Discuss and analyse the 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...
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