Question constitution:

Discuss whether the UK has an ‘unwritten constitution’, and assess the

advantages and disadvantages of adopting a modern type of constitution today.

Answer:
The above-mentioned statement demand us to discuss that either UK possess an unwritten
constitution and if it does then what are the advantages and disadvantages in adopting a
modern type of constitution today. Does UK in need to adopt a codified constitution? I am
intending to discuss all of it with the help of history. If they are in need of a written constitution
how they should adopt it. I will discuss this with references of some renowned jurists what was
their opinion on it. I will discuss how unwritten constitution came into the existence.

The House of Lords select committee had described the constitution in 2001 as “The set of laws,
rules and practices that create the basic institutions of the state, and its elements and related
parts, and insert the powers of those institutions and the relationship between different
branches and between those institutions and the individual.” There is a difference between
codified and uncodified constitution. The set of rules and laws are compiled in one single
document known as codified constitution. Countries such as USA, Ireland, Belgian, Malaysia,
and India possess codified constitution and in these countries constitution itself will be known
as the highest law of the land whereas UK has the concept of parliamentary sovereignty.
Thomas Paine stated that UK does not have a ‘concrete constitution’. Lord Bolling Broke had
described the UK constitution as abstract in sense, because UK had developed laws, customs
and, system of government according to the community. There are 6 descriptions of
constitutions, describe by Theorist K.C. ‘federal or unitary’, ‘written or unwritten’, ‘flexible or
rigid’, ‘separated or fused powers’, and ‘republican or monarchical’.

The difference between written and unwritten constitution is one of form but not of context. In
written constitution, there is a significant advantage that anyone can easily trace the laws and
rules because everything is compiled in one single document. Whereas, within the unwritten
constitution it is difficult to understand the law because one has to go through the Acts,
historical facts and other evidences to understand the laws and rules. The true protection of
individual rights is protected by the political practices, and political process and not that
whether a state has a written constitution or not. The uniqueness of British constitution is that
it carries the status of being unwritten. Sir Ivor Jennings described constitution as that “it is
grown with time and not made”. The interpretation of ‘unwritten’ is that powers of the
government or civil rights have been evolving and the continuous development of common law
and statutes depicts that UK’s constitution has evolved with the time.
The customs that reflected the social structure were used to be the type of Anglo-Saxon
society, before the advent of common law. At that time, Kind used to administer the law and it
was universally accepted hence those administered laws were not personal or arbitrary. It is a
fact that King’s ordinary judges used to scrutinise the actions of executives and they often
exempted them from working. However, this concept does not exist anymore because we have
the doctrine of rule of law which states that every man is subject to law of the realm. In the
reign of Charles I, Court of Chancery grew and Court of Star Chamber perished. This leads to the
birth of common law. The main purpose of common law in the formation of constitution is to
ensure that civil liberties are respected. Courts are advised to rule the cases without being bias
and take guidance from previous decision known as precedents. UK’s unwritten constitution
mainly consists of customs, traditions, conventions, and precedents. After the rise of common
law judges hold the power to draw ‘general rules coming out of traditional practices and
precedents’ ‘Pek, 2008’.

Advantages and Disadvantages of Unwritten Constitution:

There is a never ending debate between the advantages and disadvantages of the codified and
uncodified constitution. The most important advantage is the nature of the constitution which
is so flexible that it can be amended with simple majority. It is said that parliament can pass any
law which shows how easily previous bad laws can be repealed. In USA, the constitution is rigid
it is very hard to pass new laws because they need two-third majority to pass a new law. The
concept of flexibility is an advantage, but there is one more argument to this term that if the
laws can be repealed or amended with simple majority then the protection of those laws will
not be strong as it should be. However, the protection and faith in the laws are strong in the
countries where the constitution is codified.

Defining the UK Unwritten Constitution:

Many people call constitution as a written document if that is true and universally accepted
then obviously UK has no constitution. However, this document of the constitution merely
determines the functions and operation of the governmental institutions and obviously Great
Britain possesses these institutions and rules. We often call UK’s constitution unwritten but in
reality it is written but not compiled in one single document so, it would be better if we call it
uncodifed instead of unwritten. In the UK, constitutional law is the same as other laws unlike
other countries where constitutional is different and superior to other laws. In the UK,
constitutional rules are mixed with the rest of law, such as common law, statutes, precedents
and subordinate legislation Turpin, C. and A. Tomkins.

Advantages and Disadvantages in adopting modern type of constitution:

There are many advantages if UK adopts the modern type of constitution. There will be clarity
and legal certainty in the laws. A codified constitution produces a coherent and definitive
source of ‘fundamental principles and rights’ that will ensure legal certainty and will reduce the
conflict of interpretations. People will know their rights once the constitution gets codified
because everything is written in one single document. It is a potential benefit for the public to
be aware of the laws. “Modern constitution protects individual rights in a good manner because
it can explicitly preserve and protect fundamental rights, administering a strong legal structure
to guard individual liberties against potential intrusions by the state.” Under the codified
constitution there will be checks and balance, and the role of different branches of government,
promoting transparency, accountability, good governance, and a strong separation of powers.

On the contrary, there are disadvantages as well in adopting modern type of constitution. There
will be rigidity in the laws, a codified constitution is perhaps more difficult to amend, requires
complex procedures. As we know, that UK’s constitution is not made but grown with time
according to the needs of the society. If the constitution would be rigid then it would delay
appropriate adaption to societal changes and may lead to calls for substantial amendments or
constitutional conventions. Even in the codified constitution, there will be differences of
opinion and debates about the interpretation of its provisions. The role of the judiciary is to
interpret and apply constitutional principles it is a crucial role, and it can give rise to different
judicial interpretations which can be called as a disadvantage.

USA v UK Constitution:

In this paragraph, we will see the flaws of the USA’s written constitution. A basic paper cannot
be said as a guarantee or safeguard to civil rights. The constitution of USA failed to reflect its
democratic premises is one of the biggest flaws of their constitution. Under the written
constitution, in the history of USA 5 presidents were elected even they had lost the popular
vote on Electoral College. It demonstrates that they rejected the opinion of people means
undermining the democracy. It has never happened in the UK on the contrary, once a Prime
Minister loses the confidence in the parliament he had to resign from his post which upholds
the democracy. In addition, the selection method of Senate in the US also goes against the
principles of the democracy. On the other hand the flexible approach of UK’s unwritten
constitution can be “easily amended by the simple majority of the members of the parliament
while in contrast amending a written constitution needs two-third or three-fourths of the
states.” It demonstrates that those states who will attain benefit from this conduct will never
approve changes that would decrease their political power.” Hence, the best advantage of UK’s
unwritten constitution is that it upholds the respect of democracy and keeps the government
accountable.
There is a quote of Hillaire Barnet ‘if it’s not broken, don’t fix it’. It is a fact “checks and balances
in the UK is enough in respect with the rule of law that states that everyone is subject to law
and no one is supreme. “Parliament would never pass a law that a substantial group of people
would violently disagree with.” One of the sources of UK’s constitution is non-legal conventions
which is enough to hold executive accountable. Nonetheless, the better scrutiny of government
can be done by looking at the attitude of the people. Sir Ivor Jennings stated that “an ignorance
of convention would result in bad political consequences.” Hence, it is evident that even though
UK has unwritten constitution but the system of checks and balances is working smoothly.

My analysis:

Every coin has two sides if UK adopts modern type of constitution they can bring awareness to
people about law. People can understand the laws easily because everything would be written
in one single document which will be easily traced. Modern type of constitution will make the
constitution as the highest law of the land. There will be strong separation of powers because
everyone would know their duties and modern type of constitution will uphold the rule of law.
In modern type of constitution royal prerogatives will also answer of their doings. However, we
shall see the other side of the coin that do we need to adopt a modern type of constitution or
not. I am quoting Hillarie Barnet again ‘if it’s not broken, don’t fix it’. This quote depicts us that
the main goal of the constitution is to monitor the actions of government and protect individual
rights be it written or unwritten. A written constitution has this plus point that everything is set
up in a more confident expression but the working of it is the same as unwritten constitution.
This is a known fact that UK’s unwritten constitution has served quite well to accomplish
‘political, economic, and social firmness. Hence, UK is not in need of a modern type of
constitution.