I’ve written a lot in the past about the UK’s constitutional set up and what makes up the constitution. It is a very unique position amongst modern political systems with it being uncodified; not written in one document. With this in mind that does bear the question, can anything be unconstitutional?
The ultimate source of constitutional power in the UK is Parliament. The basis of the UK constitutional set up is Parliamentary Sovereignty. This is effectively: Parliament is the ultimate source of law and it is not bound by any other body other than itself. The only restriction there is in practice against Parliament in what it can’t do is that it cannot bind future Parliaments. In theory, the Monarch can close Parliament but in modern-day political standings, this is not done without Government instruction/request.
With all of this in mind does this mean that Parliament is so supreme it cannot be held to account no matter what it legislates for and all actions it takes are by default constitutional as Parliament is effectively the writer of the constitution? At present, there is a power greater than Parliament that can hold UK Governments to account who under normal circumstances are in control of Parliament when having a majority in the House of Commons and that is the EU. A condition of membership is all UK law must be compatible with EU law. However, this will change once Brexit takes effect.
With a large portion of the constitution being convention; unwritten rules, Parliament is free to take any of these rules that are unwritten and either make new rules through legislation or simply ignore them as they are not technically written in the law, therefore, ignoring them can’t be deemed illegal. This combined with that fact the Supreme Court doesn’t have the legal power to make Parliament do anything even if Parliament has been found to have been in breach of the law.
It should be made clear that the same rules do not apply to the UK Government. The Government can be found to be in breach of the law and be forced to act where it is found to be acting in breach of the law. The Government is not sovereign or the body that actually makes the law. The Government merely proposes the legislation and Parliament is the body that passes it, it then becomes law once it has received Royal Assent from the Monarch.
Especially with Brexit looming it must be asked that is this system of government and constitutional set up actually democratic? With the UK Parliament working as a representative body this means that the people are signing off their consent for Governments and by extension Parliament to act on their will by representing them. There’s no public form of holding Parliament and Governments to account other than General Elections and thanks to the Fixed Term Parliaments Act this is no longer as easy to call as it once was.
To answer my original question of does unconstitutional exist without a written constitution, I would say that it does in all but the written word. By this, I mean decrees in court and Parliament can be given but at the end of the day there’s not a mechanism of there being a ruling that declares something unconstitutional which makes a legally binding ruling on a political and/or legal body to act to make whatever decision was ruled unconstitutional, constitutional. In this sense, the spoken word is currently greater than the written word. This is what must change.
For our democracy in Britain to be enhanced and brought in line with more modern principles of what is deemed to be a democratic system, a new codified constitution needs to be set up and implemented which has a true system of checks and balances between Governments, Parliament and the Courts. An effective method of public accountability must also be incorporated that takes a different form of a General Election. This form could possibly be a form of Judicial Review, which we have now, but with this new method, Local Governments across the counties could put out local referendums whether the UK Government and/or Parliament is acting illegally, against the will of the people or if Parliament needs to be recalled and a General Election be called. This would add systems and principles of Direct Democracy to the UK’s political system.
I’ve said in the past that the UK’s democracy as a whole is being held in the balance and has also been tainted, mostly down to Brexit. Yet even after Brexit, even if the UK ends up remaining in the EU, our democracy is not magically fixed and there remains work to be done. Democratic reform and renewal is an ongoing process and if it isn’t our democracy stagnates and countries can descend into totalitarian regimes.
Democracy only continues when democracy is used and put into practice.