Budge et al (1998, p.177) defines a constitution as Denshrining in law the rights and duties of citizens and the functions and powers of the state and its major branches. In most countries throughout the world this constitution takes the form of an actual written document typically written on vellum with an official seal.
An example is the well-known US Bill of Rights created in 1788 following independence from the British crown. However, Britain is one of the few countries in the world where the constitution takes an unwritten form. Instead, it is comprised of Acts of Parliament, treaties, common law and European law, amongst others. This would seem to many to be somewhat disorganised and haphazard, but up until the mid twentieth century, Britain’s constitution was seen as a unique feature of the strong, yet flexible government which has taken Britain through two world wars and several periods of internal strife (Budge et al 1998, p.177).
However, in the past few decades, issues such as Northern Ireland and devolution to Scotland and Wales have led to calls for an extensive review of Britain’s constitution. Many are calling for it to be reviewed with an eye to implementing a clearer, written example along the lines of America’s Bill of Rights. Therefore, this essay will take the form of a critical evaluation of the arguments for and against the UK having a fully codified Bill of Rights.
The first section will be dedicated to an assessment of the pro-reformists’ arguments with the second section assessing the anti-reformists’ points of view. Those that argue that the British constitution is in need of change have picked out three general features that highlight its alleged inadequacy. These are that it is indeterminate, indistinct and unentrenched (Finer et al 1995, p.40). The accusation that the constitution is indeterminate stems from the fact that there are 170 combined Acts of Parliament according to HM Stationary Office.
Any number of these Acts may be interpreted by the individual as being part of Britain’s constitution. There is therefore no authoritative selection of statutes, conventions and common laws which would comprise the Iconstitution’. The second problem with Britain’s constitution according to Finer et al is that of an indistinct structure. Within UK law there is no device to signal the supremacy of constitutional law over lordinary law, a situation repeated in the case of a convention being broken. It is said that what is needed is an independent constitutional court resembling the US Supreme Court which would allow cases involving constitutional legislation to be heard with appropriate consideration.
The third problem, that of the constitution being unentrenched, is in essence the lack of any formal requirements for enacting or amending constitutional law. This means constitutional legislation in the UK can be altered or revoked in the same way as any other statute. A fair point considering the possibility, however small, of a radical government coming to power with a significant majority. The three points previously mentioned are general problems many have with the British constitution as it stands. In the following section two specific arguments for a Bill of Rights’ will be detailed and assessed. Ever since the Scottish Parliament was established, its constitutional relationship with Westminster has come under increasing scrutiny.
The pro-reformists argue that the relationship is not nearly clear enough,. Jowell and Oliver (1989) illustrate this using a hypothetical future situation. If a large SNP majority was to be elected to power intent on provoking rifts with Westminster, any legislation passed by them that was detrimental to non-Scottish residents of the UK would be perfectly legal in the eyes of the courts. This is due to a lack of constitutional criteria regulating this type of situation. Westminster would be rendered impotent action against the Scottish Parliament would be seen as a direct insult to the Scottish people, whereas inaction may be detrimental to the integrity of the United Kingdom as a whole. This is obviously a worrying situation, the pro-reformists arguing that it could be easily avoided by a clarification of the Edinburgh Westminster relationship, which would seem to be a fair point.
Ever since Britain’s joining of the European Union (EU) in 1973, bodies such as the European Court of Justice (ECJ), the European Commission and the Council of Ministers have had a great influence over the way Britain is run, as well as over the evolution of the constitution.. Parliamentary sovereignty, a cornerstone of the current constitution, has been severely undermined. Budge et al (1998, p.180) noted four main ways the EU has had an influence. Firstly, the supremacy of the ECJ in many spheres of law has taken its toll due its ability to overrule many of the decisions taken by the British courts. Secondly, many parliamentary statutes have been declared contrary to EU law by the ECJ, effectively rendering them illegal.
Next, parliament’s ability to make legislation is restricted to those areas outside European law. Considering that the European law-making bodies are under only a small amount of British influence, this would seem to indicate parliament has no say as regards legislation that affects the lives of all Britons. Lastly is the fact that the passing of the European Communities Act has effectively bound future governments into accepting all of the above points. Overall, this is a major argument for pro-reformists who say clarification of the constitutional position would allow us to accept the obvious fact that statement forms the cornerstone of the anti-reformists’ argument. It alludes to the maxim, if it ain’t broke don’t fix it. This may be a valid point in that Britain has been relatively stable in a European context for thousands of years.
However, recent upheavals regarding the make-up of the UK and the increasing globalisation of the world indicates Britain’s situation in a European and world context is changing. The Dain’t broke’ argument does not allow for this. Many times in the past nations have deluded themselves into a false sense of security to their cost. An example would be the inter-war years of 1919-1938. Another anti-reformist argument regards the current social situation in the UK.
Many would say the need for improved healthcare, housing and welfare benefits needs all the attention rather than something that would have little obvious influence on a person’s day to day life. This is a fair point in that there are issues that need to be addressed other than constitutional reform. However, there will always be problems in any country that are attention grabbing, who’s to say the constitutional relationship with Europe and its effect on jobs will not be the next big thing’? It seems that it would be reckless to ignore the issue until it becomes big news. The last argument to be brought up in this essay is that of the constitution’s flexibility.
For example, the US Bill of Rights implicitly states the right of the American citizen to bear arms. No matter what modern events take place e.g. the Columbine school massacre, the Supreme Court cannot allow large-scale gun control measures to take place due to it being against the word of a document written over two hundred years ago. Anti-reformists argue that this indicates that a fully codified, written constitution would be unable to keep up with the times, ultimately rendering it obsolete. However, this is not entirely accurate.
According to Finer et al (1995, p.113) Article V of the United States constitution allows an amendment to the document if two-thirds of the Congress votes accordingly. This provision allows the constitution to change as and when required, something that has happened twenty seven times in the history of the United States. It would seem that it works perfectly well for the US, pro-reformists would argue the same for Britain. In the course of this essay some of the arguments for and against the establishment of a fully codified, written British Bill of Rights have been detailed and assessed.
The point has been made that the anti-reformists are reluctant to alter something that has worked for centuries. That the constitution has been effective up until now is obvious and not a point for argument. However, the situation in the UK at the moment is one of large-scale change. We have never been this close to Europe and internal shift within the country is at its greatest since 1707.
It would seem stability is something Britain needs going in to the third millennium and the US bill of Rights granted America stability for the past two hundred years. A concise, clear statement of our rights, responsibilities and relationships would appear to be the answer foe a modern Britain in a modern world.
