Donnerstag, 6. März 2014

Britain's uncodified constitution

How can Britain’s constitution be uncodified and what are the advantages? During my exchange year, I’ve  learnt about the British constitution and how it is “unwritten”. In Germany, we have the GG (=Grundgesetz) so I was surprised to read about it.

The UK constitution is made of many sources, some much bigger, older or more important than others. Some pieces of the constitution are largely irrelevant, and have been replaced since by newer legislation. An example of this is the Magna Carta – part of the English ( and later British) constitution since 1225. It essentially decentralised power from the monarch to the barons and subjects of the kingdom. Now, however, most of these clauses have been amended and replaced because of their archaic nature. Clauses like the rights of people to question the monarch without unjust reprisal are still legitimate though.

Other sources can be outside of the legislature. Convention and common law are also key to many state functions. The Concept of collective responsibility within government. This is the notion that ministers (particularly in cabinet) must all be ‘together’ in ultimate government decisions, otherwise resign. There is no official legislation, nor even any legal obligation , for this to be the case, but it simply always has been and would be risky to avoid comforting to.

So Britain’s uncodified constitution consists of thousands of documents from varying historical periods. Some argue that an uncodified constitution allows for government to keep up to date with times. It also establishes a parliamentary sovereignty over the country, which can be seen as good for allowing government to act strongly when necessary and when given a mandate, for its policies. Others argue that a codified constitution would firstly be more coherent and easier to legislate with. It is also concerning to some that parliament has so much power over the constitution, and it should be limited by a constitution with entrenched provisions. ( Entrenched provisions are those that require a formal procedure with particular requirements above that of the ordinary legislation process.)  

Many codified constitutions are faced with flaws that after decades or centuries have come to be largely outdated and troublesome. The right to bear arms in America war, for example. Significant after the war of 1812 (when fear of imperial attacks on public land was foreseen), thus it had been written into the constitution beforehand. Today, with a sophisticated military police and national guard, American citizens do not need to protect themselves from invaders, and in big cities it has proven to be simply dangerous to allow freedom of arms.

Unfortunately, amending this clause would be too difficult because most people are afraid of the entrenched process.

The parliamentary sovereignty of Britain, established by the freedom to pass any constitutional reform in a Simple Act, means that British parliament can quickly keep itself up to date with what is correct at the time.

Many of Labour’s reforms (post 1997) have modernised Britain to an extent much less possible with a codified entrenchment system. This has allowed us to remove hereditary peers, allow Freedom of Information from public bodies and separate the Judiciary from the legislature and executive.

However, criticism have also been made about parliament being too powerful and too able to fiddle with the constitution. In Margaret Thatcher’s terms in office she was known for centralizing government away from local governance. She also increased the power of her departments over the civil Service and using quangos to overrule even her ministers’ power. She could do this simply because of her strong Conservative majority and a lock of reform in the fairly right-wined House of Lords.

The difficulty of many people to understand and be aware of the different sources of the constitution is also a problem for most politicians. It has been argued therefore that for citizens to be so  restrained from their own constitution is very undemocratic.

Overall, I believe that Britain’s uncodified constitution gives the ability to evolved with time whilst also keeping with traditional values that matter even now. To make changing the constitution more difficult would only add danger to parliament’s ability to act when necessary.

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