The advantages of a codified constitution now outweigh the disadvantages. Discuss [40 marks]

One of the primary issues in regards to whether the advantages of a codified constitution now outweigh the disadvantages is its sense of a lack of social mobility and a failure to adapt. In effect, a codified constitution would prohibit the extent in which the Legislature can maneuver, which as previously stated undermines it’s power of legitimacy. In regards to adaptability however, the fundamental premise in which the implementation of a codified constitution is found wanting is its rigid nature in terms if natural progression. This is in sharp contrast to the current uncodified format of Britain’s current constitution which has used its flexible nature to allow natural adaptation to the tune of social change. So, for example, the non-political role of the monarchy has gradually evolved from being a centre piece in the UK’s political structure to being an institution which has no say in UK politics; Royal Assent is only a tradition and the Queen can’t realistically deny an Act of Parliament. Flexibility is particularly advantageous in keeping the constitution up-to-date, it has the ability of political change and development. Unlike a written constitution, which does not have the ability to change as freely, highlighting this, the fact the American constitution has only been altered 27 times.

Furthermore, the advantages of a codified constitution do not now outweigh the disadvantages as a codified constitution may lead to an excessively powerful judiciary. Judges are, by necessity, unelected in order to provide impartiality when they rule on specific cases. A larger role for the judiciary would empower these unelected officials to "legislate from the bench" by interpreting laws according to their political views and striking down legislation they oppose. For instance, the constitutionally-empowered judiciary of the United States often even goes so far as to dictate the details of social policy. A constitution would not get rid of unappealable power, but rather transfer that power to a body far less accountable than Parliament. The power the judges now have could lead to judicial tyranny. Judges should not be able to police the constitution because they are unelected [by the electorate] and are not socially representative. This means that there is a lack of democratic legitimacy and certain groups in society (e.g. ethnic minorities) may not get their opinions realised. The lack of democratic legitimacy amongst judges would lead to a democratic deficit because it acts on a limiting factor on governmental power.  

Another disadvantage to constitutional reform, particularly relating to Britain is the issue of who would write the constitution should we decide it to be written. With the possibility of having a written constitution the issue of considering who would write it would be one of great disagreement and debate. It would cause a great degree of pressure in locating a single group, or individual of a neutral position. Also, under the existing constitution there is nobody that can legitimise a written constitution. Parliament would have to pass many bills to state that laws are not valid, this would be time consuming. As quoted by William Hague 'that there was no need for a written constitution as we already have internal stability, and Britain has been well served by its unwritten constitution'.

However, a written (or codified)  constitution acts as a safeguard against extremists and politicians attempting to consolidate power. In the unlikely event that a political party gained power and attempted to impose radical and tyrannical change upon the citizenry, specific constitutional limits on the power of government, and specific protection for rights vital to democracy and government accountability, would provide a major obstacle. While there are certainly other avenues to establish despotism, a constitution would deprive any potential extremist of the ability to achieve it within the confines of the law. So for example the German constitution allows the German Federal Constitutional Court to declare parties unconstitutional and dissolve them, this is in order to prevent the rise of extremists to power in the way Hitler managed it. It has twice declared parties unconstitutional; these were the Socialist Reich Party and the Communist Party of Germany both in 1951.

Moreover, A formal constitution provides the separation of powers necessary to keep each part of the government in check. Clearly delineated oversight powers in an independent judiciary would halt Parliament's attempts to overstep its mandate, and provide a mechanism to redress flagrant violations of ethics by MPs. Such a check on the power of the Parliament would be a welcome change from the status quo of a government who may act with little accountability short of an election. Similarly, explicit and independent powers for the House of Lords and the House of Commons would codify a role to hold each other accountable. This would be similar to the way that the United States constitution works with its famous separation of powers and checks and balances with the exception that the executive would still be within the legislature rather than completely separate.

In conclusion, the advantages of a codified constitution do not outweigh the disadvantages as a codified constitution could lead to the Judiciary holding excessive power and becoming tyrannical. Furthermore, deciding what to include, who should write it and how it should be written would cause a huge debate, therefore costing a lot of taxpayers money and a lot of MPs time. Moreover, a codified constitution leads to an obsession with the text itself. The wording of the constitution would cause a mass debate as the Party in Government at the time the constitution is codified would be able to slant it towards their political ideology. By establishing a formal document as the supreme law of the land, the state creates an incentive for all actors to interpret it in bad faith in order to suit their agendas. For example, in the United States, politicians, lobby groups, corporations, and citizens all fight over what the phrasing of the "the right of the people to keep and bear arms" means. There are however advantages to a codified constitution, such as it would provide a safeguard against an ‘elective dictatorship’ and it provides the separation of powers necessary to keep each part of the government in check. But, because of the huge disadvantages, I conclude that the advantages of a codified constitution do not outweigh the disadvantages.