Parliamentary vs constitutional supremacy: The UK debate

The UK constitution has undoubtedly been under pressure in recent years. The latest attack came from Prime Minister Andy Burnham, who, under the pretext of a programme of decentralisation and devolution, is strongly pushing for a written constitution.

Many are now posing the question: “Why should Britain not have such a constitution?” She is, after all, one of just three democracies without one, the others being New Zealand and Israel.

There are two reasons why Britain has lacked a constitution. The first is that, historically, Britain never had a constitutional moment; the second is the doctrine of parliamentary sovereignty.

Furthermore, considering Britain’s extensive history, it can be confidently stated that its constitutional law is neither flawed nor in a state of disorder. It is working just as well as, or perhaps even better than, many written constitutions around the world.

The absence of a single written document for the UK’s system of government highlights the effectiveness of the Westminster parliamentary democracy and the stability it has provided the nation. This contrasts with numerous other nations, where written constitutions were established in the aftermath of revolutions or declarations of independence.

Any examination of written constitutions globally reveals that they typically emerge only following a successful invasion or a significant failure within the political system, resulting in a breakdown of the existing methods of governance and political operation. The current malaise in the UK does not resemble any of these catastrophic moments and does not necessitate a complete overhaul or a radical new approach to governance and political processes.

The unwritten nature of the constitution is something distinctly British, reminding us of a great history, and it is a source of national pride. Contrary to claims that it is out of date, it is evolutionary and flexible in nature, more easily enabling practical problems to be resolved as they arise and individual reforms to be made than would be the case under an entrenched constitutional document.

Strange as it may sound, a written constitution would most likely enshrine the doctrine of separation of powers, which in its strict form is alien to the essence of the UK constitution. The essence of the British constitution has not been a separation of powers but a mixing and sharing of powers that has served the country well in terms of ministerial and administrative responsibility, and accountability to parliament and the electorate. Trying to impose separation of powers onto the British system of government would be an affront to the British constitutional tradition.

In England during the interregnum period, Oliver Cromwell implemented the Instrument of Government in 1653, which has been identified as the world’s first written constitution. Due to its inability to be amended and problems of concentration in relation to executive power, the document was replaced by what has largely been considered England’s second written constitution— the Humble Petition and Advice. This failed soon after Cromwell’s death.

Consequently, when the Glorious Revolution occurred in 1688, it was not surprising that parliament opted for a statute, the Bill of Rights 1689, which guaranteed its rights against the monarch. This choice reflected a reluctance to experiment with another fundamental document that could be vulnerable to monarchic abuse or might restrict constitutional change.

The UK’s constituent parts have produced other constitutional documents that relate to high-profile political demands and state architecture, such as the 1215 Magna Carta, the 1320 Declaration of Arbroath, the Act of Settlement 1701 and the Acts of Union 1707, but none of these is akin to a fundamental written constitution that sits above all other types of law.

Coming to modern times, the Brexit process demonstrated both the flexibility and rigidity of the UK’s unwritten constitution. The coronavirus period also demonstrated that accountability in the UK constitution is alive and well and that even during times of crisis it was quite far from seeing what could be called ‘unchecked’ power. It allowed for lockdowns to be challenged, for bad practice to be exposed and for a thorough review of the response to begin as well. Legal challenges to the lockdown restrictions were upheld in both the High Court and the Court of Appeal. Governmental malpractice was revealed through various means.

Various government actions during the pandemic were exposed as unlawful; government ministers were fined and even resigned for breaking the rules, and the government had to answer difficult questions daily in its coronavirus briefings and during parliamentary sessions.

In the absence of a national crisis or any compelling catalyst that would render a written constitution necessary, it is futile to assume that the primary British political parties would reach a consensus on the specific contents of such a constitution. This holds even if all parties were to agree on the principle and desirability of codifying the constitution. The parties are inherently competitive, always seeking media attention, trying to outdo or embarrass each other. Additionally, significant ideological differences exist that would hinder the completion of the work, especially if any major changes were suggested simultaneously.

There is consequently little value in further deliberation on this issue. The UK constitution relies on the House of Commons for honesty and the House of Lords for wisdom.

The UK’s parliamentary supremacy has survived for over 400 years and continues to outshine any other proposed constitutional model.