Constitution Essay Practice

Q1

Assess the advantages and disadvantages of a written constitution for the UK’s
system of government.

Answer:

The United Kingdom is a parliamentary democracy with a constitutional monarch. Politics

in the United Kingdom takes place within the framework of a constitutional monarchy, in
which the monarch sits as head of state and the prime minister as the head of the UK
government. Most of the powers once exercised by the monarch have now been devolved
to ministers. However, in certain aspects, the monarch retains the power to exercise
personal discretion over issues such as appointing the prime minister and dissolving
Parliament, despite the fact that these powers may never be used in practice, or may only
be exercised symbolically. As a result of a long process of change during which the
monarchy’s absolute power has been reducing gradually, custom now indicate that the
Queen follows ministerial advice. Furthermore, the United Kingdom does not have a single,
written constitution however; this does not mean that the UK has an ‘unwritten
constitution’. In fact, it is mostly written but instead of being one formal document, the
British constitution is formed from various sources including statute law, case law made by
judges, and international treaties. There are also some unwritten sources, including
parliamentary conventions and royal prerogatives. In recent years there have been voices
echoing that UK should now adopt a written constitution.

A written constitution is a constitution which is codified in one single document; it usually

has the procedure for its amendment entrenched in the constitution. It is also the official
state document explaining the nature of the constitutional decision which is about the
rules and regulation and the political system as well as the rights of citizens and
governments in a codified form. Furthermore, constitution is supposed to be well-
established and this is because they are not easy to make changes or abolish it. A written
constitution also set out strict separation of powers and functions of the government
institutions. However, there are several strong propositions in favor of a written
constitution for the UK’s system of government.

The case for a written constitution is that it would enable everyone to know what the rules
and institutions were that governed and directed ministers, civil servants and
parliamentarians in performing their public duties. The idea of written constitution favours
the ideology of separation of powers that, the rules about our core institutions of
government, especially the executive, the legislature and judiciary, are of a fundamental
and different character to other kinds of law. They should be clearly distinguished from
ordinary law and codified in a special document, becoming the United Kingdom's 'written'
constitution because, the present constitution as it has evolved in recent times has become
one of 'elective dictatorship’ (Lord Hailsham) lacking separation in powers.

Furthermore, the propositions go on to hit on the basic historical fundamental pillar of UK’s
constitutional history known as ‘Parliamentary sovereignty’. In a democracy the people, not
Parliament, are sovereign. The idea of 'parliamentary sovereignty' emanates to a large
extent from the seventeenth century, signifying the supremacy of an Act of Parliament over
the Crown's prerogative after the Civil War and Glorious Revolution of 1688. However, it is
an untenable doctrine today that there are no limitations at all on what Parliament can
legislate about, however repugnant or unpopular. In practice, parliamentary sovereignty is
wielded by the government of the day and not Parliament as such. Thus conclusively,
“Parliamentary sovereignty is an anachronism in the democratic era, and needs replacing
by a written constitution” that expresses the sovereignty of the people in accordance with
rule of law and circumscribes the powers and duties of members of Parliament in both
Houses. On the other hand, it goes on to propose codified checks and balances instead of
conventional checks and balances as the public trust in ministers, parliamentarians and
civil servants has been in a state of decline, if not crisis, in recent times. To help buttress
public confidence in the political system, a clear structure of controls and safeguards needs
to be codified into a written constitution that ensures their integrity and standards.

In the meantime, major step towards codification of separate areas of the constitutional
and political system have been taking place in recent years however, in an informal and
disconnected way. This includes circulars issued by government such as the Ministerial
Code, Osmotherly Rules, and the Cabinet Manual, the Code of Conduct for Members of
Parliament, and the Code of Conduct for Members of the House of Lords, issued by each
House of Parliament, and in parliamentary statutes such as the Human Rights Act 1998
preserving fundamental rights, Constitutional Reform and Governance Act 2010 creating a
statutory basis for the civil service and for the parliamentary scrutiny and approval of
treaties and Fixed-term Parliaments Act 2011 codifying the law on general election timing.
However, this process towards codifying government needs to be joined up and completed
in one comprehensive and coherent document forming a written constitution that will
provide more certainty in the system.

Moreover, a written constitution would not mean losing Britain's sense of history. Any
historic institutions and ceremonies of past centuries that remain valuable for today,
including the monarchy, can simply be codified into a written constitution in spite with the
fact of clarity over their modern roles, duties and functions. However, the process of
establishing a codified constitution would give the people a role for the first time in
determining the central principles of the constitution of the UK on which they have never
been fully consulted, this will bring them a sense of knowing their lands law with clarity.
Nevertheless, a written constitution would become the most prominent national document
in the country, with great symbolic as well as legal importance; it would have a beneficial
educative effect in society, on how the system of government should work and what are a
person’s rights and responsibilities.

A written constitution would be a confident expression of the United Kingdom's national

identity, both domestically and internationally. It would more effectively describe the legal
and political boundaries of the British state and also with rest of the world. Every other
major democratic country in the world, except two, have a written constitution, serving as
important symbols of national unity and pride. It is ironic that Britain was in the vanguard
of major constitutional documentation in the western world, such as Magna Carta 1215
and the Bill of Rights 1689, but has failed to produce one for the democratic era. Lastly,
Brexit has become a great challenge for the un-codified constitution of the nation. A
written constitution will allow the country to sufficiently stabilizing their economy that has
recently been hit by the Brexit.

However, now looking at the other side of the coin, there are equally persuasive ideas
supporting the beauty of unique British constitution ‘the unwritten un codified
constitution’.

Written constitutions around the world have almost been initiated as a result of a
revolution, domestic unrests or grant of independence from a colonial power or larger
political union, and none of these circumstances exist in the United Kingdom today. As a
matter of fact, the British system of government and its unwritten constitution works well
in its present form and as it is famously said by Colin Powell that 'if it isn’t broke, don't fix
it'. However, it is impossible to codify the constitution without changing it, and change is
not wanted in UK today. Furthermore, a written constitution would most likely enshrine the
doctrine of separation of powers, which in its strict form is alien to the essence of the UK
constitution. The essence of the British constitution has been not separation of powers but
a flexibly mixing and sharing of powers that has served the country well in terms of
ministerial and administrative responsibility and accountability to Parliament and the
electorate. In other words, trying to impose separation of powers onto the British system
of government would be an affront to the British constitutional tradition. In fact today,
there is no absolute doctrine of separation of powers in the UK constitution. Overlaps exist
both in terms of functions of the organs of the state and the personnel operating within
them. However, the UK relies on a System of checks and balances to prevent against
abuses of power.

The idea of legislative parliament being supreme is preserved in the unwritten nature of
the constitution. The Parliamentary supremacy has been called the “Keystone” of the
British constitution (as Dicey called it), In other words, what is meant is that the doctrine is
no less than ‘the central principle’ of the system, on which all the rest depends. The
unwritten constitution allows a democratic Parliament to be the supreme source of law,
rather than an unelected judiciary. However, if the written constitution carried a higher
status and priority in law, as written constitutions normally do (US Constitution), then the
United Kingdom's Supreme Court would be able to review the constitutionality of particular
sections in Acts of Parliament, giving judges rather than elected parliament the final say on
what is and what is not the law, this will undermine the beauty of parliamentary supreme.
Nevertheless, a written constitution would curb the ability of elected representatives and
their officials to act quickly and flexibly to meet citizen’s needs. In fact, when dealing with
such matters elected representatives and their officials would find their discretion curbed
even more tightly than before because of the new raft of principles and procedures needed
to be complied with if judicial review applications to the courts seeking to quash their
decisions were to be avoided ('the judge over your shoulder', as this has been termed).
Nevertheless, the adoption of a codified constitution will affect the democratic rule in the
UK and might also lead to judicial tyranny. The reason is that judges would be the ones
policing the constitution and the interpretation of the constitution can be affected by the
personal preference and values of judges. Furthermore, they are not elected and not
socially representative of society with that they are “diminishing” the idea of democratic
rule in the UK as they are taking power away from elected representatives in the House of
Commons.

On the other hand, If the proposers of a written constitution maintain that there are
insufficient institutional checks and balances on the actions, decisions and policies of the
executive (an 'elective dictatorship'), however, this is a simplistic analysis and the reality on
grounds is very different, there being very considerable pressures on ministers making the
implementation of controversial new measures or policies very difficult. These pressures
come from the Opposition in the House of Commons, Q and A sessions, intra-party dissent
from the government's own backbench Members in the House of Commons, the scrutiny
procedures and cross-examination of the departmental select committees, Conventional
checks on ministers and their departments, as well as media criticism and the need to
court public opinion to avoid the threat of being voted out of office at the next general
election. There are number of examples Ministers have resigned due to their departmental
functions or personal lacks, in the case of the Crichel Down affair in 1954 where the
minister responsible, Sir Thomas Dugdale, resigned after a damning report of the actions
of those acting for government. There numerous more examples in past however this is
just because of the strong checks and balances.

It is pertinent to note that, where greater clarity over the United Kingdom's political rules is
required, an ad hoc process of codification has already been taking place, and can continue
to do so. Thus there is a Ministerial Code dealing with responsibilities and procedures for
ministers supervised by the Prime Minister and Cabinet Secretary; there is a Civil Service
Code regulating ethics for officials supervised by the Civil Service Commission; and there is
a judicially enforced code of civil rights and freedoms in the Human Rights Act. This
approach is preferable to a comprehensive scheme of codification in a written constitution,
because it is an approach that fits with the United Kingdom's evolutionary nature. The
United Kingdom has an evolutionary system of government that adapts smoothly to
changing social and political conditions, whereas a written constitution entrenching its
institutions and rules would be more rigid and difficult to change with a danger that it
might fossilize and become out of date. Furthermore, any study of written constitutions
around the world shows that they only come into existence after a successful invasion,
after a revolution, or some appalling failure in the polity and breakdown in the way
government and politics were operating. The current malaise in the UK is nowhere near
any of these catastrophic moments, and does not require a fresh start and a radical new
way of conducting government and politics.

Thus conclusively, encapsulating Britain’s constitutional arrangements in a single document

is nonetheless a Herculean task! Written or unwritten, one thing is for sure: there is no
such thing as a perfect constitution. In my opinion, UK shall now adopt a codified written
constitution, as we have seen with time that the powers in UK have evolved from one to
another. Connecting the historical dots, where powers of the monarch were made subject
to the law, Prerogatives now live in hands of ministers, judicial independence, and
Parliament being supreme to Parliament losing its sovereignty at the hands of European
union (some may portray it as consented give up but, history will always show that where
national law did not stand with compliance the EU law prevailed. UK lost his sovereignty
back then at the hands of EU and the essence of ‘unwritten-ness’ was lost too when the
new reforms such as written cabinet manual and code of conducts were introduced.
Nevertheless, looking at the current uncertain condition of United Kingdom a few of the
challenges such as the transformation of the UK’s legal system that Brexit entails, the
involvement of the institutions in the Brexit process and the potential negotiations of new
agreements with the rest of the EU member states. Leaving aside how interesting these
issues may be, they are principally speculative since the UK’s exit from the EU is still in a
beginning period. In spite of the fact that, in January 2017, the UK Supreme Court ruled in
the Miller case that parliamentary endorsement was required so as to commence the
procedure of leaving the EU. This decision has given some clarity respect to the institutional
involvement, yet the rest of the issues are still unresolved. UK has a lot to legislate within
the transition period provided by EU, if today the acts become codified into a single picture
it would be a new start for UK.
Q2

Explain What is Meant by a Constitution and the UK?

In law the word constitution can either mean an actual document or set of documents of
legal sanctity such as the American constitution. It can also refer to a body of legal or
political rules and arrangements concerning the governing of a particular country.

Thomas Paine in ‘The Rights of Man’ (1791) describes a constitution an antecedent act of
the people and the government is only a creature of the constitution. In its widest sense it
is the framework of rules regulating the exercise of power in a particular body or entity.

Where (Modern Constitutions 2nd edn 1966) classifies constitutions as either written or
unwritten. More specifically defined as codified or uncodified. The UK has an uncodified
constitution but there are many written documents which form part of framework of rules.

The UK along with New Zealand and Israel is one of the few countries to have an uncodified
constitution.

The HL Committee First Session Report in ‘Reviewing the Constitution’ (2001-2) set out a
working definition of the UK Constitution as “…the set of laws rules and practices that
create basic institutions of the state…”

In some countries such as the US constitution is supreme over the legislature. The
constitution is supreme law and legislature must act in a manner consistent with its tenets.
In the UK the traditional view is that Parliament is sovereign and constitutional law is not
supreme.

The HL Committee (2001-2 Reviewing the Constitution) laid down the tenets of the
constitution in the UK were made up from the Sovereignty of the Crown in Parliament, the
Union State, Representative Government, Membership of the Commonwealth, EU and
other international organizations and the ‘Rule of Law’ encompassing the rights of the
individual. There is no single document which specifically embodies the constitution in the
UK but the collation of laws, practices and codes.

The UK constitution is more organic in nature and has developed over centuries often from
unconnected events. Also, it is more political in nature Edmund Burke (Reflections of the
Revolution in France 1790), described it as “…a living reality derived from each layer of
social and political development.”

In the UK as the constitution is unwritten part of the role of the judiciary has been in
interpreting legislation and this then becomes case law. This has given the judiciary a role
in shaping the nature of the constitution. This aspect can cause tension between the
different organs of government as the executive and Parliament have sometimes taken the
view that judges have overreached themselves into the political arena and gives rise to
accusations of ‘judicial activism.’ This has been particularly acute in recent years with the
tensions surrounding the Brexit referendum of 2016. Judges were branded ‘enemies of the
people’ (Daily Mail November 2016) with their decision in R (Miller) v Secretary of State for
Exiting the European Union [2017] UKSC 5 that the UK Government required consent of
Parliament to give notice of Brexit (invoking Article 50). With the introduction of the HRA
1988 judges have played a much bigger role in interpreting legislation and defending rights
and again this has created ongoing strain between the Government, particularly the Home
Office and the judiciary. The Home Office being asked to take down a video which
condemned the overreach of their description of ‘activist lawyers.’

Although all legislative acts are equal there are some which are considered to be more of a
constitutional nature. This was identified by Laws LJ in Thorburn v Sunderland City Council
[2003] when he differentiated between constitutional statutes and ordinary ones. The key
difference being constitutional statutes concern the relationship of the individual and the
state with regard to fundamental rights. Act such as Magna Carta 1297, Bill of Rights 1688,
The European Communities Act 1972, Human Rights Act 1988, Devolution Acts. These
cannot be impliedly repealed but would require a further statute or words in a further
statute to show definitively that statute provision was repealed. Thus, after the Brexit vote,
the UK Government invoked Article 50 the Government had to bring in the Great Repeal Bill
to repeal the European Communities Act 1972, initially converting EU law into UK law
pending the actual withdrawal from the EU. Although generally the constitution in the UK is
flexible and there is not a special procedure for making or amending laws.

Constitutions can be flexible or rigid in nature. In the US the Constitution is very hard to
amend. There have only been 27 amendments to the constitution in 233 years of existence.
The Amendment Process means that two thirds of both the Senate and House of
Representatives need to approve an amendment and then it requires approval by three-
fourths of the US federal states. This rigid framework can mean that it ‘gets stuck in time’ -
the 2nd Amendment was written for the social circumstances of that time. For example,
the ‘Right to Bear Arms’ was appropriate at a time when defending your land, and property
from others was critical for settlers. Even with the mass shootings that have taken place
over the US and deaths from gun crime there is fierce opposition to changing this and it
would be very difficult to enact.

The system of government can be unitary, where government power is concentrated in the
organs of the central government such as the UK and France. In federal systems
independent states have power and join together to empower the organs of central
government. In the Federal Republic of Germany when communism fell in East Germany in
1990, as part of the process, East Germany, which had been a unitary state since 1952, was
re-divided into its initial five partially self-governing states.
In the UK power is centralized although it is separated between Parliament, the Executive
and the Judiciary. While Parliament is sovereign, and the separation of powers is intended
to ensure scrutiny of the Executive this is more difficult if there is a strong majority and
Parliament becomes much more pliable to the ruling party of government. The UK system
requires stability and not to have arbitrary change Lord Carswell in Jackson v AG [2005]
UKHL 56 AC 263 described the constitution as a living organism and that was delicate and
‘…capable of being damaged by over rigorous treatment, which may have incalculable
results.”

A codified constitution derives its major merit as an organic instrument which clearly spells
out relationships between the individual and the state as well as allocation of powers
among the various organs of government. It is also an entrenched benchmark, requiring
special procedures to amend and it is free from the whims of those in power. For example,
in Germany the first article in the constitution is a protection of the human dignity and
human rights. In writing the constitution they sought to ensure that a potential dictator
would never again be able to come to power in the country.

At the moment the Government has a large majority and is much more able to make big
political change should they wish to do so such as looking at the HRA 1988.The Internal
Markets Bill 2020 had clauses which were in violation of international law and also ouster
clauses (Clause 47) to try and prevent judicial challenge.