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Constitutions are the fundamental framework of a nation’s political system, outlining the relationship between a country’s government and its citizens. A constitution may be written, as in the case of the United States constitution, or unwritten, as in the case of the United Kingdom’s constitution. Regardless of its form, a constitution is an essential element of any democratic society, providing a framework for stable governance and the protection of citizens’ individual rights.
A constitution is a framework of legislation and principles that govern a country or state. It outlines the rights, rules and responsibilities of the government and its citizens, establishes the powers of various branches of government and the mechanisms through which laws are created and enforced.
A written constitution consists of a comprehensive document that serves as the supreme law of the land, establishing the rights and responsibilities of the government. An unwritten constitution serves the same purpose, but is based on a collection of laws, customs and precedents. A written constitution is codified in a single document whereas an unwritten constitution is based on traditions and practices that have evolved over time.
Unwritten constitutions are often found in countries with strong legal traditions and a long history, such as New Zealand, Israel and the United Kingdom.
The UK Constitution consists of:
The rule of law, separation of powers, the royal prerogative (power of the Crown which is exercised by the prime minister) and parliamentary sovereignty are the basic tenets of the UK Constitution.
One example of a written constitution is the US constitution, which was ratified in 1788 and contains 27 amendments. Some other examples of countries with written constitutions include Germany, France, India and Canada.
The UK along with New Zealand and Israel are the only three countries in the world to have an uncodified or ‘unwritten’ constitution. So what are the advantages of an ‘unwritten’ constitution?
One of the main advantages of an unwritten constitution is that because it is not codified in a single document, it is more dynamic and flexible than a written one. Rather than going through the often difficult and lengthy process of constitutional amendment, it is often easier to change the interpretation of a legal principle or rule when it is not ‘set in stone’ within a legal document. For example, the UK has a Fixed-term Parliaments Act 2011 which ensures a general election every five years subject to two exceptions.
One of the benefits of an unwritten constitution is that it is able to adapt to the changing needs and values of society. As values, customs and cultural practices are constantly evolving, the constitution can adapt to incorporate these changes.
The UK constitution has even been referred to as a “living constitution” because it evolves and adapts to reflect changing social attitudes such as the Marriage (Same-Sex Couples) Act 2013.
There may be more room for interpretation with an unwritten constitution, allowing judges and lawmakers to be more creative in how they make legal decisions, based upon a more nuanced interpretation of the law.
As an unwritten constitution has the capacity to incorporate a country’s customs and traditions over time, this can help to consolidate and further strengthen a country’s cultural identity.
Unwritten constitutions can lead to uncertainty with regards to whether something is or is not constitutional within the legal system. As the constitution is not codified in a single document, this may be more difficult to determine, leading to disputes and disagreements.
Another disadvantage of unwritten constitutions which has been commonly cited, is the lack of clarity leading to greater difficulty in enforcing the law. Without a clear and established set of rules, this can make it more difficult to ascertain what is legal and what is not.
The absence of a written constitution means that the UK does not have a single, written document that has a higher legal status over other laws and rules. Unwritten constitutions may therefore be considered less formal which consequently, may undermine their legitimacy.
In the absence of a clear set of rules, a written constitution may be more vulnerable to an abuse of power. The powers of the executive, legislative and judicial branches are not clearly defined either, which can lead to ambiguity, uncertainty and possible conflict between the three pillars of government.
The flexible nature of uncodified constitutions means that they could be subject to multiple interpretations. For example, the opposing interpretations taken by the executive and judiciary regarding the prerogative power to prorogue i.e. suspend Parliament.
The 1st October 2019 signifies the ten-year anniversary of the UK Supreme Court as well as the beginning of the legal year in England and Wales. The UK Supreme Court is the final court of appeal and recently ruled on the lawfulness of the advice given to the Queen by Prime Minister Boris Johnson to prorogue Parliament for a period of five weeks.
The UK Supreme Court unanimously held that Parliament had not been prorogued and that the Prime Minister’s advice to the Queen based on the recommendation of Nikki da Costa, Director of Legislative Affairs at No.10 was “unlawful, void and of no effect”.
President of the UK Supreme Court, Lady Hale, explained that all 11 justices sat on the panel during the three-day hearing because the issue of whether Parliament had lawfully been prorogued was an issue of constitutional importance.
If Gina Miller’s appeal had not been allowed, Parliament would have been prorogued until 14 October 2019 which would have been a little over two weeks from the scheduled date for the UK to formally withdraw from the EU.
EU law forms part of the UK constitution by virtue of the European Communities Act 1972, so the manner of the UK’s departure should be subject to Parliamentary scrutiny as the House of Commons is a democratically elected body.
Against the backdrop of Brexit, it is unclear whether in these particular circumstances that a codified constitution would have made a difference to i) the advice given by the Privy Council to the Queen to prorogue Parliament from 9 September to 14 October; and/or ii) the arguments put forward by Prime Minister’s counsel that the Prime Minister’s advice to the Queen was not justifiable (i.e. review-able by the courts) and that he is only accountable to Parliament.
This begs the question of how a Prime Minister can be held to account when Parliament is prorogued. During prorogation, MPs cannot debate Government policy or ask written or oral questions of Ministers.
Due to the UK being a representative democracy, the executive is un-elected, and so should not be permitted to misuse the prerogative power of prorogation to circumvent political accountability. This is one of the central constitutional functions of Parliament.
An unwritten constitution has both advantages and disadvantages. White it affords greater flexibility and can evolve over time to adapt to the changing values of society, it can also lead to greater uncertainty and make the legal system more vulnerable to an abuse of authority. Whether a country has a codified or uncodified constitution will ultimately depend on a variety of factors, including its history, culture and political context. Regardless of its form, a constitution should serve the same purpose, to outline the rules and responsibilities of a country’s government and its citizens.
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