Whenever we talk about the codification of the British constitutional system, the first thing we should acknowledge is that we are examining the sources that shape up the UK constitution. The framework of how the UK constitution operates is not present in one single location, it is in various forms. Obviously the sources that we are talking about here are from a legal aspect. Now whilst most of the sources of the UK constitution exist in a written form, there is a lack of a single document. Hence it is better to think of it as uncodified.
For us to examine the statement in question, we have to define what is a constitution? K. Wheare, in his book, “Modern Constitutions” from 1966 gave quite a good definition of what a constitution is. For him, he said it was “the whole system of government of a country, the collection of rules which establish and regulate or govern the government”. So why do we need a constitution? For the simple fact that any particular country needs a framework so that the country can be governed and to ensure that power isn’t abused. As Lord Acton aptly said ‘power tends to corrupt and absolute power tends to corrupt absolutely’. Now, countries that have a written constitution, the legal framework of the government is actually set out in that constitution itself. It has a clear statement of the legal rules and structure of that state and how it actually operates. The UK does not have one single document which sets out all of those rules. So there is therefore no clear legal statement which sets out the structure of the state and how it operates. In the absence of that clear legal structure of the state, and how it operates in those legal rules of the United Kingdom, what we have in the United Kingdom is certain doctrines which set out how the system operates. These doctrines include the Legislative Supremacy of Parliament, or Parliamentary Sovereignty, the Rule of Law and Separation of Powers. So these doctrines they kind of set out how the system should operate, how the constitutional rules work.
Now in addition to these doctrines we also have constitutional rules which are set out in a number of different sources. The following are some of the sources of the UK Constitution: legislation, case law, parliamentary laws and customs, academic writings, constitutional conventions and international law – such as European Union Law. So what we are going to analyse in this paper is whether the flexible system we have in place is pragmatic or that the codification of the UK constitution would give more clarity compared to the current constitutional arrangements by looking at the doctrines and some of the sources in place.
In order to break down the first doctrine that is Parliamentary Sovereignty, the point of reference would be; Albert Venn Dicey in his very influential work from 1885, An Introduction to the Study of the Law of the Constitution. Dicey said the following: “Parliament has the right to make or unmake any law whatever and further, that no person or body is recognised by the law of England as having the right to over ride or set aside the legislation of parliament.” Thus, there are three principles from this theory: I) Parliament can legislate for anyone, anywhere, ii) Parliament cannot bind its successors or in turn be bound by its predecessors and iii) There is nobody else, including the courts, no person, entity or body that can challenge the validity of an act of parliament.
In order to illustrate Dicey’s first principle we can look at the case of Mortenson v Peters, where Lord Dunedin said: ‘For us, an Act of Parliament passed by the Lords and the Commons and assented to by the King is supreme and we are bound to give effect to its terms’. In relation to the second principle, the case of Godden v Hales, where it was held that the courts will always give attention to that, and pay heed to the intention of the latest Parliament. Finally, in regards to the third principle, the case of British Railways Board v Pickin (1974) where Lord Reid said , ‘The idea that a court is entitled to disregard a provision which is in an Act of Parliament on any ground must seem strange and startling to anyone with a knowledge of the history of the Constitution.’
Dicey’s theory has been in place since the late nineteenth century, and this is his theory in all fairness. It is of paramount importance to go beyond that theory if we are to analyse whether the UK is in need of a codified constitution. Currently, any party with a majority in the House of Commons is able to amend the constitution because of the supremacy of Parliament. A codified constitution would act as a safeguard. For instance, it will be imperative to have a 2/3 majority in both houses. A codified Constitution gives more way to an appropriate system of checks and balances. At the moment, one can argue the judiciary of the UK is rather weak in its capacity to act as a check against parliament. A codified constitution would increase its authority. For example, in the US case, Marbury v Maddison, it was established that the Supreme Court can quash Acts of Parliament if they breach the Constitution and constitutional rules. Not so within the UK though, as we’ve just seen with the above doctrine. The courts do not have the authority to override law. Parliament is the supreme law making body and whatever it says or does the courts cannot challenge.
Nevertheless, Parliamentary Supremacy has always been the main pillar of the UK constitution. If the UK were to implement the concept of having a codified constitution then this doctrine would be completely meaningless and would not be able to have effect as it has done it in the past for the reason that codified constitutions are ruled upon by judges. Parliamentary sovereignty would be effectively abolished. As we are also well aware in UK, judges are unelected and it would be consequently undemocratic to take power away from the elected representatives and give it to judges. A codified constitution would act as a form of supreme law and therefore would destabilize one of the key principles in the UK’s representative democracy. It is only the elected Parliament can decide on the constitutionality of laws. Thus, having the current constitutional arrangements preserves the democratic concept, that the constitution, if changed, is done so by democratically elected bodies.
Moving forward, to the next doctrine that is the rule of law and again it is Albert Venn Dicey who identified three core aspects to the rule of law namely: I) There can be no punishment, other than for a breach of established law, ii) Nobody is above the law. Everyone is subject to the same laws and iii) the judiciary propound and protect the constitutional rules, through the common law. On the face of it, the theory of Dicey on the rule of law seems straightforward. However, Sir Ivor Jennings criticised Dicey’s theory and labeled it as an individualistic approach. Backing up his criticism with concrete examples in regards to the first aspect of Dicey’s theory, Jennings said discretionary power still exists, for example, if someone was convicted of manslaughter they could either be released immediately or imprisoned for life. That is quite a lot of discretion isn’t it? There is a huge difference between being free and being imprisoned. In regards to the second aspect, Jennings said there are indeed different classes in law. Again an example would be the rights and responsibilities between landlords and tenants. Landlords enjoy different rights and responsibilities; have different legal rights and capacities at law, as opposed to tenants.
In light of the above, which are again just theories, we should question the rule of law in itself? Is it being properly implemented to benefit the people constitutionally? It seems that codifying the UK constitution will in turn set out a clear set of rules. There will be no more theories. Due to the accessibility of the codified constitution via a document i.e. written form, human rights of the citizen will be strongly emphasized as a result. A codified constitution offers a system of equality and neutrality. Eventually, it will be easier to educate the citizen as it will be fairly comprehensive which leads to certainty and clarity.
Nonetheless one has to bear in mind, despite having a codified constitution in place does not guarantee that the fundamental rights of the people will be protected. A classic example would be when we look at how Hitler used the constitution in bad faith. Article 48 of the Weimar constitution authorized the President to assume certain powers when faced with a state emergency: In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary by force. In particular, the President could suspend civil liberties and rights, including due process rights. Hitler, once elected Chancellor, was able to take advantage of this provision. The above example is in clear contradiction of Lord Bingham’s fifth principle on his rule of law which was: ”the law must afford adequate protection of fundamental human rights. ” Interestingly, Sir Robin Butler, a former cabinet secretary, said of the constitution when asked to define it was; “It is something we make up as we go along.” This provides food for thought to us as academics. The very fact the constitution is codified does not necessarily guarantee our fundamental human rights will be protected.
The next doctrine we are going to assess is that of Separation of Powers. Aristotle’s identified three different organs of the state and said a state would be well organised if they were kept separate and distinct. The different organs of the state are often called the executive, the judiciary and the legislative. The judiciary, obviously the courts and the judges; the executive what we refer to as the government, and the different government departments and then we’ve got the legislative, which is Parliament, the law makers. Baron Montesquieu who wrote most influentially about the doctrine and commented upon the UK system in his book from 1748 called The Spirit of the Law. He said: “there can be no liberty if the legislative, executive and judicial powers of government were to be exercised by the same person or authority.” If you have these three different branches of the state, the legislative, the executive and the judiciary, if all of those, or more than one of those are put into the hands of the same person, that could lead to the potential abuse of power and tyranny. Therefore, there is the need for safeguards. That’s what the separation of powers is all about
One can argue what is the whole purpose of separation of powers – well it’s to prevent abuses of power. The UK Constitution has been criticised because it is said that too much power rests with the executive as it is able to dominate Parliament. This is because the government is formed from the party with a majority within the House of Commons. The Prime Minister clearly ‘wears two hats’ as he is an active member of the legislature, able to vote in Parliament; and yet is also the leading member of the executive. The separation of powers in the UK has been thus labelled as ‘soft’, meaning that there is some overlap in powers between the organs of government. This brings us to question; do we have within the UK’s uncodified constitution sufficient safeguards and balances to prevent abuses of power?
We definitely do have sufficient safeguards to prevent abuse of power. One of the safeguards placed on the executive is that there is accountability to the legislature. Any issue that arises can be dealt with by appropriate means such as for instance a vote of no confidence in government policy or administration or in select committees, Question Time and debates in Parliament as well. Another example would be the use of statutory or prerogative powers by the executive may be subject to the supervisory jurisdiction of the courts – the courts’ common law power of judicial review.
The checks available in regards to the judiciary are namely: the judiciary is subservient to Parliament (Burmah Oil v Lord Advocate), Judges have no power to question an Act of Parliament (subject to Factortame), Judges have no power to question whether the correct parliamentary proceedings were complied with in passing legislation, Judicial decisions may be modified or overruled by legislation, (Burmah Oil led to the War Damages Act). The final authority to dismiss a judge resides in Parliament with the consent of both Houses. Judges may not sit in either House of Parliament and Judges must not express party political views
Ultimately in regards to Parliament, we do recognize that Parliament is sovereign but even then there are still checks on its powers for example: by the electorate or even the fact that Parliament comprises a number of competing political interests. This in turn can act as a moderating force.
Let’s have a look now on some of the significant sources that shape up the UK’s uncodified constitution and whether or not they are in place in the correct manner. Let’s start with case laws which can be divided into two different types. Firstly cases which concern themselves with common law rules and secondly, cases dealing with statutory interpretation.
One of the common law decisions in which the judge expounded constitutional principles was in Entick v Carrington (1765). The case propounded the very important principle that any actions by the state over individuals require some lawful authority do this. For the state to interfere with individuals and their rights, their freedoms – you need lawful authority for that to happen. You need to be able to point to the act, or law, that gives this power upon a person to be able to do that. In the absence of that power here, that rendered these actions unlawful. That was therefore a very important constitutional rule there. The second type of case law is ‘statutory interpretation’. This is when judges are interpreting statutes; in the case of Waddington v Miah, the courts propounded the principle that acts of parliament do not have retrospective affect unless, there is a caveat here, the acts expressly say that they are to have retrospective effect, then they do.
These case laws give certain amount of protection to constitutional principles. So for example, if the Supreme Court within the UK propounds some constitutional rules, all other courts are bound by that decision and those rules. It is only the Supreme Court that can override that decision, or an act of parliament which will trump judicial decisions as well as they are the highest source of law within the UK constitution. This allows some degree of flexibility again as they are not entrenched forever. The current constitutional arrangements, however piecemeal their development has been, they have actually worked well in practice and continue to do so.
Another significant source of law is constitutional convention. Albert Venn Dicey in his book, “An Introduction to the Study of the Law of the Constitution” from 1885 gave the following definition of constitutional conventions. He said ‘Conventions, understandings, habits or practices which, although they may regulate the conduct of the several members of the sovereign power, are not in reality laws at all since they are not enforced by the courts.’ One important aspect to take into account from Dicey’s definition is that constitutional conventions are not legal sources at all. They are not enforced by the courts, they are not legally enforceable.
One particular example of constitutional conventions relates to Royal Assent. The power for giving Royal Assent is a royal prerogative power. But here is the catch, let’s just suppose the Monarch refused to give Royal Assent to a bill, what would ensue? As we are well aware, it is not possible to sue the Queen. In short, constitutional crisis would ensue because there is no legislation, which would dictate what would happen in those circumstances.
De Smith asks (in Constitutional and Administrative Law, 8th edn, 1998) argues why not codify conventions of the constitution in legal form – either in a statute or as part of a written constitution? Several Commonwealth constitutions have already undertaken this. Codification would have the advantage of clarifying certain of the most significant constitutional rules. The informality associated with conventions may be disadvantageous in that it may sometimes be very difficult, if not impossible, to ascertain whether a certain usage has crystallised into a conventional rule. As mentioned above, a refusal of assent by the Queen to a bill might, in certain circumstances, appear not to have a clear basis. This difficulty could be avoided if the constitutional functions of the monarch were set out in legal form. To implement the codification of conventions means less space for a ‘constitutional crisis’ which arises from ambiguity in the current constitutional arrangements.
On the other hand, codification of conventions might achieve a desirable clarity in some areas, but at the expense of the present flexibility. The interpretation given to an Act of Parliament may evolve over time, but there is still a rigidity associated with statutes that is avoided by conventions. Conventions allow the constitution to evolve and keep up to date with changing circumstances without the need for formal repeal or amendment of law. Further, conventions may not always be followed and, although this can be seen as a weakness, as argued above, it can also be seen as a strength that, in certain circumstances, rigid adherence to conventions is not required as it would be if they were enshrined in a legal code. Conventions have been able to lose their binding force or undergo a change in content without the need for any formal mechanism being followed. They may disappear gradually if they are no longer observed. If a conven¬tion has been established by express agreement, it may be superseded or modified by agreement. For example, decisions taken by the prime minister or the Cabinet about the way the Cabinet is to operate may be superseded by new decisions. Such flexibility has been politically convenient in the past and will, presumably, continue to be so.
To conclude, on the whole the British constitutional arrangements has shown a unique ability to adopt itself to the changing circumstances. Codified or uncodified, one thing is for sure: there is no such thing as a perfect constitution. The UK with its current constitutional arrangements has survived two world wars and has still been able to maintain a level stability way better compared to other countries. As the well-known dictum says if it ain’t broke, don’t fix it. In the words of William Hague “there is no need for a codified constitution as we already have internal stability and democratic stability and accountability, Britain has been well served by its uncodified constitution.”