The Codification and Separational Powers of Constitution of United Kingdom
During this essay, I will be analysing the current state of the United Kingdom's constitution and whether it is still is appropriate, and of a necessary standard, for this century or whether it needs modifying. At this present time, the current state of the British constitution is an uncodified constitution. Before answering the question and analysing the United Kingdom's constitution and its sources, it should be first acknowledged that the UK’s system is different from most territories where the constitutions may be codified. The British Constitution has become more and more written in the course of the last few years. Statutes are what the majority of the UK’s constitutional arrangements are laid down in. In other jurisdictions, there is a clear distinction between Constitutional Law and Regular Law.
An uncodified constitution refers to a type of constitution where the essential rules usually take the form of various sources including a variety of statutes and legal instruments as well as customs, and precedent. In the United Kingdom, the constitution is uncodified which means it is not confined to a single written document. The constitution’s understanding is achieved by reading commentary usually by government committees, or the judiciary. In this type of constitution, courts, legislators and the bureaucracy may recognize these elements as binding upon government and limiting its powers. [footnoteRef:1] [1: In-text: (Johari 167-169)
One strength of an uncodified constitution is that it is highly flexible. This means that it is highly adaptable and can easily evolve and adapt to changing times, such as in modern times where it is necessary to change laws so that we can accommodate news fashions, views, and changes in beliefs. Due to the United Kingdom having an uncodified constitution it means that all is needed is for parliament to recognize the need for adjustments and then just make the necessary amendments. Consequently, it is observed that traditional laws in the UK constitution do not inhibit progress but are instead subject to change to align with changing situations. This feature is an entrenchment and is best suited to reflect a constantly changing world when you realise that there are democratic procedures put in place and that parliament and the judiciary are there to safeguard the constitution. Unlike the unwritten constitution, the written constitution is very inflexible and fixed which means it is quite challenging to modify. For example, if you look at a constitutional model, such as the constitution in the USA, it helps understand the difficulty of trying to change or modify laws.
Apart from this flexibility, another strength of an uncodified constitution is that policies can be quickly pushed through in times of need. This is because the United Kingdom has an uncodified constitution which means the use of conventions and judicial judgments rather than codified constitutions that are written and therefore difficult to change results in higher and more efficient responses to societal changes. Judicial judges in their rulings can reflect on changes as they are times, making it possible for the judicial system to expand free any confines. This is something not possible in many codified institutions such as in the United States of America where in order for a change to be made there must be a majority of at least two thirds of congress agreeing before getting approved by over 75% of states which as you can expect, is a hugely difficult task to carry out any proposed amendments. This means that the fact the United Kingdom has an uncodified constitution means that radical changes can take place a lot faster than in other countries where it can take many decades. For example, in the United Kingdom due to changing attitudes, by 1834, Black slavery was virtually abolished whereas, in the United States, this wasn't the case across the whole country until after 1865 which was when the 13th amendment got passed. This delay can be argued due to the nature of their constitution in comparison to the United Kingdom's as much more agreement is needed across the state and congress and thus is particularly more time-consuming.
However, whilst the flexible nature of the uncodified constitution can be seen to be positive as it can be seen to be more efficient in social changes and are easily adaptable, this flexibility can also be criticized. For example, due to the 'unwritten' nature of the United Kingdom's constitution, it means that they could be subject to multiple interpretations. This means that there is often confusion surrounding constitutional rules. For example, the opposing interpretations taken by the executive and judiciary regarding the entitled power to prorogue i.e. suspend Parliament. An example of this 'The convention of individual ministerial responsibility', which is a constitutional convention that says a cabinet minister accepts whole responsibility for the actions of their ministry or department. However, it can be argued that this lacks clarity, for example about whether 'responsibility' means resignation.
Another weakness of having an uncodified constitution and why it may need amending is that because the constitution isn't written and fixed, only the elected Parliament can decide on the constitutionality of laws. This means the unelected judiciary has no key political role when it comes to the constitution. This is a huge risk given the possibility of powers getting abused if the constitutional right of the leader is unclear. An example of this is Blair passing through many divisive laws such as his decision in 2004 to triple tuition fees to £3,000 per year. This is a prime example of powers getting abused as this was done despite a backbench rebellion of 72 MPs and it can be argued that this may not have happened had the United Kingdom had a codified constitution. Lord Hailsham coined this term as an 'Elective Dictatorship' to describe the UK constitution. As in theory, it means whoever is currently in charge, has a 'dictatorship' to reshape the constitution itself, at least until the next election as all power is concentrated in the hands of the executive.
In conclusion, there have been questions over the codification of the UK constitution to ensure the complicit separation of powers. Nonetheless, the various strengths have been noted in the discussion above which have been observed about the unwritten characteristic of the UK constitution. The UK constitution is guided by numerous principles, parliamentary supremacy being the main pillar. While this can be criticized for reasons such as 'Elective Dictatorship' as argued by Lord Hailsham all power is concentrated in the hands of the executive as well as argued that the constitution lacks clarity as its 'unwritten' nature means that they could be subject to multiple interpretations. However, on the whole, it can be argued that the advantages outweigh the disadvantages for as this characteristic of parliamentary supremacy being the main pillar has also produced advantages such as promotion of democracy, accountability, and transparency, and flexibility in terms of when change is needed for example, due to changes in social trends this transparency permits easy adjustments which makes the law relevant. This has spared the UK difficulties, which often accompany change agendas in the written constitution. The unwritten constitution has worked for the UK and even though minor changes are inevitable, it remains more practical than the codified constitution and may even drive other nations to acclimate such characteristics.
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