Commentary by Gabriella ATKINS
The fundamentally distinguishing feature of the UK constitution is its unwritten nature. In comparison to countries such as France, the United States and Germany, there is no single document to which the populace can turn to discover the rules by which they are governed. But that is not to say that there are no sources of the UK constitution. The UK constitution exists as an amalgam of various constitutional sources, some of which are legal and others not. The most substantial of these non-legal rules are conventions – unspoken rules which govern how ministers in government should and must act in a variety of circumstances. Whether or not the UK should have a written constitution is a matter of significant academic debate. Dicey’s formative work on the UK constitution posited that the combination of parliamentary sovereignty and no hierarchy amongst laws meant that statute was the highest form of law within the British constitutional structure. Thus there was no difference between ordinary or constitutional law – all laws were made the same regardless of content. However, more recently Lady Hale has indicated that ‘the Constitution which we have today would have been unrecognisable to…Dicey’. This sense of change is arguably down to the unwritten nature of the UK’s constitution, but should this extend to creating a written UK constitution? This article will consider some of the advantages and disadvantages of both forms and take a look at some of the obstacles which might be met in codifying the UK constitution.
Unlike in France and the United States, the UK has not suffered any serious revolutions which have precipitated the creation of a codified institution. The Glorious Revolution in 1688 is the nearest England has come to a codification of the constitution but in what ways was the resulting settlement – the Bill of Rights – different to the American Revolutionaries’ creation? Prior to the Bill of Rights, the monarch and Parliament in England were both considered subject to the laws of God and nature and it was judges who could identify the content of these immutable principles. However there was a significant amount of debate as to the exercise of the prerogative powers of the monarch and whether these had a superior status to ordinary legislation. Cases such as the Case of Prohibitions (1607), the Case of Proclamations (1611) and Ship Money (1637) were points of contention between the Parliament and monarch as to who had supreme power. Gradually the courts grounded the monarch’s prerogative powers in law, declaring ‘[t]he King hath no prerogative, but that which the law of the land allows him’ (Case of Proclamations). The Bill of Rights therefore was an opportunity for Parliament and the judiciary to formulate the terms under which their monarch could rule – assisted by the fact that James II was deposed and Parliament was inviting William and Mary to rule. But what emerged was not a fundamental redrawing of the British constitution but a re-shuffle of existing principles. Thus the monarch’s prerogative powers were placed theoretically below statute in the hierarchy of constitutional importance, but they were still exercisable largely outside of judicial review until the GCHQ case. It was also assumed that sovereignty would rest with Parliament. Whilst by modern standards the Bill of Rights is not a democratic instrument, it must be understood that it was democratic by the standards of the time. Everyone who was entitled to participate in the law-making process was granted a voice. The fact that such change could be achieved without the drawing up of a new constitution is testament to the resilience and appropriateness of an unwritten constitution. Its flexibility both ensures that revolution is guarded against and allows adaptation once protest has won.
Flexibility is clearly a merit of an unwritten constitution. Arguably in the UK, this flexibility reflects our democratic systems and values and ensures that the constitution is able to adapt to moments of social change. Furthermore the main non-legal foundation of the UK constitution – conventions – is a subtle method of political change. Conventions are unwritten, and sometimes unspoken, rules and guidelines that regulate behaviour. For example, the monarch holds the prerogative power to appoint the Prime Minister, but convention dictates that they will allow whichever minister holds a majority in the House of Commons to govern. An example of the development of conventions in a flexible constitution is found in the Prime Minister’s prerogative power to take their nation to war. Before going to war in Iraq in 2003, Tony Blair sought the approval of the House of Commons – something which was not required as the ability to go to war is traditionally a matter of prerogative power. David Cameron has strengthened this convention by seeking the approval of Parliament in 2011 concerning Libya and in 2013 and 2015 regarding Syria. It can now be argued that there is a strong convention that a Prime Minister will not be able to exercise significant military power without the approval of the House of Commons specifically and Parliament more generally. In this way a fundamental check on government power and authority has developed largely without the need for significant expense, controversy and time. However a key problem with conventions is precisely the thing that makes them so pertinent – their unwritten and unspoken nature. It therefore follows that codification of these conventions would be largely impossible.
By their nature, conventions often do not make themselves known until they are used and it would be an almost insurmountable task to write down all conventions and how they operate. Furthermore to do so would be to create inertia. For example, the conventions surrounding when a minister should resign. Whilst the classic doctrine of individual ministerial responsibility required ministers to accept responsibility for and resign for any errors or failures of their departments, the modern interpretation of this is that ministers will only resign where they feel they have made errors of judgment, particularly regarding issues of personal morality. Thus whilst calls for resignations for incorrect policy implementation were issued for Carole Spelman (Environment Secretary, February 2011), Andrew Lansley (Health Secretary, April 2011) and Jeremy Hunt (Media Secretary, April 2012), none of these ministers resigned but instead lost their seats in a cabinet reshuffle in September 2012. In comparison, Ron Davis resigned in 1999 following indiscretion on Clapham Common, David Blunkett resigned in 2004 over misleading statements regarding his ex-lover’s nanny’s visa application and Chris Huhne resigned in February 2012 following criminal investigations into swapping licence points with his wife. It seems a new convention is arising that dictates that ministers should resign when their action causes a degree of political embarrassment which reflects badly on the Prime Minister. Apparently mistakes of departmental decisions can be more explained by the complex nature of departmental organisation which means the blame for decisions can be shifted around. Conventions therefore fill in the gaps which emerge in a constitution and ensure that the constitution remains relative to the demands of society in any given moment.
A written codified constitution is arguably more accessible to the populace as a whole. Lord Scarman argues that as an unwritten constitution tends to be hidden it benefits those in power who have the education and opportunity to access and understand the constitution and potentially influence its operation. A written constitution would promote the rule of law as a key constitutional principle, rather than parliamentary sovereignty which in turn would enable the courts to exercise a greater degree of review. Currently, whilst judicial review has made significant advances in recent years, the judiciary still comes up against a brick wall when it comes across issues it feels are non-jusiticiable and outside the scope of the powers. A classic example of this is the GCHQ case where Margaret Thatcher revoked the right of GCHQ employees to be members of trade unions in order to prevent potential strikes and national security issues. Whilst the courts felt the decision was beyond the scope of parliamentary power, they did not overturn the issue due to the non-jusiticiable nature of the decision regarding national security. In a codified constitution, the rule of law would be sovereign and thus the actions of Parliament would be open to judicial review. The issue with the UK constitution is that it offers little scope for entrenchment – embedding certain laws in a manner which makes them harder to revoke. Thus the Human Rights Act 1998 could theoretically be repealed by a simple majority vote in Parliament, with the same ease as say a fictitious act governing the colour of dog’s hair. A written constitution provides a hierarchy of legislation meaning that constitutional laws are offered a much greater degree of protection than ordinary laws. But again this feature has advantages and disadvantages. Whilst this protects against majoritarian views and knee-jerk reactions to political events, it means that it can take much greater effort and expense to keep the constitution up to date. Take America’s current issues surrounding gun laws for example. The Second Amendment to the American Constitution protects the right to keep and bear arms. Whilst individual states can legislation to govern this principle, they cannot expressly revoke it. Article 5 provides two process by which the constitution can be amended: an amendment can be proposed either by the Congress with a two-thirds majority vote in the House of Representatives and the Senate; or by a constitutional convention called for by two-thirds of the State legislatures. No amendments have ever been proposed by the constitutional method. The problem America faces at the moment is that too great a protection has been awarded to a right which was created in the context of a Civil War when individual citizens were called upon to serve in militias. The inertia created by a written constitution could undermine its very strength.
All constitutions, whether written or unwritten will contain flaws and will never be able to satisfy the entire populace which they seek to represent. Whilst the UK constitution in its current form may not strictly be that which Dicey envisaged in the nineteenth century, it is a convention which is arguably suited to the times in which it stands. It is a political constitution whose ramifications for not being endorsed or followed lie in the political sphere, rather than the legal. For example, if a Parliament was to revoke the Human Rights Act, it is undoubtable that the political repercussions would be massive. Any Parliament which seeks to act against the wishes of its populace does so at its own peril. Furthermore the practical issues with codifying the UK constitution make it an inherently unattractive option. Our constitution has existed since before the Magna Carta was signed in 1215, it has been developing at differing rates over the centuries – how are we to write down all the nuances that this brings? Furthermore the importance of the flexibility awarded by conventions means that the constitution is better situated to adapt and change according to the needs and wants of society. Take the devolution of Scotland and Wales: a codified constitution would have lacked the flexibility to allow for this transfer of power. Arguably creating a codified constitution would only fracture and permanently divide this precious balance. There is a reason the UK has not suffered the violent political upheavals such as those experienced in the United States and France: our flexible constitution. It is a safeguard which should be protected and allowed to flourish, not whittled down to phrases and words. Parliament has a hard enough time formulating clear and precise statutes, how would they cope with the underpinnings of an entire political nation?
 Lady Hale, The Bryce Lecture 2015: The Supreme Court in the United Kingdom Constitution