Arguments for and Against Adopting a Codified Constitution in the UK

A constitution is a set of rules that seek to establish the duties, powers and functions of the various institutions of government. They also regulate the relationship between and among the institutions and define the relationship between the state and the individual. There are many different types of constitutions. The constitution that is in place in the UK is an uncodified one. In other words, it is not written on a single bill and consists of various written and unwritten sources. An uncodified constitution is not judiciable, not authorititative and also not entrenched. A codified constitution on the other hand is written on a single document.

Codified constitutions have three key features. In a codified constitution the document itself is authoritative in the sense that it constitutes ‘higher’ law. The constitution binds all political institutions, including those that make ordinary law. The provisions of the constitution are also said to be entrenched. This means that they are difficult to amend or abolish. As a codified constitution sets out the duties, powers and functions of government institutions in terms of ‘higher law’ it is judiciable. This essay will highlight the fact that the UK should not adopt a codified constitution as an uncodified one which is in place happens to be superior.

On the one hand there are many arguments supporting the view that the UK should adopt a codified constitution. If a codified constitution was introduced it would significantly affect the power of government, the relationship between the executive and Parliament and the relationship between judges and politicians. One argument is that a codified constitution would make rules clearer. Key constitutional rules are collected together in a single document; they are more clearly defined than in an ‘unwritten’ constitution where rules are spread across many different documents. There is a lot of uncertainty in an uncodified constitution particularly to the constitutions unwritten elements i.e. convention of individual ministerial responsibility, does the minister resign even if the mistake was not his?

A codified constitution would create less confusion about the meaning of constitutional rules and greater certainty that they can be enforced. The fact that the constitutution is written on a single bill which subsequently creates clarity could translate into higher participation rates which are in decline. This is partly due to the fact that there is a better awareness of rights and people know exactly where they stand, courtesy of a single bill document that clearly defines the political system and people’s rights.

A second argument supporting a codified constitution is limited government. A codified constitution would cut government down to size. A codified constitution would effectively end the principle of parliamentary sovereignty and subsequently elective dictatorship. Elective dictatorship is a constitutional imbalance in which executive power is checked only by the need of governments to win elections. In the UK, it is reflected in the ability of a government to act in any way it pleases as long as it maintains control of the House of Commons. It would also not be possible for government to interfere with the constitution due to the existence of higher law safeguarding the constitution. With the uncodified constitution in place we have recently seen David Cameron introduce a new ‘British Bill Of Rights’ which is essentially a watered down version of our previous rights. A codified constitution would also allow for neutral interpretation. A codified constitution would be ‘policed’ by senior judges. This would ensure that the provisions of the constitution are properly upheld by other public bodies. Judges are also ‘above’ politics and they would act as neutral and impartial constitutional arbiters.

A codified constitution also has educational value. A codified constitution highlights the central values and overall goals of the political system. This would strengthen citizenship as it creates a clearer sense of political identity which may be particularly important in an increasingly multicultural society.

One of the strongest arguments in favour of a codified constitution is that a codified constitution would protect rights. Individual liberty would be more securely protected by a codified constitution because it would define the relationship between the state and the citizens. As a result of this rights would be more clearly defined and they would be easier to enforce than with the current uncodified constitution that exists in the UK. An uncodified constitution can also lead to elective dictatorship which further restricts rights. One way these rights could be defined is through a bill or rights in the codified constitution. A bill of rights is a document that specifies the rights and freedoms of the individual, and so defines the legal extent of civil liberty. In Britain there is no bill of rights on terrorism legislation which exposes the weak protection of rights that an uncodified constitution offers.

On the other hand there are many arguments against the idea of a codified constitution. One argument is that codified constitutions are considered rigid. Higher law is more difficult to change than statute law. It is easier to and quicker to introduce an Act of Parliament than to amend a constitution. Uncodified constitutions are flexible as they are not entrenched like codified constitutions. Due to the rigid, inflexible nature of codified constitutions it is difficult for the constitution to remain relevant and up-to-date. Codified constitutions can’t be changed easily and therefore find it difficult to respond to changing political and social circumstances. Flexibility is a very important, for example, the UK’s unwritten constitution has allowed devolution in Scotland and Wales, this was a response to rising nationalism and it was very effective in keeping both countries feeling apart of the UK as we were able to grant them there own governments and Welsh assembly. It is a useful ability for a constitution to be able to adapt in the modern ‘ever-changing’ environment, codified constitutions are rigid and therefore this is a major downside to their cause.

A second argument against adopting a codified constitution is judicial tyranny and democratic rule in the UK. The UK’s long-period of unbroken democratic rule is often seen as a strength of the uncodified constitutional system. In the UK’s uncodified constitution, supreme constitutional authority is vested in the elected House of Commons. Changes to the constitution therefore come about due to democratic pressure. For example, the powers of the House of Lords were reduced through both Parliament Acts of 1911 and 1949 because of a growing belief that an unelected second chamber should no longer have the right to block policies of the elected government. Under a codified constitution judges would be the people policing the constitution. Judges are unelected and social unrepresentative which would lead to a democratic deficit due to a lack of democratic legitimacy. A codified constitution would be interpreted in a way that is not subject to public accountability. It may also be interpreted due to the preferences and values of senior judges.

Another argument against adopting a codified constitution is that Parliamentary sovereignty would be effectively abolished. The principle of parliamentary sovereignty states that parliament can make, unmake or amend any law it wishes. With a codified constitution parliament would not be able to make, unmake or amend any law it wishes due to the existence of the constitution, and potentially a bill or rights. This is because a codified constitution would act as a form of higher law. Therefore, a codified constitution would undermine one of the key principles in the UK’s representative democracy.

A less important but still valid argument against a codified constitution is that it is unnecessary. Many people believe that the uncodified constitutional nature of UK politics has ensured we have a long-history of democracy. For example, the Atlee post war government saw through radical reforms and the welfare state was then born which is today still one of Britain’s biggest political achievements. Codified constitutions may also not be the most effective way of limiting government power. Improving the checks and balances in our political system may be a better way of preventing over-might government rather than having a codified, written constitution.

Looking at both arguments, there are strong cases for both views on whether the UK should have a codified constitution or not. This essay argues that the UK should not adopt a codified constitution. This is for many reasons including: inflexible; judicial tyranny; parliamentary sovereignty and that it is unnecessary. The most damning factor has to be that it is inflexible. Codified constitutions are by nature entrenched and higher law rules over statute law. In the UK if our laws need to be changed then statute law can be changed through the passing o fan Act of Parliament. With a codified constitution it is much harder to change laws and therefore constitutions can become outdated with a rapidly changing modern society. For example, the USA needs two thirds of a majority of congress (38plus/50 states) to make amendments to the constitution. This has made it seriously difficult to tackle the USA’s problem of gun crime as ‘the right to bear arms’ is entrenched into their constitution. It still remains that uncodified constitutions are more flexible and easier to change than codified constitutions.

Overall, there are two strong arguments for and against a codified constitution. The main argument for a codified constitution is that it provides clear rules and acts as a limiting factor on government. On the other hand the arguments against a codified constitution are that it is rigid and could lead to a democratic deficit due to judicial tyranny. This essay has argued that the UK should not adopt a codified constitution because in modern times and scenarios e.g. terrorism, it is better to have a flexible way of changing laws rather than a rigid system. Therefore, the UK should not have a codified constitution.