The British Constitution is Not Fit For Purpose: For and Against
The UK has survived for centuries without a constitution. This somewhat peculiar arrangement is only paralleled in a handful of countries. In recent years the UK’s constitution has undergone drastic reform, with the introduction of the Human Rights Act 1998, the devolution of power to the nations and the creation of the Supreme Court. Is the next step the codification of the constitution?
For
Historically, Britain’s uncodified constitution functioned on the basis of ‘political tradition.’ The constitution's evolving and flexible nature means that it doesn’t rely on the law to uphold constitutional values, conventions and principles, but instead British sentiments of ‘decency and fair play’. This presents an array of problems, such as exploitation, limitations on democracy, and a lack of accountability. In today's modern context, against the backdrop of Brexit, it is becoming increasingly clear that the UK constitution is no longer fit for purpose.
Unlike the United States, the UK does not have a single document or codified constitution, so we have to rely upon our politicians to uphold and abide by the constitutional values and customs that have not been codified. For example: if in the UK Parliament issues a vote of no-confidence in the Prime Minister, then traditionally they should resign, even though they are actually under no legal obligation to do so. This illustrates the lack of formal constraints on the actions of politicians and helps us to understand how politicians who choose to disregard constitutional norms are able to test the limits of parliamentary democracy without repercussion.
In 2019 Prime Minister Boris Johnson advised Her Majesty the Queen that parliament should be prorogued for five weeks during a critical period of the Brexit crisis. The move was met with immediate backlash and it was suggested to have been used to prevent the proposition of legislation against a possible no-deal Brexit by narrowing the time frame in which it could be developed. Whilst eventually the move was deemed as ‘unlawful’ by the Supreme Court, the first part of the judgement and primary legal question was concerned with whether the Prime Minister’s actions were ‘justiciable.’ Lady Hale delivered the judgement, and stated that prorogation was unlawful because it ‘[prevented] parliament from carrying out its constitutional functions.’ The previous High Court decision had declined to intervene, and this highlighted a critical feature and arguable failure of the UK constitution. That is, even amidst what was thought to be exploitation and unequivocal infringement on democracy, the law was not able to intervene immediately and was required to first consider justiciability.
Had there been a codified constitution, the courts would not have to justify their interference and would therefore be able to regulate this type of behaviour more easily. Even though the court was able to intervene, the difficulty of doing so demonstrates how the UK constitution is unfit for purpose. It should not be difficult to hold those in power accountable for their actions. An uncodified constitution creates a space that allows the exploitation of power. Relying on political traditions to prevent this in modern politics is not sufficient: there must be total legal enforceability wherever the protection of democracy is concerned.
“Without limits on popular sovereignty, without ground rules, with ‘everything up for grabs’, democracy becomes wholly incidental to the political constitution. Democracy collapses into the recapitulation of the status quo: whatever happens in a democracy is democratic.”
Indeed, this cyclical and political conception of the constitution pushes back against the judiciary and behaves in an exclusionary manner. The interference of judges in parliamentary decisions is almost always met with resistance because it is considered ‘undemocratic’ for them to do so, while lawyers are criticised for attempting to ‘limit’ sovereignty. This demonstrates the major flaw of the UK constitution: our legal systems are restricted as their mere intervention is deemed undemocratic, but without regulation, our politicians are able to engage in behaviour that directly threatens democracy. In September, MPs backed the Internal Market Bill, which would breach Article 4 of the Brexit withdrawal agreement signed with the EU less than a year ago. Compliance with international law has always been a key element of the UK constitution, but the actions of politicians illustrate a blatant disregard for this custom and again exhibits an issue with the UK constitution’s political nature. By excluding the judiciary, the UK constitution consequently shuts out legal accountability, allowing modern politicians to abandon convention, principle and tradition without consequence.
In a nation more divided than ever, where government officials insist on testing the system to the limits of supposed destruction with their unprecedented actions and in the context of a rapidly evolving political atmosphere, the UK constitution is currently not fit for purpose. It does not protect but actually threatens democratic freedoms by enabling the exploitation of power with a limited legal remedy. The need for a codified and legally enforceable constitution is now more evident than ever.
Zobiya Shah
Against
The British constitution stands out for its flexibility and resilience. Although it has been tried and tested in the last few years, its key tenants of parliamentary supremacy, the rule of law and convention have persistently delivered equitable outcomes. Whilst in a utopia, a codified constitution might have a certain appeal, the British constitution has proven its ability to rise to the convoluted reality of government.
Unlike codified constitutions, the uncodified constitutions allows governments to adopt laws that keep the legal system up to date with the views of the society, and that can be passed quickly, Such is the nature of the British constitution that there are often few barriers to legal change.
This is demonstrated in the comparison between the British constitution and that of the United State. In the UK 96.5% of bills become legislation while in the US only 3% become law. The relative ease of the UK’s passing of gun control legislation, juxtaposed with the impasse of such legislation in the US, speaks to the efficiency of the former country’s law making procedures, and the therefore constitution.
The Dunblane shooting of 1996 saw a gunman enter a Scottish primary school, and proceed to murder and injure 25 students under the age of 6, as well as their teacher. The extent of the tragedy sparked a public outcry for the reform of access to firearms.The British parliament responded with the passing of The Firearms Amendment Act No. 2 of 1997. The Act produced one of the strictest gun control systems in the world and effectively saw a drop of 80% in gun violence within 5 years of it coming into effect. Furthermore, by virtue of parliamentary sovereignty, it became of constitutional importance. Comparatively, the Parkland Florida School shooting of 2016, which followed the Sandy Hook school shooting in 2012 and saw 20 school children die, was met with an echo in the American Congress.
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”, the infamous second amendment of the constitution reads. It requires at least two-thirds of votes in both Houses of Congress in order to be amended, which has proven to be an obstacle to change. Despite reoccurring tragedies, the required majority in the house was not persuaded to alter the amendment, and gun violence remains one of the key social problems in the United States, rooting from an 18th century entrenched document.
There is little argument to be made that the codified US constitution in this area appears more fit for purpose than the British one. The protection and the exploitation of the benefits of the law by the public was described by UK Lord Chief Justice Lord Bingham as one of the core principles of the rule of law. Although it remains a fluid concept, the rule of law remains one of the most effective and fit for purpose elements of the British constitution.
The rule of law is a cross-institutional concept binding together the executive, legislature and the judiciary. It regulates even non-intrusive execution of power by the three branches of government and produces checks and balances for the democratic process. The rule of law is an important safeguard against parliamentary sovereignty as it ensures that the uncodified nature of the British constitution maintains a strong democratic function. One of the safeguards is the power of the judiciary to strike down government action incompatible with the rule of law, as was the case in Entic v Carrington. A more modern example includes Prime Minister Boris Johnson advising the Queen to prorogue parliament for 5 weeks. Critics argued that this would prevent parliamentary scrutiny of legislation which would allow the UK to leave the EU without a deal on the 31st of October. In the Supreme Court, it was argued that this constituted an abuse of executive power. The case succeeded, allowing MPs to return to parliament and highlighting the effective role of the judiciary as a constitutional institution that checks the power of the executive.
The uncodified nature of the constitution also plays an important role in the protection of civil liberties and human rights. The passing of the Human Rights Act in 1998, which enshrined the European Convention on Human Rights into the British legal system, allows UK judges to strike down any laws which they deem to be inconsistent with the Act. This makes the constitution fit for purpose not only because it grants a quasi-constitutional status to the Human Rights Act through parliamentary sovereignty, but also because it allows the claimants to seek judicial review within the UK and not at the European Court of Human Rights This latter option has drastically improved access to justice, as it would often take years and a significant amount of resources to reach Strasburg.
The British constitution has survived hundreds of years of political change, turmoil, social policy adaptation, recessions and progressivism which can be attributed to its form. Its survival is a testament to its superiority as a model constitution. Its unique structure has ensured that the constitution enforces checks and balances on the different branches of government without posing a barrier to change.
Karolina Potasiak