Do we need a written British Constitution?

In preparation for our free course on Coursera, we’ve developed a series of videos to get you thinking about the legal system in England and Wales.

In our second video, Professor Bill Bowrigg discusses whether the UK should move from an unwritten to written constitution.

Next week we look into the differences between the US and English and Welsh legal system and ask ‘Can National Identities exist in the EU’s legal system?’

One comment

  1. A written constitution spells out the duties of the government and the governed, and sets out the power and limits imposed on that power of the executive, the independent judiciary, and parliament. The most obvious drawback of an unwritten constitution is that members of the general public are in all likelihood in the dark as to most if not all of its contents. The public places a lot of trust in the government of the day not to go off the tangent. Strictly speaking, the United Kingdom does not have a constitution at all, unwritten or otherwise. The government of the United Kingdom has been operating under a set of constitutional principles and conventions. The foundational principles are the rule of law and separate of power. Under the constitutional arrangement of the United Kingdom, the power of Parliament in Westminster is plenary, the notion of parliamentary supremacy. This is in sharp contrast to the constitutional structure or arrangement of at least some members of the British Commonwealth. For example, section 51 of the Commonwealth of Australia Act 1900 marks out the boundary of legislative power of the Australian Federal Parliament. The presence of s 51 of the CoA Act means that legislations passed by the Australian Federal Parliament is subject to judicial review for constitutionality, which acts as a check on the legislative power of the Australian Federal Parliament. This check is to ensure States power is not encroached on. The Commonwealth of Australia is a federation of six states and there is always an issue of the boundary of legislative power which rests with the states and the federal government. The government of Her Majesty’s United Kingdom of Great Britain and Northern Ireland is not a federal government, even after recent devolutions, despite of the fact that the Great Britain is comprised of three countries: England, Wales, and Scotland. Hence there is no need to place constraints on the legislative power of the United Kingdom parliament in Westminster. Another way of constraining the legislative power of parliament to guard against any excesses is to have a so called Bill of Rights in a written constitution, such as amendments 1 to 10 of the United States of America. Constitutional provisions can be changed even if it is very difficult. For example, section 128 of the CoA Act 1900. But just because they are difficult to change does not mean that they cannot be changed. Just as rights can be included as constitutional provisions, rights can also be excluded through constitutional provisions. An example is, again, the original CoA Act 1901. Section 127 provided ‘in reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.’. That section was removed in 1967. But my main point here is that a written constitution is not a iron clad guarantee of rights. The people can give them, but the people can also take them away. Society can achieve a lot using law. But law is not a panacea for all social ills. Everything has a limit, law is no exception. In the end, law is a reflection of social culture. Tony Blair’s government managed to lie its way to the Iraq War because there was tacit support or ambivalence from the public. The only and best safeguard to protect the public from any parliamentary excess is through education and a strong social culture. Judging from the fact that the poll tax revolt brought down the best prime minister in British History, the late Baroness Margaret Thatcher, the United Kingdom does not need a written constitution.

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