Should the UK adopt a written constitution? A constitution is the commonly acknowledged body of principles or established regulations and procedure to which nation states are governed by and recognised within Parliament. Britain, along with Israel and New Zealand, is one of only 3 democracies in the world not to have a written constitution (Consoc, 2009, NP). Constitutions come in two commonly accepted forms of written and unwritten, and can often be referred to as ‘codified (written) and un-codified (unwritten)’. Nation states’ constitutional acts compose of laws, traditions and general codes to which that country abides by;they are ‘the rules that govern the political system and the rights of citizens and governments in a codified form’(politics, 2004, NP). Constitutions are important and necessary because they are the guidelines by which governments are controlled, and it can be suggested that constitutional acts can bring more power to the general public. Although the United Kingdom does not have one formal written document it does have many notable constitutional documents such as: EU Law, and Common Law, ‘along with the 1689 act of rights that defines powers of Parliament through the Monarch’ (politics, 2004, NP). It has been suggested that the British constitution can be summed ‘in eight words: what the Queen and Parliament enact is law’ (UCL, 2015, NP). On one hand, written constitutions are often understood to be more reliable for the people of a nation as they ‘provide greater accountability and democracy’ (Rishman, 2015, p.1).Most European and Common Wealth countries employ a written constitution on the basis that ‘it is the defining essence of a country’ (Rishman, 2015, p.1). On the other hand, some written constitutions include irrelevant, outdated guidelines that are in no way applicable to today’s society; an example being the US constitution which still includes ‘material regarding the rights of slave owners’ (Rishman, 2015, p.1), although these provisions have long been dormant it is easy to see the risk or offence they could provoke.
There is considerable debate as to ‘whether a written constitution ought to be introduced in order to align the UK with other nations’ (Consoc, 2009, NP). Although it can be argued that, on the basis of the documents already provided, Britain and The UK does not need a formal written constitution as it has survived to a satisfactory level for hundreds of years without the service of a written constitution. In addition, countries which do not have a written constitution are usually noted to have unwritten constitution, also known as un-codified constitutions. The name of ‘unwritten constitution’ is often misleading as it suggests that a country has no written constitution to bind or protect its people and government, which is usually not the case. An un-codified system is a constitution in which the fundamental guidelines and regulations of a country comes from the customs, traditions, usage and statutes of a country’s legal system: ‘The “Unwritten Constitution” refers to the ideas and processes that are accepted as a needed part of government’ (DeLorenzo, 2000, p.1). It can be seen that countries which have un-codified systems are at risk of having no system in place to limit the power of the country leader. Written constitution sets out clearly the rights, regulations and laws of that country. Without a written constitution ‘it makes it difficult to know what the state of the constitution actually is’ (UCL, 2015, NP). Therefore, if the constitutional system is unclear this ‘suggests that it is easier to make changes to the constitution than countries with written constitution’ (UCL, 2015, NP). Such examples can be seen in the recent changes to constitutional reform of since 1997 (UCL, 2015, NP). Although this may appear to be a risk to government power, there is no evidence to suggest these changes were for the worse of the country or to assist in the facilitating power of the leadership. The aim of a written constitution is to ‘avoid a concentration of power to any one government’ (Avgousti, 2011, P.1). Therefore, it can be understood that written constitutions are viewed as being very rigid and do not allow for any flexibility and are usually unable to be adapted to suit the agenda of modern society. An example of rigidity in such written constitution is with the ongoing attempt of the US to modify its gun laws.
The second amendment of the American written constitution states: ‘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’ (Brooks, 2013, NP). This law was provided shortly after the constitution in order to give more power to the state militia. The amendment was created in order to give the citizens of America more opportunity to fight back following the invasion of the English and the use of gun power to keep Britain out of America.
Although this amendment was created for the interest of the people at the time it can be argued that it does not comply with modern society and the needs of the different states of America. The problem, in this specific case with the rigid written constitution is within the interpretation of the meaning and the nature of the constitute it aims to defend; ‘since its ratification, Americans have been arguing over the amendments meaning and interpretation’(Brooks, 2013, NP). There has been lots of debate in over the constitution and the first rulings over this issue came in ‘1876 in U.S. v. Cruikshank. The case involved members of the Ku Klux Klan not allowing black citizens the right to standard freedoms, such as the right to assembly and the right to bear arms’(Brooks 2013, NP). The constitution clearly states that it is the right of all citizens to bear arms however this was debated at such a time of racist tensions in America. Since this there have been two more cases which debate the constitution and its meaning and interpretation in the cases of Presser V Illinois and the case of Miller V Texas (1894). Although in some situations having such a rigid written constitution protected some of the citizens in the above case it can also be argued if its citizens are debating the amendment, its use in the constitution is questionable. In the above cases the debate has been against state interpretation of American constitution. In which case it can there be seen that a written constitution for the whole country is limiting as different areas may have different cultural needs that the constitution does not cater to. In the debate of this amendment of written constitution there is two main issues of interpretation; how the individual state interprets and applies the amendments, compared to the interpretation of individual citizens.
Both arguments are helping ‘to shape the on-going gun debate’ (Brooks, 2013, NP). This ongoing debate on one amendment and a nations inability to come to one decisions provides a strong argument for the limitations a written constitution may provide for such a large and culturally diverse country. It suggests that Britain, which also deals with many of the same cultural difference and state divisions that America faces, although on a much smaller scale, may also face similar interpretational difficulties. It can be understood that a written constitution ‘does not contain all the rules in which a government depends’ (Avgousti, 2011, NP). If this is the case it can be understood that a written constitution would have no positive benefit to UK government, its citizens or its laws. The written constitution is largely tied up with the government and therefore may not be practical to the individual needs of the citizens. One of the most well known cases that has arisen from the debate between written and unwritten constitution is the case of Roe Vs Wade (1989) in which the matter of dispute was the woman’s right to an abortion. This case ‘promoted a debate that is still ongoing today to weather abortion should be legal, and who should decide the legality of abortion’ (Rubenfeld, 2001, P. 6). It can be argued that again, this matter can be applied to the individual need of the state and to have only one amendment in the constitution for such a sensitive cultural, religious and personal situation is limiting to the needs of the individual. In this case is can be understood why England does not adopt a written constitution as it is un-desirable to reduce the state system down to a single document (Parliament.UK, 2014, P.1). The UK’s reluctance to do so is an indication of the success it has brought to the country. The result of a nation to produce a written constitution has almost always been the direct result of a national catastrophe, a revolution, or due to a grant of independence from a colonial power ( Parliament. UK, 2014, P.1). In which case, these situations have not, as yet, been directly applicable to the UK. Many people believe that the UK should adopt a written constitution as it is understood to ‘restrain the unbridled power of the executive’ (Politics, 2004, P.1). The former coalition government directly stated they would not and ‘had no plans to adopt a written constitution, however they would look into the creation of a British Bill of Rights’ (Politics, 2004, p.1). Again this suggests that the statutes that are in place, statues which are written and passed by parliament have a higher legal status than a constitutional amendment, are more necessary and effective to the British government that the creation of a constitutional document. In conclusion, there are strong arguments for both sides of this debate as both written and unwritten constitutional systems have advantages and disadvantages.
The written constitution was originally created with the aim of protecting the citizens of a country and to avoid over-powering tyrannical governments (Brooks, 2013, NP). An unwritten constitution also provides advantages as it can be modified to change a law for the better of the country; furthermore ‘the legal process of statues has higher legal authority than that of an amendment’ (UCL, 2015, NP). With regards to the UK’s need to adopt a written constitution, the creation of such a document is not necessary and the UK should not adopt a written constitution. There are many debates that question the legitimacy of a nation that has an unwritten constitutional law, however the necessity for unwritten constitutional rights has begun to form an important role in Supreme Court decision making process ( Rubenfeld, 2001, P.7). Therefore, if the need for unwritten constitutional rights has been found useful in the American Supreme Courts, there is evidence to suggest that the written constitution is in flawed and limiting for the individual situations of its citizens. In creating one document to apply to an entire nation limits the unique quality of each legal case debated in court. The current UK system, which encorporates many legal documents both of its country as well as from EU Law and the high legal power of the statute making process provides a more complete and secure legal system that does not limit the rights of the people or the rights of the government. Word Count: 1,862. Bibliography Brooks, C. (2013). The Second Ammendment and the rights to bear arms: https://www.livescience.com/26485-second-amendment.html (Accessed 23.05.2015). Consoc, (2015). A Written Constitution?: https://www.consoc.org.uk/other-content/about-us/discover-the-facts/do-we-need-a-written-constitution/ (Accessed 23.05. 2015). Rubenfeld, J (2001) The New Unwritten Constitution.
Yale Law School faculty scholarship series. Yale Law School: Yale. Parliament UK (2014). Arguments for and against written constitution: https://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/463/46308.htm (Accessed 27.05.2015). UCL School of Constituion Unit (2015). What is the UK Constitution: https://www.ucl.ac.uk/constitution-unit/whatis/uk-constitution (Accessed 27.05. 2015). Avgousti, C (2014) The UK British Constituion. In need of a written one?: https://www.lepetitjuriste.fr/droit-compare/the-unwritten-british-constitution-in-need-of-a-written-one (Accessed 27.05.2015) Politics.UK (2004). Written Constituion: https://www.politics.co.uk/reference/written-constitution (Accessed 26.05. 2015). Risman, B (2015). A Written Constitution. The Law Journal UK via: https://www.thelawjournal.co.uk/Article%20a_written_constitution.htm (Accessed 26. 05. 2015).
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