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Thursday, September 6, 2012
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Should UK adopt a written constitution considering advantages and disadvantages?

The word “constitution” is also used to refer to a document that contains, sets out the framework and the principal functions of the organs of government within the state, and declares the principles by which those organs must operate. This document, the constitution, is usually enacted by the legislature or adopted by some other constituent body, for example a Constituent Assembly.

In most states the there is a document the constitution a higher form of law in the sense that other laws must conform to it. The constitution imposes limits on what may be done by ordinary legislation and the courts may declare certain legislative acts void.

But where UK is concerned we could say that it has no constitution because there is no single document to which you could refer to and say that the authority of the main organs of the government, such as the Crown, the Cabinet, Parliament and the courts of law is derived from that particular document. But the fact is that there is a functional government, there are working organs of the state so that it would be correct to conclude that there is a constitution however it is not written constitution and to serve as the foundation of the legal system the vacuum is filled by the legal doctrine of the legislative Supremacy of Parliament, that is the Parliament can make or repeal any law it so desire without any formal restrain.

A major disadvantage therefore of the UK’s unwritten constitution is that in the absence of any higher form of law it is virtually impossible to ensure that the rights of minorities and individual citizens are protected against legislative infringement by Parliament. The government tends to have centralised power. Moreover, the absence of a written constitution means that there is no special procedure prescribed for legislation and constitutional importance. For example, before the Republic of Ireland could join the EEC, a constitutional amendment to the Irish constitution had to be approved by referendum of the people. In the United Kingdom, however, while the European Communities Act 1972 was debated at length in Parliament, the Act was passed by essentially the same procedure as would apply to any legislation of purely domestic concern. With no written constitution in practice the British constitution depends far less on legal rules and safeguards and relies much more upon political and democratic principles.

The problems that arise as result of unwritten constitution it is argued could be overcome by written document and its advantages would be that it would be written down providing easy access thus enabling the determination of the individual’s rights and those rights could be entrenched that the Government of the day would not be able to interfere with and could be revised as and when the circumstances and the needs of the 21st century. However, it must be kept in mind where there are advantages of a written constitution the converse is also true, for example difficulties to bring about changes.

But there remain one question that needs an answer. Can the politician be trusted to observe restraints on their power? Would a written constitution guarantee smooth working of a system of government? It is doubtful because a written document on its own has no greater force than that which persons in authority are willing to attribute to it. Is it not possible that a party with a majority or all the politicians ganging up vote to have the constitution take away individuals rights?

Ultimately the advantages and disadvantages need to be balanced against each other for a resolution and to answer the question should UK adopt a written constitution.

The present unwritten constitution founded as it is partly on Acts of Parliament and judicial decisions, partly upon political practice, and partly upon detailed procedures established by the various organs of government for carrying their own tasks, provides a complex and comprehensive system of government which has served the UK well. In particular, as all law in the UK, including laws relating to the constitution, may be enacted, repealed or amended by the Queen in Parliament using the same legislative procedure offer flexibility and adaptability to meet any situation that may arise. Indeed this facility for gradual evolution has been one of the major contributions to the political and social stability of the United Kingdom.

But the adoption of a written constitution need not necessarily destroy this flexibility altogether. A written constitution cannot contain all the detailed rules upon which government depends and accordingly a written constitution usually evolves a wide variety of customary rules and practices which meet the changing conditions. These customary rules and practices will usually be more easily changed than the constitution itself and their constant evolution will reduce the need for formal amendment of the written constitution. But is that not already happening in the case of UK where the constitution is ever evolving to meet the needs and demands of the citizens and, now, with the UK being part of European Union there are some limitation on Parliament's Sovereignty and where the individuals rights were being curtailed there is a remedy remains.

Therefore it may well be the case that a written constitution for the United Kingdom would preserve the best of the existing constitutional practices and would remove the major defects. But, in spite of the defects, so long as the present constitutional system works so well, why change? If it ain't broke, why fix it!!!