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Dec 03

In Defence of an Uncodified Constitution

Nathan Wilson an undergraduate politics student at the University of Strathclyde. He is particularly interested in areas concerning contemporary British governance and passionately believes that Scotland should remain a part of the United Kingdom.

One of the main reasons for New Labour’s landslide election victory in 1997 was their promise to implement a wide range of constitutional reforms. Labour were not slow in fulfilling this promise as no more than 20 constitutional reform bills were pushed through Parliament during their first three Parliamentary sessions. Some of their key reforms were facilitating devolution to Scotland, Wales and Northern Ireland and removing all but 92 hereditary peers from the House of Lords.

One of the main reasons for these irreversible and far reaching reforms was growing public dismay at Britain’s constitutional arrangements, due in part to what some commentators called the ‘illiberal’ actions of the Thatcher government, who were able to alter key functions of key actors in our political system such as local government and the civil service. Margaret Thatcher also began dismantling Britain’s industry which left a lot of people unemployed and some even went as far as to argue that she and her government undermined civil liberties which, whether you loved her or loathed her, seems a bit too far and disrespectful to me. Her Conservative governments were able to do what they did because Britain does not have a written constitution which many people believe has to change.

One of the main purposes of a constitution is to guarantee the individual’s civil liberties. Indeed many written constitutions include positive guarantees of fundamental freedoms e.g. in the USA they have the bill of rights. The nature of Britain’s constitution means that in Britain we don’t really have this but it appeared as though New Labour had rectified this problem when they incorporated the Human Rights act in 1998.

However many argued that after the 11th September terrorist attacks Labour decided to compromise civil liberties, as within days Parliament was debating measures such as seizing the assets of suspected terrorists and monitoring their emails, measures which – according to some -  did appear to be essential to protecting national security.

After reading this so far you may be thinking that Britain’s constitution is horrendous. But before jumping to any conclusions it is important to consider why Britain has an unwritten constitution and why despite it’s perceived limitations it may actually work better than written constitutions do.

First of all, while we call it an unwritten constitution this is not really true, as most of Britain’s constitution can be found in written form in the shape of uncodified documents, they just haven’t been pooled together and made it into one supreme document called ‘The British Constitution’. Moreover the basic principles of a sovereign Parliament and limited constitutional monarchy were established as far back as 1688 and the roots of the constitution can even be traced back to the Magna Carta in 1215.

Crucially most written constitutions are the products of revolutions, which Britain has never experienced. Yes England have had a revolution but since they joined up with Scotland and Ireland there has not been one.

The fact that our constitution is unwritten means that there is no system of formal checks and balances on the government but in reality there a number of powerful forces which means that a government is restricted in what they wish to do. Indeed there have always been political checks on the government. They have to restrain themselves from introducing extremely radical measures, bargain with powerful pressure groups, and make sure they retain the support of their own backbenchers.

They also have a duty to respect the right of opposition parties in the Commons, and crucially and most importantly they need to make an effort to look after the interests of the public because if they don’t they will be voted out at the next general election.

For example the Conservative Party got rid of their leader Margaret Thatcher in 1990, even though she had been the Prime Minister for 11 years and won three consecutive general elections, because they felt that they would lose the next election if she was in charge. Additionally, saying that there are no formal checks and balances on the government is not strictly true anymore because of Britain’s EU membership as British law must now conform to EU regulations.

 Furthermore, many states which have had written liberal democratic constitutions have collapsed and many former communist states had profoundly democratic constitutions. While the main objective of a constitution is to lay down a regulatory framework in which government and political affairs must be conducted, no written constitution has been wholly successful in this respect. Therefore form this perspective Britain is better off sticking with its current arrangements.

To conclude then, in Britain we have an evolving constitution which is constantly changing and is the product of longevity and experience. Therefore the fact that Britain’s constitution has been in existence for so long and the fact that a written constitution may not be worth the paper it is written on, it appears as though it would be unwise to try and tamper with Britain’s unique constitutional arrangements.

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