between a prerogative and legislation, an Act of Parliament prevails [30] . Commonly known and used prerogatives include: Right to appoint a prime minister, open and dissolve Parliament, grant pardons [31] , declare wars and treaties. In practice Royal Prerogatives are used by prime ministers or senior members of the cabinet in name of Monarch.

Problems with the lack of a Codified Constitution

It appears that the biggest problem with not codifying a constitution is that it cannot be pointed at, and named as, a closed list of rules which govern a state. It can be said that the lack of codification effectively blurs the boundaries of constitutional law [32] . It follows that a decision whether an Act of Parliament or judicial decision has any constitutional impact is very difficult to answer as we are unable to point to ‘four corners’ of constitutional text and make a decision as to the instrument’s constitutional significance. It also makes it very difficult, if possible at all, to decide whether a new instrument is in accordance with a constitution as we cannot point to a specific part of the constitution and scrutinise a new instrument for compliance. Countries which have codified constitutions regard it as an ultimate source of law which all other laws must comply with. In the event of conflict between new legislation and the constitution, the constitution always prevails and offending legislation is struck down [33] .

Another problem is that the United Kingdom’s constitution is ‘liquid’ in a sense that it is not entrenched nor any special procedure must be followed in order to change it. Alexis de Tocqueville argued that the principle of Parliamentary supremacy means that the United Kingdom’s constitution can change continually, and that it is better to say that the United Kingdom has no constitution at all [34] . The lack of entrenchment in the UK firmly contrasts with other states’ approach where a specific, usually onerous, procedure must be followed [35] before constitution can be changed. The absolute lack of entrenchment however has recently been affected by judgment in Thoburn [36] . Laws LJ introduced a doctrine of mandatory express repeal [37] whereby a constitutional statue can only be repealed explicitly, by the most express words, and not by implication. This seemingly simple idea of gradual constitutional change is complicated by the fact that in order to explicitly repeal an Act, the Parliament must recognise it as a constitutional one.

Controversially, it can also be argued that the lack of a codified constitution, together with the doctrine of Parliamentary supremacy renders the United Kingdom’s constitution one of the most rigid in the world (or that Parliamentary Supremacy and codified constitution are two mutually exclusive terms [38] ). If current Parliament is unable to bind its successor [39] it follows that it cannot entrench any Act e.g. new codified constitution would be open to express repeal as any other statue e.g. Dangerous Dogs Act. Any new constitutional arrangement e.g. codified constitution cannot be guaranteed to be legally enforced in the future as it directly conflicts with the doctrine of Parliamentary supremacy. It follows that it is impossible to make a gradual change from not codified constitution to codified one and a ‘Parliamentary suicide’ must be employed. Oliver [40] argues that the ‘Parliamentary suicide’ would require ‘…a referendum or resolution of the current two houses of parliament endorsing it, and then the two houses of parliament irrevocably dissolving themselves…’ [41]

Lord Hailsham argued that the lack of a codified constitution may result in ‘elective dictatorship’ [42] whereby newly elected Parliament, with sufficient majority can legislate whatever the government wishes. It reveals tension between the ‘rule of law’ as an ultimate aim of a good constitution and Parliament’s legal supremacy. Although it is theoretically possible that it would lead to ‘elective dictatorship’ it should be noted that really controversial statutes can be repealed [43] by subsequent Parliament, and that Parliament is sovereign in the legal sense only. Its will is constrained by political implications of making controversial decisions and the consequences are that MPs may suffer if they decide to enact unpopular or controversial laws.

Argument against Codification

It is commonly said that ‘if it isn’t broken, don’t fix it’ and it is difficult to disagree with this argument. The United Kingdom has been developing in a peaceful manner without almost any significant internal unrest. Whether gradual development of a constitution caused peaceful development of the country, or lack of revolution diminished the need for codification, is a moot point. It is however clear that the current state of constitutional affairs has been working effectively for over 300 years. Changing it for the sake of making a change only is unreasonable at best. Argument that a change has to be made as ‘times are changing’ is inherently logically flawed. Times have been changing since ‘the big bang’ and the constitution evolves as and when required. Furthermore, it is not unreasonable to argue that the fact that the current constitutional arrangements are 300 years old is a significant value in itself.

Another problem with a codified and entrenched constitution, is whether it can co-exist with the principle of parliamentary supremacy. It has been argued that these two terms are mutually exclusive and cannot co-exist [44] . Although it is possible to codify constitution without entrenchment [45] this appears to have a little sense. If a constitution contains fundamental values it should be protected from repeal by ordinary majority. As Bogdanor suggests there is ‘…no point in having a constitution unless it … ‘fundamental’; that is, more difficult to change than ordinary law…’ [46] . It follows that the introduction of an entrenched and codified constitution must lead to further erosion of parliamentary supremacy or even its complete destruction. This would cause the concept of constitutional supremacy to emerge.

If a constitution is supreme then it naturally follows that is less flexible and more difficult to change. It takes more time and effort to amend in response to urgent events. Uncodified constitution can be changed quickly when necessary. Benefits of uncodified constitution could be clearly seen in the aftermath of the Hungerford massacre in 1987 and Dunblane massacre in 1996. In both cases the Parliament passed acts which either restricted [47] or almost completely banned [48] possession of firearms in the UK. It is completely unrealistic to think that the US entrenched constitution [49] could be amended in such a swift and efficient manner.

It may be argued that an attempt to codify a constitution would attract media and citizen attention, and as result increase legal knowledge amongst citizens. Although increase in legal knowledge is undoubtedly an aim worth pursuing, the means to achieve it do not appear to be proportional. Exercising a ‘nuclear option’ in order to increase awareness amongst citizens is highly misconceived and dangerous. Education, whether in schools, on the Internet or TV appears to be preferable to making a giant step ‘into the dark’.

As mentioned above, the United Kingdom’s constitution is not limited to four corners of an Act but can be found in numerous Acts, judgments, conventions and prerogatives. Any attempt to make a ‘snapshot’ of constitution in order to codify it, appears to be momentous task almost impossible to carry out with any accuracy. As boundaries of constitutional law are unclear, any attempt to codify it would lead to discussion of what is and what is not a constitutional law. Even in the USA with its short [50] and codified constitution, boundaries of constitutional law are not clear. The Chief Justice of the US Supreme Court said ‘…The constitution is what the judges say it is…’. It follows that to reach any meaningful agreement as to scope of a new constitution would take a considerable amount of time; time in which the UK constitution may have evolved again.

Furthermore, as mentioned above, constitutions differ enormously in substance. Although some rights are considered fundamental and shared by majority or all people, others are not. Should the UK constitution include e.g. social rights of citizens [51] ? Should it start with a preamble referring to ‘fundamental rights’ and if yes, what is the scope of those rights? This and many more difficult questions would have to be answered.

Another problem with codified and supreme constitution is that it is likely to impinge on the separation of powers and create significant tensions between legislative and judiciary. Any Act of Parliament, voted for by majority of MPs, could be screened for compliance with constitution by judges who are not democratically elected. This would mean that there is still a possibility that there will be ‘elective dictatorship’, albeit in a court not in the Parliament. Although it may be argued that the constitutional court would add an additional ‘layer’ of protection, it may also mean that this potential benefit is offset by a decrease in legislative efficiency, increased controversy, delays and costs. On the other hand it may be argued that judges are impartial, able to make well reasoned and necessary but unpopular decisions.

Given the above, it appears that there is no need to make a fundamental change to the system which has been working successfully for over 300 years. The fact that the majority of countries have a written constitution is not an indication that UK should follow the same path. Furthermore, it appears that both theoretical and practical problems involved in codification and the extinction of the doctrine of Parliamentary Supremacy well outweighs the potential benefits.