the UK constituion Watch

Anonanono
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how effective is the UK constitution really? It is very uncodified as opposed to the american one which is all in one single core document. Then again the US constitution is described as very rigid whereas the UK has a flexible constitution allowing for adaptation and change. However, it's so flexible that the judiciary can interpret it anyway they want when the intended meaning may be something different entirely. Though I suppose this is the case in all constitutions, the American though rigid does allow for many interpretations but I don't think it allows for as many as the UK constitution. Why isn't the UK constitution codified? I think it should be, at least everything is right there in your face but I swear I know more of what's in the American constitution than the UK one purely because it s all in one document! Of course there are many other faults of the UK constitution and many superiorities as well. what are your thoughts?
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Aphotic Cosmos
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The only codified constitution in existence that even approaches the age of the British one is that of San Marino, which as a microstate faces a considerably different relationship with it's neighbours and citizens than a populous major power like the UK does. The inherent flexibility of our constitution means that we can change the nature of the state as and when necessary rather than relying on extremely painful and lengthy court battles or even revolution or rebellion to stir up the constitutional reality of the nation. We are one of just three states (along with New Zealand and Israel) which recognise the fact that setting out certain values in a static document which can barely change with the times is a terrible idea.

You can already see the problems in the US now, the oldest nation-state with a relatively unchanged codified constitution - whilst in the UK we've given up most (still got the important clauses) of Magna Carta, for example, because it's no longer relevant, Americans and the American establishment cling hopelessly out of a need for a common governmental structure for all the peoples and ethnicities of the union, to a constitution that is now simply not fit for purpose and has almost never changed (17 amendments made after 1800! We make that many in a year by passing Acts of Parliament). In fact the US constitution is a fantastic example of a nation failing to learn from it's mistakes. The US has had two constitutions - the Acts of Confederation were replaced by the Constitution in the 1790s after it was realised that the former was totally inadequate for the governance of a strong federation. For a nation populated by revolutionaries who actually admired the liberal, malleable constitution of England, they sure had a funny way of doing things since they managed to repeat a mistake that they had made less than twenty years prior. The US has been able to put off asking itself deep constitutional questions through a bunch of messy compromises and the Civil War, but the fact remains that every codified constitution, including that of the United States, is simply a tool used by revolutionary or restored governments to signify the start of a new era without much thought about what it will mean for future generations, and that there will be a day when the US constitution runs into a wall and the federal government is thrown into an existential crisis. That crisis will either precipitate the creation of a new constitution, the collapse of the United States altogether, a serious rewriting of the present constitution or the adoption of a malleable constitution like that of England and New Zealand.

TL;DR: uncodified constitutions are the only type that recognise the inherent need for change present in all humans. It's not enough to just write a document and say "from here on in, this will do", because inevitably it won't do some day and then a new constitution will have to be written with exactly the same problem. We have rewritten most of our constitution several times, but without rebellion or painful constitutional court-wrangling because we can do it piece by piece as it's convenient for government and the people, and as frequently as we mandate our politicians to do so. We also maintain our links to the past because we recognise that our ancestors did get a lot of things right - we do still honour Magna Carta in the law in a limited capacity, and other important constitutional documents and Acts of Parliament from throughout English, Scottish and British legislative history.

Really TL;DR: uncodified = good, codified = dumb.

The best example I can give of this is the number of nations calling themselves "The nth <demonym> Republic" like France (fifth) and Poland (third). On the other hand you can trace our nation back, essentially uninterrupted, for 1200 years to the founding of England. France had to rewrite it's constitution as recently as the 1960s after an attempted coup d'etat! In France! You know, that sunny place across Le Manche? Codified constitutions are a recipe for disaster.
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gladders
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Nicely done Aphotic Cosmos, couldn't have put it better.
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Aphotic Cosmos
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(Original post by gladders)
Nicely done Aphotic Cosmos, couldn't have put it better.
Thanks, but actually you got me interested in all this when you corrected me big time in a thread about codified constitutions over a year ago

I <3 our constitution!
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Morgsie
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The UK Constitution is comprised of various Acts of Parliament, Common Law, Doctrines etc.

(I have studied this)
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gladders
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(Original post by Aphotic Cosmos)
Thanks, but actually you got me interested in all this when you corrected me big time in a thread about codified constitutions over a year ago

I <3 our constitution!
Wow! Now that's a compliment
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EconDal
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Can someone help with this short course work question?

The introduction of a written constitution into the United Kingdom would be relatively straightforward legislative task; the Executive would initiate, the Legislature would entrench, and the courts would enforce and protect. Discuss.
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sleepysnooze
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I think a codified constitution is best for defending a country against tyranny and authoritarianism towards the individual. this is assuming you were to begin with an individualist constitution to begin with, which, in our tradition, our constitution *would* be that way. in my opinion, it takes hipster-ism to justify an unwritten one, because *no* other country, except new zealand (because of our influence), has one, because there are obvious democratic (in the liberal sense) flaws without concrete rules and mechanisms. for example, for all those whinging about the new surveillance laws - it wouldn't pass if we had a very liberal (individualistic) constitution that specified the right to privacy from government. and really, freedom is better than simple-majority democracy; nobody thinks that 50%+1 is enough to destroy the rule of freedom of speech, or the right to life, or example. so if people recognise this fact, then it makes no sense to say that an uncodified constitution, for flexibility's sake (democracy-based, I assume) is sufficient. it isn't good to *want* a government that can change its own constitutional rules without any kind of substantial frustration. that frustration is purposeful for our own rights' sake. to recede liberty should require the most immense scrutiny, within reason. it is possible to balance the interests of both liberty and democracy - super-majorities (e.g. 66%, or 75%)
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EconDal
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so what would be a simple breakdown of an answer?
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L i b
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#10
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(Original post by Anonanono)
hThough I suppose this is the case in all constitutions, the American though rigid does allow for many interpretations but I don't think it allows for as many as the UK constitution.
I don't think that's the case. Look at how abortion rights were read into the US constitution in Roe v. Wade for example. We don't have anything like that, nor any significant amount of judicial activism.

Why isn't the UK constitution codified? I think it should be, at least everything is right there in your face
Well, there's a level of "what do you put in there?". If you were to try to codify everything constitutional in our law and conventions, it'd be a series of books, not a document. Alternatively we could codify it in a single sentence: "Legislative power is vested in the Crown-in-Parliament and Executive authority is vested in the Crown". So you can't really expect everything in there: it's a judgement call.
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gladders
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(Original post by EconDal)
Can someone help with this short course work question?

The introduction of a written constitution into the United Kingdom would be relatively straightforward legislative task; the Executive would initiate, the Legislature would entrench, and the courts would enforce and protect. Discuss.
Sure, it would be straightforward, but would it be beneficial? If the constitution were as vague as the summary above, it wouldn't be much different from our current uncodified constitution. If it were more detailed it would be unhelpfully rigid.

In addition there's a ton in our constitution that relies on convention and simply cannot be written into a codified one. Nick Clegg saw that in 2011 when he tired to get Article 2 of the Draft House of Lords Bill through and it simply did not fly with anyone not in fantasyland.
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EconDal
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(Original post by gladders)
Sure, it would be straightforward, but would it be beneficial? If the constitution were as vague as the summary above, it wouldn't be much different from our current uncodified constitution. If it were more detailed it would be unhelpfully rigid.

In addition there's a ton in our constitution that relies on convention and simply cannot be written into a codified one. Nick Clegg saw that in 2011 when he tired to get Article 2 of the Draft House of Lords Bill through and it simply did not fly with anyone not in fantasyland.
ok thanks.

Expanding on your first point, is there an actual process by which it would be undertaken and codified? Are there any major points you think i should put in the essay?
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ByEeek
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(Original post by sleepysnooze)
I think a codified constitution is best for defending a country against tyranny and authoritarianism towards the individual.
Isn't this a bit of a contradiction on your part though? On the one hand, the UK has done very nicely without a formal constitution for the last 1000 years or so. However, on the other, we are seeing our liberty from the state being slowly eroded by successive governments over recent years, citing anti terrorism as the reason for wanting to poke into our lives.

Fortunately the EU have enshrined our right to privacy in law. Yet you want to leave the EU. I am not convinced an independent UK would reinstate its own version of the right to privacy and if it did, it would be full of caveats and get out clauses. i.e. you have the right to privacy, but only if the government says you do.
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Democracy2013
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(Original post by EconDal)
Can someone help with this short course work question?

The introduction of a written constitution into the United Kingdom would be relatively straightforward legislative task; the Executive would initiate, the Legislature would entrench, and the courts would enforce and protect. Discuss.
First question: what level is your course, A-level or 1st/ 2nd year university. Higher levels require more and lower levels, less.

"The introduction of a written constitution into the United Kingdom would be relatively straightforward legislative task"

The question asks you about the UK's Constitution, but does not refer to its sources. It does not ask you to refer to other country's constitutions, so my advice is stick to the main terms of the question. Keep referring your question to the UK's unwritten constitution when considering the prospect of an unwritten constitution. You do not have the word space to discuss everything.

First explain what a constitution is briefly and concisely, outlining the role of the Executive (ie the Prime Minister) in terms of initiating. A constitution is used to separate the powers of government and protecting citizens from dictators, based on the rule of law (no power without legal authority). How would a written constitution be initiated? The question suggest the executive initiates it? Is this true, if so to what extent? Well the executive could start it as government Bill by raising the matter in Parliament or do it through a royal prerogative (acquired from ancient rights of the Queen). Could it be initiated in any other way? What about Parliament MPs introducing a Bill of their own?

Next, is the legislature's entrenchment, ie Parliament. Mention what is entrenchment briefly. It means something that is very secure. So which devices are secure enough to entrench? If they use a statute (parliament act) it will be more secure, as primary legislation passes through Commons and Lords and scrutinised than secondary a statutory instrument, which it not scrutinised. What about the EU and Parliament, would a written constitution affect parliament, ie European Communities Act 1972.

What is the courts role and how would they enforce a written constitution? Briefly mention the USA Constitution it its highest legal source, interpreted only by the its Supreme Court: Marbury v Madison (1806). Try and think of some ideas such as the higher courts roles, which include interpreting legislation and lower courts following the higher courts' decisions (binding precedent). What about the EU, will this affect a written constitution?
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whorace
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None of those things could happen if there was not already a constitution in place dictating that those organs of power are responsible for those specific actions, it's a pointless gesture which can be discarded at any moment.
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gladders
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(Original post by EconDal)
ok thanks.

Expanding on your first point, is there an actual process by which it would be undertaken and codified? Are there any major points you think i should put in the essay?
I'd list what scolars have said as the advantages and disadvantages of each, and find practical examples - chiefly comparing the UK experience with those of countries with codified constitutions. One thing I think would show particular observance is pointing out that while many look to the US as a success story they ignore many examples of where written constitutions have failed to secure liberty, or even been well nigh as amorphous as uncodified ones - for example, I forget where I read it, but the majority of the world's codified constitutions are less than thirty years old. France has had seventeen constitutions since its Revolution.
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Democracy2013
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(Original post by gladders)
I'd list what scolars have said as the advantages and disadvantages of each, and find practical examples - chiefly comparing the UK experience with those of countries with codified constitutions. One thing I think would show particular observance is pointing out that while many look to the US as a success story they ignore many examples of where written constitutions have failed to secure liberty, or even been well nigh as amorphous as uncodified ones - for example, I forget where I read it, but the majority of the world's codified constitutions are less than thirty years old. France has had seventeen constitutions since its Revolution.
Have you ever answered a question proportionately in a law assignment? It may well be interesting to say certain things...but if the question does not ask you that, you're essentially just wasting very important word space.
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sleepysnooze
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(Original post by ByEeek)
Isn't this a bit of a contradiction on your part though? On the one hand, the UK has done very nicely without a formal constitution for the last 1000 years or so. However, on the other, we are seeing our liberty from the state being slowly eroded by successive governments over recent years, citing anti terrorism as the reason for wanting to poke into our lives.

Fortunately the EU have enshrined our right to privacy in law. Yet you want to leave the EU. I am not convinced an independent UK would reinstate its own version of the right to privacy and if it did, it would be full of caveats and get out clauses. i.e. you have the right to privacy, but only if the government says you do.
oh okay, so I have to support the EU simply because it has a codified constitution? and I have to dislike my own government compared to it simply because it is flawed? how about this: "I prefer that my country had a codified constitution, so that it could offer the best defence against the things that you say the EU, which is negative for various reasons, claims to do, without out needing to accept all the negatives of that other institution"?
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Democracy2013
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It's the European Convention of Human Rights which enshrines the right to privacy in the domestic (national) legal system. Convention rights as per its terms are interpreted by the relevant courts in the UK owing to them being incorporated into the Human Rights Act 1998. The European Court of Justice is a different creature and deals with the internal market interests including commercial law of Member State businesses.
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honestly
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(Original post by Aphotic Cosmos)
The only codified constitution in existence that even approaches the age of the British one is that of San Marino, which as a microstate faces a considerably different relationship with it's neighbours and citizens than a populous major power like the UK does. The inherent flexibility of our constitution means that we can change the nature of the state as and when necessary rather than relying on extremely painful and lengthy court battles or even revolution or rebellion to stir up the constitutional reality of the nation. We are one of just three states (along with New Zealand and Israel) which recognise the fact that setting out certain values in a static document which can barely change with the times is a terrible idea.

You can already see the problems in the US now, the oldest nation-state with a relatively unchanged codified constitution - whilst in the UK we've given up most (still got the important clauses) of Magna Carta, for example, because it's no longer relevant, Americans and the American establishment cling hopelessly out of a need for a common governmental structure for all the peoples and ethnicities of the union, to a constitution that is now simply not fit for purpose and has almost never changed (17 amendments made after 1800! We make that many in a year by passing Acts of Parliament). In fact the US constitution is a fantastic example of a nation failing to learn from it's mistakes. The US has had two constitutions - the Acts of Confederation were replaced by the Constitution in the 1790s after it was realised that the former was totally inadequate for the governance of a strong federation. For a nation populated by revolutionaries who actually admired the liberal, malleable constitution of England, they sure had a funny way of doing things since they managed to repeat a mistake that they had made less than twenty years prior. The US has been able to put off asking itself deep constitutional questions through a bunch of messy compromises and the Civil War, but the fact remains that every codified constitution, including that of the United States, is simply a tool used by revolutionary or restored governments to signify the start of a new era without much thought about what it will mean for future generations, and that there will be a day when the US constitution runs into a wall and the federal government is thrown into an existential crisis. That crisis will either precipitate the creation of a new constitution, the collapse of the United States altogether, a serious rewriting of the present constitution or the adoption of a malleable constitution like that of England and New Zealand.

TL;DR: uncodified constitutions are the only type that recognise the inherent need for change present in all humans. It's not enough to just write a document and say "from here on in, this will do", because inevitably it won't do some day and then a new constitution will have to be written with exactly the same problem. We have rewritten most of our constitution several times, but without rebellion or painful constitutional court-wrangling because we can do it piece by piece as it's convenient for government and the people, and as frequently as we mandate our politicians to do so. We also maintain our links to the past because we recognise that our ancestors did get a lot of things right - we do still honour Magna Carta in the law in a limited capacity, and other important constitutional documents and Acts of Parliament from throughout English, Scottish and British legislative history.

Really TL;DR: uncodified = good, codified = dumb.

The best example I can give of this is the number of nations calling themselves "The nth <demonym> Republic" like France (fifth) and Poland (third). On the other hand you can trace our nation back, essentially uninterrupted, for 1200 years to the founding of England. France had to rewrite it's constitution as recently as the 1960s after an attempted coup d'etat! In France! You know, that sunny place across Le Manche? Codified constitutions are a recipe for disaster.
oh my! masterfully written :-)
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