The constitution of the United Kingdom, being unusual because of its unique nature, has been a subject of a long historical change, as its evolution is still an ongoing process. In this essay I am going to analyze the purposes of the British constitution, the impact of the non-codification, considering the demands of the contemporary society and state, and whether codification would be an effective constitutional reform.
Elliot and Thomas define the constitution as a set of rules and principles, which regulate the allocation of power between different state institutions and ‘…determine where government power stops and individual freedom begins’.1 Therefore, the most straightforward constitutional task is to administer the relationships between the country’s institutions, and the state and individuals. A distinctive feature of the United Kingdom’s constitution is its un-codified status, equated with the lack of one single document, comprising the whole law of the country.2
This fact that ‘…important principles in the UK are not written into laws…does not mean that there are no such principles’.3 In other words, there are some facets, which exist not because of the constitution, but because of their nature. Probably, the central and most controversial of them is the principle of parliamentary sovereignty. Sir William Wade suggests that parliamentary sovereignty is a ‘political fact’, which is a result of the Glorious Revolution and, as it is not created by a Statute or Case Law, it cannot be eradicated, except through revolution.4 Furthermore, according to Dicey, Parliament can legislate on any matter; it is not bound by its predecessors and cannot bind its successors; it cannot be questioned by the court, because it is a supreme lawmaker.5 Therefore, the existence of a superior authority, which can be demolished only through revolution, or which can make and unmake any law without being bound or questioned, is a premise for constitutional flexibility, as the non-codified status allows unhindered change of law, whenever a reform is needed, not requiring any special legal procedures. Consequently, the “unwritten” constitution excels with adaptability and resilience, developing a premise for sufficient satisfaction of the individuals’ and state’s emerging needs. This concept can be considered through the enforcement of the Parliament Act 19116, which undermines the enrolled bill rule. As a result, a parliamentary Bill can be enforced without the consent of the unelected body of the House of Lords. In the case of Jackson v Attorney General7 this Act was defined as primary legislation, which had legally created a new procedure of passing Bills. Hence, the legislation can be enforced even when the House of Lords disagrees. The inference is that the Parliament, enforcing constitutional adaptability, also contributes to strengthening of democracy as a fundamental principle of the common society and state. This is supported by the retired US Supreme Court Justice John Paul Stevens who argues in his book that the constitutional change must be made towards non-codification so as to reinforce this fundamental principle.8 On the other hand, the result of the case of Burmah Oil Co9 reveals a pitfall in the idea of parliamentary sovereignty, flexibility and, consequently, the uncodified constitution. Parliament can, in theory, legislate retrospectively10 and override existing statutes, because it can make and unmake any law without any special procedures. The principle of absolute parliamentary power is a necessity, preventing society from living in a state of “every man, against every man”11, but applying the viewpoint of Dicey and Hobbes, the Parliament can remove socially indispensable statutes, such as the Human Rights Act 1998. Moreover, the case of Pickin12 establishes the concept that courts cannot question the validity of an Act, even if the Parliament, using fraudulent facts or statistics, misleads those, who are subjects to this Act. Therefore, human rights are susceptible to what Parliament wishes to do. However, the Parliament will be publicly criticized and judicially scrutinized if it operates controversially and abolishes the Human Rights Act 1998. Conclusively, the fact that the Parliament can enforce an Act without special legal procedures is a prerequisite for constant adjustment of the policy towards the common needs of the society and state.
Professor Barber considers the ineffectiveness to treat constitutional changes ‘as a package’,13 which will be an inevitable consequence of codification. The uncodified constitution allows piecemeal treatment of various areas, which do not have anything in common, when alteration or improvement is needed. This fact indicates that specialized thorough analyses, considerations and debates have been implemented by the Parliament through the process of legislating on a particular subject. To tie ‘…unconnected changes together runs the risk that unpopular and unwanted reforms may be foisted…’.14 It is still common sense that if the Parliament undertakes reform of codification, it will probably give as much attention as possible so that there are no inconsistent or unfair clauses. However, what if the public supports an elected House of Lords reform, but disagrees with a reform of empowering judges to invalidate statutes? If these unrelated provisions are presented in one document, then they will be ‘either accepted as a package, or rejected in their entirety’,15 regardless of whether the society disapproves one of them. Therefore, it remains highly essential, that many ‘foisted’ reforms might emanate.16 Such unfavorable consequences will not occur when each individual element is separately debated and enacted.17 The conclusion is that parliamentary provisions must be discussed and enforced independently.
Another important source of the constitution is Case law, which is connected to the concept of Rule of Law. According to Dicey, one of the purposes of this principle is to guarantee that general constitutional rights are results of judicial decisions.18 The importance of ordinary law is related to the obligation of the judiciary to interpret and apply the statutes, as held in the case of Pickin19, and to improve the Case law. The Circuit Court Judge, Jack Day, determines in his article that “…the common law is a body of legal principles derived from custom and usage and developed by judicial exposition on a case-by-case basis”.20 Therefore, the more cases appear in the court in the future, the more legal principles will be created or developed, correspondingly to the needs and conditions of the modern society. This is supported by the case of Jogee,21 which completely turns the legal principle of the doctrine of joint enterprise and a party is no more liable for subsequent acts of the other party in a crime. Many defendants, such as Jogee, would have faced unfair convictions, because it would have been so difficult to change the judicial principles, once being codified. In most of the cases, judge “law-making” is a necessity, because it clarifies and rounds out the parliamentary statutes and provisions. For example, S39 of the Criminal Justice Act 198822 recognizes the offence of Common assault, but does not define which acts suffice the commission of the offence. As a result of judicial intervention the actus reus elements of the offence were consequently determined.23 Many similar and dissimilar principles and rules have been being established over time so that the law is open, prospective and clear, in support of Dicean Rule of law conception.24 Codification of judicial precedents will inevitably lead to their stability, as the same rules will be applied in the appearing cases, but being hardly changed in the future, they might not provide relevant legal responses to emerging social demands and the modern generation.
If the constitution is ‘re-written’, it would be a potentially expensive and long-lasting process, as suggested by Elliot and Thomas.25 The problem with this procedure refers to the issue of what must be included in the C-constitution.26 Countries, such as Germany, codify their constitutions when a new regime is commenced, but the lawmakers in Britain will face difficulties in selecting from all ‘…existing laws, customs and conventions’.27 If we presume that Parliament has enough financial and non-financial resources to codify the constitution, the outcome may still be an ineffectively written document, which lacks very important points, clauses and regulations.
The British constitution, being composed by rules and important principles, which do not comprise one single document, allocates the power between the different institutions and establishes where the individuals’ freedom begins. It outstands with flexibility and adaptability, and it is easily adjusted, agreeably with the emerging needs of the individuals and state. The “unwritten” constitution is in support of democracy and upholds the judicial role of applying, interpreting the statutes, and developing the Case law and precedents in the modern system in response to the social demands. The reforms towards codification would be ineffective not only because of the package treatment, but also because of the long and expensive process of the transition. Undoubtedly, codification would lead to entrenchment of important parliamentary Acts, such as Human Rights Act 1998, and judicial principles, but there are many potential disadvantages of the reform, which may reflect in failure to satisfy the needs of the modern generation. Therefore, ‘…the fact that Britain lacks a capital-C Constitution is far less important than is often made out’.28
1 Mark Elliot and Robert Thomas, Public Law (3rd edn, Oxford University Press 2017) 5.
2 ibid 11-12.
3 ibid 13.
4 Henry William Wade, “The Basis of Legal Sovereignty” (1955) 13 The Cambridge Law Journal 172, 188
5 Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (first published 1885, 10th edn, Palgrave Macmillan 1959).
6 Parliament Act 1911, s2.
7 Regina (Jackson and others) v Attorney General 2005 UKHL 56, 2006 1 A.C. 262.
8 John Stevens, Six Amendments: How and Why We Should Change the Constitution (Little, Brown and Company 2014).
9 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1965 A.C. 75.
10 War Damage Act 1965, s1.
11 Thomas Hobbes, Leviathan (first published 1651, Penguin 1985) 88.
12 British Railways Board v Pickin 1974 A.C. 765.
13Nick Barber, “Against a Written Constitution” (2008) 11 Public Law 11,12
14 ibid 11,12.
18 Dicey (n 5).
19 British Railways Board v Pickin (n 10).
20 Jack Day, “Why Judges Must Make Law” (1976) 26 Case Western Reserve Law Review 563, 568
21 R. v Jogee (Ameen Hassan) 2016 UKSC 8, 2017 A.C. 387.
22 Criminal Justice Act 1988, s 39.
23 Collins v Wilcock 1984 1 W.L.R. 1172.
24 Dicey (n 5).
25 Mark Elliot and Robert Thomas (n 1) 80.
26 Vernon Bogdanor, The New British Constitution (Hart Publishing 2009).
27 ibid 217.
28 Anthony King, The British Constitution (Oxford University Press 2009) 5.