To What Extent Does the Doctrine of Parliamentary Supremacy Explain why the UK Continues to Have an Uncodified Constitution? It is well known among the legal and political communities across the world that the UK possesses quite a unique constitution. Our constitution is different to most others, with the possible exception of Israel and New Zealand, because it is not codified, or contained within one written document. The most recognisable codified constitution is that of the USA, which is contained in one old, formal looking document that is freely available for their public to see.
Having an uncodified constitution has been a somewhat contentious issue for the British over time; however the real question that must be asked is why we continue to proceed with an uncodified document and what reason(s) we have for not having codified it some time ago, in accordance with most of the rest of the world. One such potential reason is that it may infringe on the doctrine of Parliamentary supremacy and that a codified constitution would become the de facto supreme control on British laws, as opposed to Parliament, which has been sovereign since the Bill of Rights was passed in 1689. Of course, there are those that would argue that the doctrine of Parliamentary supremacy has little or no effect on our continued use of an uncodified constitution.
The first argument for our continued use of an uncodified constitution being down to the doctrine of Parliamentary supremacy could be formulated from Dicey’s analysis of the constitution, which sets out the fact that Parliament is indeed sovereign and must remain so, regardless of the constitution or monarch in place at the current time. From this, it could be taken that the constitution has not been codified and made the highest form of legal authority so that the judiciary would not be able to override and refuse to observe Parliamentary statutes on the basis of them being ‘unconstitutional’, as could be done in America. Dicey’s appropriation of the doctrine of Parliamentary supremacy as the core value of British politics and law forms the basis of any argument that our continued use of an uncodified constitution is so as not to undermine the doctrine or even to reinforce the doctrine itself. There have been a series of proposed reforms to the constitution and the desire to codify, entrench and give it a higher place in British law have been expressed time and again.
Of the three main proposals for constitutional reform, Tony Benn’s proposal in 1992 was the first to propose a complete procedural overhaul of the British political system, turning it into a Commonwealth with no monarch, replacing the House of Lords with a publically elected Senate of sorts and the instating of a president and for the constitution only to be amended through referenda, all in order to uphold and follow the new, more rigid constitution. Though the new, reformed House of Lords would not strictly be a constitutional court, this reform would clearly undermine, if not destroy the Doctrine of Parliamentary supremacy and instead, place that power into the constitution and give the Judiciary the ability to challenge any Bill that Parliament should put forward. It can be argued that is mainly, if not only because our system seeks to protect the sovereignty of Parliament; that this proposal never came into effect, because were the Doctrine of Parliamentary supremacy not so important, or even vital to our political system, there would have been no reason to turn this idea into a fully functioning system.
Another, more contemporary argument asserting that Parliamentary Supremacy is what prevents the UK from adopting a codified constitution can be taken from Robert Hazell’s publication ‘Towards a New Constitutional Settlement: An Agenda for Gordon Brown’s First 100 Days and Beyond’, which details a list of political difficulties that would arise, should Britain attempt to adopt a written constitution. One of the reasons is that it would even out the power balance between Parliament and the Judiciary and that should such a motion be voted through, “MPs who are asked to vote for a written constitution will be aware they are reducing their own power”. Another difficulty noted by Hazell is that the codification of the constitution would lead to its entrenchment and writes that “A fully entrenched constitution would become the fundamental source of legal authority… Superseding the traditional doctrine of the sovereignty of Parliament”, therefore it would be somewhat presumptuous and unrealistic to assume that Parliament would vote in such change.
Furthermore, looking once more at Dicey’s Laws of the Constitution, it is taken as a formal constitutional convention that no Parliament can bind its successors, nor can it be bound by its predecessors by means of any law passed. Therefore, there is a somewhat paradoxical problem, in that if Parliament were to pass a law that places the constitution above itself in terms of legal authority, it would be counteracting the constitutional convention on binding future Parliaments and it should be asked whether future Parliaments would be forced to follow the reforms at all, because they would no longer be restricted by the doctrine of Parliamentary sovereignty, but rather, a constitution that was initially not followed in order to give it authority. On the other side of the debate lies the argument that the doctrine of Parliamentary sovereignty has little or nothing to do with the fact that the UK continues to use an uncodified constitution.
Looking once more at the proposed constitutional reforms put forward by Tony Benn in 1992, as analysed by D. Oliver, it must be noted that the changes made to the House of Lords would require the new incarnation to be elected through the ‘Proportional Representation’ system, as opposed to the ‘First Past the Post’ system which was the status quo for elections at the time. Tony Benn’s proposal was made some years before the devolution of Wales, Northern Ireland and Scotland, which incorporated a system of proportional representation. It could be surmised that if his proposal were put forward while the country was under a Liberal Democrat government that supported proportional representation, the outcome would have been vastly different. It can also be noted that the Institute for Public Policy Research (IPPR) proposal would have kept Parliament sovereign, if not strengthened it further and yet, the constitutional reforms in question were not fully carried out.
There are even more reasons why the constitution has not been codified, irrespective of the doctrine of parliamentary supremacy. Looking once more at Hazell’s publication on Gordon Brown’s potential future position on constitutional reforms, it should be noted that the political and procedural difficulties that have nothing in regard to parliamentary sovereignty far outnumber those that do. The lack of public pressure, opinion or priority placed on the topic bring to mind the saying “If it isn’t broken, don’t fix it”, but certainly the most logistically and procedurally problematic factor is the need for a consensus on just what rules and conventions would be considered ‘constitutional’ enough to become law and would form what would then become the highest form of legal authority in the country as well as reaching a consensus on the length and scope of the document. Another reason for our continued use of an uncodified constitution could be explained historically.
In Bogdanor’s ‘The British Constitution’, it is noted that “the constitution has thus remained uncodified precisely because there has never appeared to be a genuine ‘constitutional moment’ and … there is a sense in which England… never began”. In other words, it is possible to trace France’s codified constitution, for example, to the French Revolution of 1789 and the events that followed afterwards. The same can be said for the United States of America and the War of Independence in 1775.
After the death of Oliver Cromwell, the British political system was restored to a monarchy, with the main exception to the systems of the past being further constitutional control over the monarchy. In addition to this historical point, it can also be argued that the reason the UK has not codified its constitution is due to cultural individuality Britain has while it retains its current constitution and the fact that the abolition of a monarchy as according to Benn’s reforms or huge changes in the House of Lords would simply be too expansive a cultural step to undertake at once.
In conclusion, it seems that the doctrine of Parliamentary supremacy goes a considerable distance in explaining why the UK continues to use an uncodified constitution; however, it is not solely the most prominent reason. It can be seen that the doctrine of Parliamentary supremacy or sovereignty is part of a plethora of reasons why our constitution retains its uncodified state, however, that is not to say that there will never be an uncodified constitution, irrespective of Parliamentary supremacy and the logistical and procedural hurdles our system would currently have to undertake to make such changes in one fell swoop; the Human Rights Act 1998, Constitutional Reform Act 2005 and the various other changes made to the British constitution have presented great leaps forward.
Since the British constitution was formulated in a piecemeal manner with components being added, interchanged and amended over time, it is difficult to say what form the constitution will finally take, however, changes will be made. It is quite possible that all of the difficulties our political system faces with constitutional reform now may in fact no longer be the case in the future and the same may even be said for the doctrine of Parliamentary supremacy.
* Bogdanor, V., ‘The New British Constitution’ (2009 Hart Publishing, Oxford). Chapter 1 was the basic source given to me to start pointing me in the right direction. It was particularly chapter 1 that was useful in highlighting the history of the constitution and turning that into an argument for why the constitution remains uncodified. It also provided some background knowledge that helped me to understand the topic better, the knowledge without which I wouldn’t know where to start gathering information.
* Dicey, A.V., (1885), ‘Introduction to the Study of the Law of the Constitution’, All Souls College Oxford, Oxford, found at http://www.constitution.org/cmt/avd/law_con.htm , Accessed 10/12/2010. This book was a necessity in understanding the main functions of the British constitution and historical views on it, especially since Dicey’s rules are such an authoritative source that they are used in nearly every entry on the British constitution that I have come across. Through analysing the fundamental principles of the constitution and how they relate to parliamentary sovereignty, I could build arguments showing that the two are still inexorably linked, therefore the doctrine being the primary reason why we still use an ‘unwritten’ constitution.
* Webley, L. & Samuels, H., ‘Public Law: Text, Cases, and Materials’ (2009 Oxford University Press, Oxford). In specific, the extract from Oliver, D., ‘Written Constitutions: Principles and Problems’ (1992) which helped my understanding of previous proposals to reform the constitution. The three proposals being the MacDonald Constitution, Tony Benn’s Constitution and the IPPR Constitution, respectively. In looking at these proposals, I could see where potential difficulties arose in bringing the changes forward and had to relate them to the question. In looking at the different proposals, I had to ask myself why they weren’t passed and what possible arguments pertaining to the doctrine of parliamentary sovereignty could be formulated. Articles:
* Hazell, R. with contributions from Glover, M., Paun, A., and Russell, M., ‘Towards a New Constitutional Settlement: An Agenda for Gordon Brown’s
First 100 Days and Beyond’ (London: The Constitution Unit, UCL, 2007). This was a particularly useful document for finding arguments for both sides. While there was possibly an overabundance of arguments against the premise that parliamentary sovereignty is the cause for current constitution remaining uncodified, I felt that the arguments for the premise were fairly heavily weighted and consistent enough to form an argument in their own right.
[ 1 ]. See Dicey, A.V., (1885), ‘Introduction to the Study of the Law of the Constitution’, All Souls College Oxford, Oxford, found at http://www.constitution.org/cmt/avd/law_con.htm , Accessed 10/12/2010. The passage underneath the heading ‘The Sovereignty of Parliament’ in the introduction specifically highlights that parliamentary sovereignty is the most important part of our politics and law. If one was to take that into account as a constant rule, then the constitution has remained as it is so as not to upset this principle, therefore forming the basis of the argument that the Doctrine of Parliamentary Supremacy is the reason for our continued use of an uncodified constitution. [ 2 ]. Oliver, D., ‘Written Constitutions: Principles and Problems’ (1992), Cited in Webley, L. & Samuels, H., ‘Public Law: Text, Cases, and Materials’ (2009) at 72-73, Oxford University Press, Oxford – This passage highlights the most radical and important changes to the British political system that Benn would have introduced, all of which would have a profoundly damaging effect on Parliament’s sovereignty. [ 3 ]. Hazell, R. with contributions from Glover, M., Paun, A., and Russell, M., ‘Towards a New Constitutional Settlement: An Agenda for Gordon Brown’s First 100 Days and Beyond’ (London: The Constitution Unit, UCL, 2007) at 13 – While not all of this list refers to Parliamentary Sovereignty as being the reason for the difficulty in passing constitutional reform, it is definitely possible to argue that the weakening of power in Parliament and the appropriation of the constitution as the primary source of legal power over Parliament are the most noteworthy political blocks to constitutional codification, not least considering the fact that it would have to be voted in by Parliament, thus limiting itself. [ 4 ]. Id.
[ 5 ]. Ibid at 14.
[ 6 ]. See Dicey, A.V., (1885), ‘Introduction to the Study of the Law of the Constitution’, All Souls College Oxford, Oxford, found at http://www.constitution.org/cmt/avd/law_con.htm , Accessed 10/12/2010 – Once again, Dicey’s writings can help these arguments by strengthening the position of Parliament as legal sovereign in Britain. However, if one was to take Dicey’s writings as a set of unbreakable rules or main unalterable pillars for their argument, strange paradoxical problems are encountered when theoretically imagining a Parliament that would actually vote through constitutional entrenchment and codification. [ 7 ]. Oliver, D., ‘Written Constitutions: Principles and Problems’ (1992), Cited in Webley, L. & Samuels, H., ‘Public Law: Text, Cases, and Materials’ (2009 Oxford University Press, Oxford) at 72,– This time around, I have chosen to focus on the new formation of the House of Lords, as opposed to the impact the entire proposal would have on Parliamentary sovereignty. I did so because I believe that it is possible to extract two separate stances from this text, rather than just being able to construct one linear argument. [ 8 ]. Ibid at 73
[ 9 ]. Hazell, R. with contributions from Glover, M., Paun, A., and Russell, M., ‘Towards a New Constitutional Settlement: An Agenda for Gordon Brown’s First 100 Days and Beyond’ (London: The Constitution Unit, UCL, 2007) at 13-14 – It can be seen that the arguments against the premise that the doctrine of Parliamentary sovereignty being the main reason for a lack of a codified constitution do far outweigh those that do, in number, however, the strength of those arguments in comparison is debatable. [ 10 ]. Bogdanor, V., ‘The New British Constitution’, ‘Chapter One: A Peculiar Constitution’ (2009 Hart Publishing, Oxford) [ 11 ]. Ibid at 11. Bogdanor goes on to explain that it is hard to assess when or if at all England had become a modern state, because it is difficult to find breaks in its historical continuity.