Should the United Kingdom Adopt a Written Constitution?

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ESSAY QUESTION: SHOULD THE UK ADOPT A WRITTEN CONSTITUTION? First of all, In order to full explain if the UK should adopt a written constitution we need to define the meaning of a constitution. Duhaime.org defines a constitution “as the basic fundamental law of a state which sets at how that state will be organized and the powers and authorities of government between different political units and citizens.” Macmillianditionary.com goes on to define a constitution “as a set of basic laws or principles for a country that describe the rights and duties of its citizens and the way in which it is governed”. I personally define a constitution as the body of rules set in place in order for that particular society to follow and it also guides that society. Now, we need to know how many types of constitution there is. There are three main types of the constitution which are:
  1. The written constitution.
  2. The unwritten constitution.
  3. Flexible/Rigid constitution.
Basically, we will be focusing on just two types of the constitution which is the Written & Unwritten constitutions. For us to fully grasp this question we need to know what a written and unwritten constitution are: WRITTEN & UNWRITTEN CONSTITUTION Before we go any further, we need to know what a written and an unwritten actually are;
  1. Written constitution: I would define a written constitution as the body of rules is written and can also be found in one single document. Politics.co.uk defines the written constitution “as a formal document which defines the nature of the constitutional settlement, the rules that govern the political system and the rights of citizens and government in a codified form”.
Examples of countries that use a written constitution:
  • USA
  • Argentina
  • Nigeria
Advantages of a written constitution:
  • It is easily accessible
  • The references of a written constitution can be made for the written document and any breach of the principles that are contained in the written constitution will obviously become unconstitutional.
  • It can control the arbitrary rule in a way that it checks on the authority of the head of state so that he would not be able to abuse his authority.
  • It consists of all the basic laws as well as the concepts will all be in one single document.
Disadvantages of a written constitution:
  • Cannot be easily amended
  • Sometimes in an autocratic state, the leaders try and change some of the laws that are in the written constitution, in order for it to suit their personal needs.
  • In a country where the written constitution is used, the constitution is supreme.
  • It is also a rigid type of constitution
  1. Unwritten constitution: Many people assume that when a country has an unwritten constitution it necessarily means that their constitution is literally not written down. However, that is not the case the fact that it is called ‘an unwritten constitution’, does not mean that their constitution is not written down it just means that it cannot be found in on document like the written constitution but is found in various documents. Merriam- Webster.com it defines an unwritten constitution as “not being embodied in a single document but based chiefly on custom and precedent as expressed in statutes and judicial decisions.”
Examples of countries that use an unwritten constitution:
  • Israel
  • New Zealand
  • UK
Advantages of an unwritten constitution:
  • It is also a flexible constitution, meaning that it can be easily amended.
  • An unwritten constitution reshapes. So that it can showcase the times we live in.
  • There is supremacy of parliament.
  • Unlike many countries that use a written constitution, states that use amending an unwritten constitution is way simpler.
  • It is a simple procedure to change the constitution
Disadvantages of an unwritten constitution:
  • There is a lot of uncertainty within the constitution itself.
  • All though the unwritten constitution is very flexible. Political issues can occur that can make the process harder or much more difficult.
  • It is not easily accessible.
DIFFERENCE BETWEEN WRITTEN CONSTITUTION &UNWRITTEN CONSTITUTION The main difference between an unwritten and a written constitution is that a written constitution it can be found in one legal document which is usually enacted in the form of laws. A written constitution is very clear- cut, definite as well as systematic. A written constitution is actually the product that was born from the hard work of the people of that country/state. Basically, this type of constitution is made by a governmental group that is first of all elected into office by the general public of that society/country at a point in time in history. A country that has a written constitution, usually the constitution in that country is usually supreme because most of the laws that are used to guide that country/society is actually derived from the constitution. Also stated earlier, A written constitution is rigid, which means that the procedure to amend if there is anything to amend if there is any situation to do so it is a difficult one. Usually most written constitutions don’t really go through a process of change which can mean that most of the laws that derive from there are archaic or it isn’t necessary for this time and age. For example, the constitution of India was created in the year 1950 so some of the laws that were made then cannot identify with the society change of 2015 and it cannot be changed because the constitution is a rigid one. As for an unwritten constitution, is the type of constitution that most of the governments’ concepts usually are not enforced into law or enforced that is made into an actual law or a body of laws. Usually an unwritten constitution comprises of customs, conventions, traditions and very few written laws that are actually dated. Unlike the written constitution, the unwritten constitution is unsystematic, not precise, not clear- cut. Basically it is the exact opposite of the written constitution. We know that for a written constitution that it is derived from the hard work of the people which most of the time they have no knowledge of this. However, an unwritten constitution actually derives from the conscious hard work of the people of that particular society. Which can mean that the effort that was put there was not really a whole hearted one. An unwritten constitution is not derived from any historical development or event, neither is it created by a governmental group e.g.: Constituent assembly at a certain point in history. Because of this, unlike a written constitution that can be called an enacted constitution. An unwritten constitution is usually called a cumulative constitution. A classic example of an unwritten constitution is the UK constitution which is our main topic of discussion. Also unlike the written constitution, an unwritten constitution is a flexible constitution it’s a flexible constitution which simply means that it can be easily amended or even changed. The unwritten constitution is actually a time- friendly constitution meaning that unlike the written constitution that most of the laws that were made at that particular time in history e.g.: the Indian constitution that was created in 1950, most of the laws that are there are still being used now. This sometimes makes it difficult and confusing for the society of 2015 to comprehend. The unwritten constitution is a different case, due to the fact that that it is flexible which makes the amendment procedure quite simple. Most of the laws are changed during time and it agrees with that particular society at that point in time which makes it easy to comprehend. In a country that makes use of an unwritten constitution, the constitution is not supreme rather most of the countries that practice this constitution has a parliamentary government system which makes the parliament sovereign. Should the UK adopt a written constitution? We need to see both sides in order to decide which constitution will be suitable for the UK government. Advantages of the UK still having an unwritten constitution: First of all, we know that the UK constitution is an unwritten constitution. There are many sources that make up the UK constitution some can be: conventions, court rulings, statutes, common law, European laws, treaties etc. So even though the UK would want to adopt a written constitution it would be a very difficult procedure to begin with. Apart from this the Magna Carta (Which is the name of Britain’s constitution) has a lot of historical history attached to it as well as major historic and political events that is recorded within this constitution, the Magna carta 1215[1] is basically the symbol of successful years of democracy as well as a symbol of unity between all the countries that make the united kingdom. In a written constitution we know that it is also a rigid constitution and whatever is stated down will be there for years to come but with the uk constitution is a flexible constitution therefore making the procedure of amendment or changing the laws entirely easier than that of a country with a written constitution. Also a written constitution is usually created when there is either a government takeover or when that particular country is founded. Based on the fact that the UK is a very old country this can be difficult to automatically change from unwritten to written. Disadvantages of the UK having an unwritten constitution: The main disadvantage of the unwritten constitution of the UK is the fact that there is parliament supremacy. This literally means that whatever the parliament makes into law is final and nobody can repeal or contest this. So the problem here is that, the parliament can make anything they want to be made into law. This means that they can make discriminatory laws or autocratic laws and there is nothing the government or anyone can do about it. An example can be: The US constitution 13th amendment[2] which states that: “No law can be passed that allows slavery as it is therefore unconstitutional”. Even though it is difficult to amend a law in the US constitution is a form of a higher level of authority. Since this is not the case in the UK where the parliament is supreme and whatever laws that are made by parliament are permanent which can make it easy for the parliament to make slavery legal and nothing can stop this from happening. All though this cannot occur since slavery has been abolished and is not legal in the UK, but because of parliament sovereignty there would not be anything stopping them from doing so. Another example of parliament supremacy was when parliament decided to exempt them from the Protection of Freedoms Act 2012[3]. This act was to protect the confidentiality of the correspondence of the parliament and its constituents. Advantage of the written constitution in UK: Stated above we can determine what the advantage of the UK adopting a written constitution is that it will make the laws standard, it will make it clear for citizens to know their rights and their liberties. Apart from that in many countries that use the written constitution, the constitution is supreme which means just like the example of the 13th amendment of the US constitution which stated that no laws that enabled slavery would be allowed if it is, then this would be unconstitutional. Hence making it every law standard and since it is difficult to amend a written constitution it cannot be changed based anybody or governmental bodies whim. Also with the adoption of the written constitution in the UK it can eradicate the use of the monarchy in the UK. Disadvantages of the written constitution: Even though, that the written constitution looks more suitable for the UK to adopt this. However, if it does so there would be things that would not be agreeable or acceptable Such as discrimination. An example of a country that has had discrimination written in its constitution is: The New Hungarian Constitution which was enforced in 2012[4]: Article M. Section 1- Basic stipulation: “Hungary protects the institution of marriage between man and woman, a matrimonial relationship voluntary established, as well as the family as the basis for the survival of the nation”. This is basically saying that it does not recognize same-sex marriages this is highly discriminatory and un- called for. Another example of this discrimination and also Religious bias in this constitution can be found in: Article 11[5]- Freedom and responsibility says that- “Human dignity is inviolable. Everyone has the right to life and human dignity; the life of a fetus will be protected from conception”. This also banned abortion and preventing anyone who believes in this to either have a choice and it does not matter how this was conceived. And it also prevents them from doing whatever they want with their own body. Also we know that Hungary is a Christian nation so therefore we have seen through its constitution that it is possible for a written constitution to have room discrimination and religious bias. This can occur in the UK if a written constitution is adopted, because we know that the Church of England is still the established church of the United Kingdom and they are also represented in parliament as a member of the House of Lords to be exact. All though, it is highly unlikely that the UK can establish law that contain discrimination and religious bias but it is a major maybe that it can occur. Conclusion: Personally, I believe that even though there are a lot of advantages that would makes a written constitution beneficial for the UK, The disadvantages which some is stated above outweigh the advantages. All though an unwritten constitution also has its major issue and problems the major one being: ‘Parliament supremacy’. The following facts summarize my personal view on why I think a written constitution should be adopted:
  1. For the fact that only three countries still have the unwritten constitution; Israel, UK and New Zealand. Shows that the written constitution is much more authentic.
  2. Another is Parliament supremacy since we know from what is stated above, that the parliament has the right to either make or unmake any law they please and nothing can be done about it. This means that they can decide to make laws that infringe on our fundamentals rights and freedoms. This that The Human Rights Act 1998[6] that was incorporated into laws can be affected as well as The European Communities Act 1972[7] which can affect these laws that show the supremacy of the community. And this can affect the laws that show the supremacy of community laws.
  3. Parliamentary supremacy can also be shown in this case: Where parliament tried to introduce The Asylum and Immigration Act Bill 2002 and this also had an ouster clause but due to parliamentary supremacy judicial review was removed from reviewing the failed asylum applicants.
  4. We know that due to the Constitutional Reform Act 2005[8] this made a lot of key changes in the structure of the UK constitution which means that we can adopt other acts and reforms that can push the UK on the path of a written constitution.
  BIBLIOGRAPHY
  1. ‘Definition of a constitution’. 2015 (Online),
www.duhaime.org (29th May 2015).  
  1. ‘Definition of a constitution. 2015 (Online)
www.macmillandictionary.com . (29th May 2015)
  1. ‘Sources of type’s constitution’. 2015 (Online) www.answers.com (29th May 2015).
  1. ‘Difference between a written and constitution’. 2015 (Online), www.preservearticles.com (29th May 2015)
  1. ‘Difference between written & unwritten constitution’. 2015 (Online), www.academia.edu (29th May 2015)
  1. ‘Personal view sources’. 2015 (Online) www.thewilberforcesociety.co.uk (5thJune 2015).
 
[1] Magna carta 1215 constitution of the Uk. [2] The USA constitution (The bill of rights). [3] See the protection of freedom act 2012. [4] See article M, S(1) of New Hungarian constitution [5] Article 11 of New Hungarian constitution [6] The Human Rights Act 1998 [7] The asylum and immigration Act (bill) 2002 [8]Constitutional Reform Act 2005.
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