The British constitution is no longer fit for purpose?
A constitution comprises the laws, rules and customs that establish the organs of a state, such as the government legislature and courts, the relationship between those organs, and the relationship between them and the people. The UK is distinctive and unique due to its constitution being uncodified (unwritten) in a single document, many argue that although it has held as in good stead for many centuries it is no longer fit for purpose in the 21st century.
There has been a strong case presented for the constitution, and that it is carrying its purpose effectively. Due to its uncodified flexible nature Parliament can amend or create any laws. This is because uncodified constitutional laws are not entrenched, making the basic provisions of the UK constitution as ease to change as any other law, so it can keep up with the changing time and the changing Britain. This is best shown at the time of the Dunblane junior school massacre in Scotland where many people died due to gun violence where 14 students died and 1 teacher, however parliament at that time responded quickly was able to change constitutional law on guns banning them. Unlike the USA’s codified constitution, where there was a mass shooting in San Bernardino, California in 2015 where there too were many people killed, however to change the 2nd amendment in the US constitution would require 2/3 of both houses of congress and support of 50 states making it very inflexible and hard to change, thus showing that our constitution is fit for purpose.
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Another example of the UK’s constitutions being very flexible, is that it can also mean government can perform a better job. This is because it allows the UK’s government to be more stable and more accountable by creating constitutional acts that will aid the government, such as the Fixed-term parliament Act 2011 under the hung government which states in section 1 that the government can only hold general elections every 5 years thus meaning that the coalition government must stay the full five years creating stability, and in section 2 it says that 2/3 of the house must vote for a vote of no confidence to remove the recent one, also adding to the stability and accountability of the government. Unlike USA’s codified constitution which causes gridlock to create laws, thus showing that UKs constitution can adapt to any circumstance.
Uncodified constitutions do not give as much power to judges in the Supreme Court as codified constitutions. Codified constitutions give too much power to the unelected and unaccountable judges. As we know codified constitutional law is superior to statute law, creating the need for a supreme court to check if and when the constitution has been breached. In countries like the USA, the Supreme Court can declare acts of the congress unconstitutional and are able to strike it down, giving immense power to the nine judges nominated for life by the president.
In the UK judges can only issue a declaration of incompatibility, but cannot strike it down, so if parliament wishes they can ignore the declaration, and retain parliamentary sovereignty. Many argue that “if it ain’t broke, don’t fix it”, just regularly update it. An example is the Criminal Justice Act 2003 which parliament changed, the jury selection and abolished double jeopardy to go after Stephen Lawrence killers again, however now it can be used against everyone even if they were found not guilty. They also changed the Criminal Justice and Public Order Act 1994 which they abrogated a defendant’s right to silence so it can be used against them. Unlike USA which has these Acts enshrined in their constitution (5th amendment) thus preserving human rights.
On the other hand, a strong case was also presented against the UK’s constitution in that it is in fact “broken”. When the Scottish Parliament and the Welsh and Northern Ireland Assemblies were established in 1998, the Labour government of the day must have regarded this reform as ‘finished business.’ However, issues surrounding devolution remain contentious. The Welsh Assembly gained additional legislative powers under the Government of Wales Act 2006. The Scotland Act 2012 implemented most of the recommendations of the Caiman Commission, this most notably enhances the fiscal powers of the Scottish Parliament. Which brought the famous West Lothian Question back into public consciousness. It calls on the House of Commons to adopt a principle which expects the UK government to act with the consent of only English MPs when proposing English only legislation, which toady creates the Grand legislature committee that only has English MP’s so they can vote for English laws. Uncodified constitution lets organic development as our constitution develops.
Another criticism against the constitution is that it provides a weak protection for individual’s rights and civil liberties. In part, this is a consequence of elective dictatorship and the fact that, except for elections, there is not many things that forces the government to respect individual freedom and basic rights. Elections can only do this inadequately as they tend to empower majorities rather than minorities or individuals. However, this concern also arises from a traditional unwillingness to write down individual rights and freedoms, to give them legal substance. Individual’s freedom in the UK traditionally rested on ‘residual’ rights that were supposed to be part of common law.
The passage of the Human Rights Act 1998 has changed this, by both defining rights more clearly and making it easier for them to be defined in the court. However, it stops short of being an entrenched bill of rights as its provision could be set aside by Parliament, as has occurred before, for example in 2010 when the Treasury froze assets of terror suspects, and after being ruled ultra-vires by the Supreme Court they simply used Parliament to legalise the action. In this way, the government can legislate around rulings handed down and avoid the check on power. It could be showing because there is not power to judges that is not necessary a good thing because that means that there is a weak protection of rights, which could show that perhaps the constitution is not fit for purpose.
One of the main criticisms against uncodified constitutions is that in practice, it gives rise to the problem of ‘elective dictatorship’, first coined by Lord Hailsham. It draws attentions to the simple facts that, once elected the government can more or less act as they see fit until they come up for re-election. This is because sovereign power is vested in the hands of Parliament which is routinely controlled, even dominated, by the government of the day. The problem is that due to power being in the hands of the executives, they are allowed to shape and re-shape the constitution however they wish, an example is the Fixed-term Parliament Act that I have mentioned before, however because is still being used today it entrenches the government not only to last its full five years but also so that it cannot be removed easily, thus increasing the power of the government, creating the possibility that the government may become oppressive and tyrannical.
The final criticism is that the UK constitution is sometimes difficult to know what it is saying. Confusion surrounds many constitutional rules because, they are become what a majority of MP’s want it to mean. This applies particularly to the constitution’s unwritten element. For example, the convention of individual ministerial responsibility requires that ministers are responsible for blunders made by their departments. But does this mean that they should resign when civil servants make mistakes or only when mistakes are made by ministers? Furthermore, does ‘responsibility’ implying that anyone has to resign, or just that the minister must provide answers and promise to put mistakes right? Thus coming to the conclusion that the constitution is made up as we go along.
In conclusion, there are arguments for and against the claim that the constrictions is fit for purpose. Some argue that the constitution is not fit for purpose and often argue it should be codified, in order to set our rights in stone and make it clearer. On the other hand some argue that it is fit for purpose, who stress that its flexibility and adoptable rights. However my view, is due to its weak protection of rights and its vagueness, makes me come to the conclusion that the constitution needs to be codified because it is not fit for purpose.