My views on the UK Constitution

Recently, I have been thinking about the UK constitution in quite a lot of depth. Before starting University, I would not have been able to tell you what a constitution was. However, after studying it in my Public Law lectures, I have developed a deep interest for it. I have become especially interested in the unique structure of the UK constitution, and have decided to write a blog post on my views of it.

Unlike the vast majority of constitutions around the world, the UK has an unwritten constitution. A constitution will set out laws relating to the Governmental (executive), Parliamentary (legislative) and judicial powers, as well as the rights of individuals. Most countries around the world have a written constitution, whereby the laws and rights are, as it says on the tin, written into a single document. By contrast, the UK equivalent of these rights and powers are created and developed by judges at Common Law. An unwritten constitution brings both many challenges, as well as many positives, yet the demand for a written constitution is ever increasing.

Typically, a constitution will be codified after a major historical event, for example, the French constitution was written after the collapse of the monarchy. Yet, leading UK academic, Professor Jeff King advocates for a written constitution, and theorised that the constitution should be generational, being written by lay people once a generation. He argued for the idea of a democratic constitution, proposing that people would be selected at random to draft the constitutional document which would then be voted upon. The democratic constitution idea combined the ideas of John Rawls, Jurgen Habermas and Philip Pettit, in which King selected four desirable features. These being: reconciling rights to distributive justice and the democracy, creating a distinction between justice and legitimacy, the conception of the citizen and social co-operation and public deliberation and rational argument. A lot of people see King’s idea as a major step forward in constitutional reform, however there are many issues that arise due to its extreme contrast to the current constitution. The main issue regarding the democratic aspect of the idea, is that it is too complex to create a burden for lay people to both draft and vote upon the constitution. We have seen in recent years that when a major question is put through a referendum a lot of controversy arises. The European Union Referendum Act 2015 saw the government propose a referendum to leave the EU with votes marginally being in favour of ‘leave’. This referendum was one of the most complex the UK had ever seen. The constitution is so much more complex than Brexit, so holding a referendum on such subject would create uncertainty and confusion. Furthermore, it should not be up to lay people with limited legal knowledge to set out the powers and rights needed in a constitution. At this time, there is also very little public desire for a written constitution, therefore the people selected to draft are unlikely to co-operate, making it almost impossible to draft correctly. Despite the proposal of the democratic case by Professor King, a written constitution is likely to be unsuccessful in the UK.

As the current UK constitution stands, it is very easy to evolve. Due to its flexible nature and Common law structure, it is able to reflect the most recent social attitudes and is ever evolving. One of the main shifts in societal opinion, was that surrounding same-sex marriage; the law was able to adapt to this change and it was legalised in 2013. In contrast to this, the written constitution of the United States of America has to go through a lengthy process whereby the Congress and individual states have to vote for amendments. This makes it hard for there to be major change in the law. However, it could be argued that the constitution is currently too flexible and allows the government to have too much power when legislating. In the case R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) 2017, the government abused their power by triggering Article 50 without a supporting act of parliament. A written constitution would ensure that there is a clear and distinctive separation of powers and wouldn’t allow one institution to gain excess amounts of power.

One of the first people in the UK to discuss the codification of the UK constitution was Bentham in 1830s. Bentham advocated a UK constitution codified around the utilitarian principle of the ‘greatest happiness of the greatest number’. This would suggest that the constitution would be written upon the views of everyone within the UK. This would create a constitution that reflected the views of society as a whole, and not just those in power. This, however, would open the ‘floodgates’ in what should be added into the constitution; no person in society has the same views for everything, so gaining the ‘greatest happiness’ is something that would be very hard to do. This implies that Bentham’s theory would not work with a modern constitution. This is contrasted by the views of A.V. Dicey, who advocates a common law constitution. He described the UK constitution as “Judge-made and it bares on its face all the features, good and bad, of Judge-made law.”. Dicey identified two core “Judge-made” principles of rule of law and parliamentary supremacy which have provided lasing guide to the courts regarding the constitution. The views of Dicey very much reflects the UK constitution in its current form, it has been in this form for over a century. It could be argued that ‘if it isn’t broken, don’t fix it’, despite the current constitution having a few issues, there is no need for major reform. The arguments of Dicey are much stronger than those of Bentham, the UK has managed for years without a written constitution, so there is no need to codify one now.

To conclude, I believe that the argument for the case against a written constitution is much more persuasive than that of the argument for. At this current time in society there is no need for the complexity of writing a constitution when a perfectly acceptable Common law system in place. The UK has so much more freedom than those who have a written constitution, and changing this would have detrimental effects on the country as a whole. In my own opinion I believe that the arguments for a written constitution by the likes of Bentham and King are not arguments regarding constitution issues but instead ones avoiding them. These academics believe that a written constitution will resolve many of the issues the UK is currently facing, but it is more likely to be a short-term fix for something that needs much more time and attention given to it.