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Our Unwritten Constitution


A good friend of mine on Twitter asked that one of my first posts on this blog address the nature of Britain’s unwritten constitution.  I will attempt to do so now.

Firstly I think it should be remarked that it’s an oversimplification to say Britain’s constitution is ‘unwritten’.  In actual fact, a substantial portion of it is written down.  It consists of:

  • Acts of Parliament – the earliest of which still in force is the Statute of Marlborough of 1267.
  • Judicial rulings, in particular the rise of judicial review since 1999.
  • Treaties, including European Union law.
  • Conventions and traditions, such as the fact that the Queen delegates her executive powers to the Prime Minister.

A more accurate description of the UK Constitution is in fact ‘uncodified’, which means that the Constitution is not written down in one document.

Britain isn’t alone in having an unwritten constitution.  Israel has a Basic Law’, comprising several fundamental laws passed over the years since Israel’s independence in 1948, and New Zealand’s constitution consists of two parts: the Treaty of Waitangi of 1840, in which New Zealand Māori chiefs acknowledged the sovereignty of the British Crown; and the Constitution Act of 1986, which ‘domiciled’ New Zealand’s constitution and ended its status as a piece of British legislation.

So two questions arise: firstly, why, in the history of the UK (and indeed of England in particular) was the constitution never codified, and secondly, is this a good arrangement to have?

I will start with the why:

One pattern of historical development in constitutions is that new constitutions only arise in the aftermath of a major upheaval.  So, the French, German and Russian revolutions were followed by the creation of new constitutions as the previous system was found to be no longer valid or workable.

Another pattern is that written constitutions are made to create a ‘power map’ for a country to resolve a power vacuum.  For example, the United States Constitution was written in 1786 after it was recognised that the previous constitution, the Articles of Confederation, was not suitable for the effective governing of the new, young country; the Articles were seen as not assigning sufficient power to the centre and leaving the Union exposed to schism.

(Ironically, the US Constitution owes a great deal of its nature to what the Founding Fathers believed to be the best, most liberal constitution in the world – England’s.)

Britain, of course, never had a real, permanent upheaval, or a power vacuum.  Well, we did, once – the Interregnum which brought about the Commonwealth saw the creation of England’s one and only ‘written’ constitution – the Instrument of Government of 1653.  When the republic collapsed, it, as with all other laws passed by Parliament since 1642, were abolished in the Act of Indemnity and Oblivion of 1660, and the previous, uncodified constitution restored.

So, without this vacuum, there was no need to completely write the constitution from scratch again; it has grown, organically and naturally, from its early monarchical and despotic beginnings into a practical system of liberal government.

So, now, onto the second point – whether this arrangement is good for Britain.  I say it is.

In recent times, there have been calls to codify the British constitution.  There are some common arguments in favour of it:

  • Since it is all written down it provides easy access, so it makes it easy for one to know their rights.
  • Entrenched Laws- there are certain provisions that are fixed safeguarding them from interference by the Government of the day.
  • It is hard to change, so limiting the power of the government.

I do not think, however, that these advantages outweigh the advantages of the status quo.

Firstly, a lot of modern constitutions are written by constitutional lawyers.  To accommodate special interests, these constitutions incorporate complicated procedures to keep them committed to the constitution For example, Belgium’s system of consocationalism.  The US Constitution is relatively brief, but this has been coupled with to two centuries of debate over what the constitution means.  In short, it’s just as easy to get lost in exceptions and interpretations in a written constitution as it is for an uncodified one, particularly if the constitution is getting a bit old.

Secondly, entrenchment – the treatment of constitutional amendments as special cases and make the threshold to pass them higher than normal – in my opinion serves to hamper constitutional development.  An uncodified constitution is a double-edged sword.  It should be recognised that for any government to violate a long-held and deeply respected aspect of even a convention of the constitution will land itself in hot water.  Conventions are powerful – they exist because all the players accept them as fair.  Once you pull one away without mutual consent then you risk the whole edifice tumbling down.

For one example, a government which consistently failed to give Parliament sufficient time to consider legislation shouldn’t be surprised if its majority disappears. By throwing out even the informal rules of the game a government risks all conventions, including those which work in its favour, being thrown out the window.

Entrenchment, inhibits changes in the constitution which the country may desperately, urgently need.  George Washington would be able to recognise easily the job that Barack Obama currently does.  George III, however, would hardly recognise a bit of Queen Elizabeth II’s, and certainly a Palmerston or a Disraeli would be startled by the fields of government Parliament now inquires into, including the composition of the House of Lords.

Britain’s flexible and uncodified constitution has allowed Britain to alter and adapt its system in tiny bits and pieces over time, maintaining continuity while endorsing change; compare this with France’s history of violent upheavals, with sixteen constitutions throughout the Nineteenth and Twentieth Centuries, culminating in the Fifth Republic, a much more majoritiarian and centralised state than France has seen since 1789.  My point is that constitutional entrenchment does little to really ‘constrain’ a government; rather it bottles up flaws in the existing constitution behind a system which (with the best of intentions) protects minorities, until finally the constitution eventually breaks down and a new one must be created from scratch, causing much harm and distress to the nation and its economy in the meantime.

The written constitutions that exist in the world today are for the most part very young.  America’s remains by far the oldest (1786), and many Commonwealth countries saw their constitutions arise in the mid to late 1800s.  Beyond these countries, most constitutions have been in existence since the Second World War, and a great many of them since the fall of Communism in 1989-91.  Germany’s was created in 1947, Belgium’s in 1992, Spain’s in 1974.  This proliferation of young constitutions in the aftermath of the collapse of former regimes has led many to believe that written constitutions are a tool to prevent tyranny.  They are nothing of the sort – no written constitution has prevented a tyrannical government from seizing power.  Constitutions establish the rules after the former rules have been destroyed.  Without such an event, Britain will not need a written constitution, and it’s wrong to presume a written constitution can constrain the government any better than the present system does.

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Categories: UK Constitution
  1. April 9, 2013 at 2:42 pm

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