There are many arguments in favour of the U.K adopting a codified constitution. Because a ‘written’ constitution only contains a single legal document, they are more clearly defined as rules and are much more clear than the numerous documents involved in an ‘unwritten’ constitution. Since most of the U.K’s current constitution is unwritten, it is unknowable and results in the citizen having to employ a great deal of trusteeship in both the judicial system and the government, to play by largely unwritten rules. It is therefore argued that a codified constitution would provide a far more democratic system if our constitutional arrangements were limited by the law and more clearly defined. Not only this, it would also provide an educative benefit, as it would highlight both the central values and the overall goals of the political system.
A second argument supporting codification is that it would cut the government down to size and limit their increasing power. A codified constitution would effectively end the principle of parliamentary sovereignty and it would provide a counter-balance to the power of the executive. At present, through the royal prerogative the PM wields an enormous power, such as the power to declare war, and adopting a codified constitution would provide a safeguard to protect the constitution from interference by the government by the day.
The strongest argument in favour of a codified constitution is that it would protect our rights. Individual liberty would be more securely protected by a codified constitution and it would define a clearer relationship between the state and the citizens. Rights would therefore be more transparent, and they would be easier to enforce. An uncodified constitution also increases the chance of elective dictatorship, which further restricts rights. Despite steps in the right directions a result of the introduction of the European Convention on Human Rights, through the Human Rights Act of 1998, rights are still not thoroughly protected since they lack entrenchment in our political system An example of a way to define rights is to have a bill of rights in the codified constitution. This document would specify the rights and freedoms of the individual, and so defines the legal extent of a civil liberty.
Although there are many benefits in adopting a ‘written constitution’ I believe there is a stronger argument for the U.K to keep its constitution in its ‘unwritten’ form. Firstly, there is no formal process where a codified constitution could be introduced. Many people have dismissed the idea as simply unachievable, as there is simply no mechanism within the U.K’s political and legal system to establish higher law. The only solution would be to ‘invent’ a mechanism and this leads me to my next problem. For this to happen, a cross-party constitutional convention would probably have to happen, and at the moment the major parties and politicians are unable to agree on how they should be funded, or what remuneration MPs should receive. As if to underline this point, Parliament has once again delayed to make a decision what to do with the House of Lords. Moreover, the major parties disagree about the current nature and content of the constitution and to employ a codified constitution they would need to agree on both the principle of codification and the detailed provisions of the constitutions itself. At the moment, this is clearly an unachievable and near impossible situation.
Codified constitutions are seen as rigid. Higher law is more difficult to amend than statute law and uncodified constitutions are flexible, as they are not entrenched like codified constitutions. Due to the rigidity of a codified constitution, the constitution could easily become outdated and fail to respond to an ever-changing political environment. Flexibility is a very important ability as it allows the constitution to remain relevant and up-to-date, and the impermeability of a codified constitution is a major downside.
Another argument against adopting a ‘written’ constitution is the threat of judicial tyranny and democratic rule. The U.K’s long period of unbroken democratic rule is often seen as a strength of the uncodified constitutional system. Under a codified system judges would be the people policing the constitution. They are clearly not the best to be people to be doing this, as they are socially unrepresentative and have not been voted in, resulting in a clear democratic deficit. A codified constitution would be interpreted in a way that is not subject to public accountability and there is a high chance that it may reflect the preferences and values of senior judges.
Finally I believe the conversion of an ‘unwritten’ constitution to a ‘written’ one is a completely unnecessary. Firstly, there is no need. Britain has not undergone any kind of constitutional crises that have caused countries to draft a written constitution such as Japan and Germany after WWII. The only shock that might result in a ‘written’ constitution would be if Scotland became independent. Also, codified constitutions may not be the most effective way of limiting government power. Improving democracy or strengthening checks and balances may be a more effective way of preventing an over-powerful government, making a written constitution unnecessary.
Overall, there are two strong arguments for and against a codified constitution. I believe that the U.K constitution should stay ‘unwritten’ 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.
