Codified Constitution

Question 1

arguments to suggest that the UK needs a codified constitution

Answer 1

provide more clarity
limited government
judges are neutral and independent

Question 2

arguments to suggest that the UK does NOT need a codified constitution

Answer 2

overly rigid
unnecessary
judicial tyranny

Question 3

provides more clarity: what would a CC
provide clarity over?

Answer 3

would provide greater clarity about citizens rights and the powers of government
would clarify uncertainty about conventions governing the power of the Prime Minister, circumstances in which ministers should resign and what happens in the event of a hung parliament with no clear election winner
would create more clarity on the nature of how the country should be governed, therefore making immediately clear when a government is acting unconstitutionally

Question 4

provides more clarity: when would this be especially useful?

Answer 4

this is especially useful when political disputes occur as it will reduce the ambiguities on how to act in certain situations that exist under an uncodified constitution
for example, if the UK’s constitution was codified there would be clarity on what to do in the event of a referendum such as Brexit and minimal disagreements on what to do as there would be a clear protocol to follow

Question 5

provides more clarity: when would this be especially useful?

Answer 5

this is especially useful when political disputes occur as it will reduce the ambiguities on how to act in certain situations that exist under an uncodified constitution
for example, if the UK’s constitution was codified there would be clarity on what to do in the event of a referendum such as Brexit and minimal disagreements on what to do as there would be a clear protocol to follow

Question 6

overly rigid: why is a CC overly rigid?

Answer 6

a disadvantage is that codified constitutions tend to be more rigid as they are entrenched, meaning that the constitution could easily become outdated and fail to respond to the ever-changing political environment
it is vital that constitutions are amended overtime but a codified one would be very difficult to change because ‘high law’ requires special procedures in order to be amended and cannot be changed with a simple act of parliament like it can be currently under an uncodified constitution

Question 7

overly rigid: Scotland Act 1998

Answer 7

the 1998 Scotland Act, which devolved powers to Scotland, illustrates the adaptability of an uncodified constitution that a codified constitution does not possess
such a change would have been very difficult under a codified constitution
a CC would not allow the government to make vast reforms or implement policy, making for an ineffective government

Question 8

overly rigid: may entrench out of date ideas and make necessary change difficult to achieve

Answer 8

a codified constitution can entrench out of date ideas and make necessary change difficult to achieve
for example, in the US, the constitution can only be amended if approved by 2/3 of Congress and 3/4 of all states
some say that this codified constitution in the USA is one of the reasons why the achievement of rights for African Americans took far longer than it should have
recently, with the rise of mass shootings in the USA, a clear disadvantage of a codified constitution has been made evident as gun laws or even gun restrictions are extremely difficult to bring about as the right to bear arms in a constitutional amendment
so even in a time when reform is needed, change is very hard to bring about

Question 9

overly rigid: why is a UC better?

Answer 9

an uncodified constitution allows for greater flexibility
for instance, the UK constitution can adapt to political and social change very easily
constitutional reform since 1997 can be seen as evidence of the constitution’s ability to absorb change
the executive can rapidly respond to changing situations (e.g. countering the threat of terrorism), but the government would be very constrained under a codified constitution

Question 10

limited government: how would a CC limit government power?

Answer 10

a CC would cut the government down to size and provide a solution to the problem of elective dictatorship by ending absolute parliamentary sovereignty - check on government power, provide limits on the power of the executive
a CC would limit government power and mean that there would be more safeguards against abuse of power from the executive as the government will not be able to interfere with the constitution however they please if it is codified
a codified constitution would prevent what Lord Hailsham referred to as an “elective dictatorship” by ensuring that parliament cannot make or unmake any laws that they please
such a constitution would end absolute parliamentary sovereignty because the constitution would only be amendable through elaborate procedures, thereby providing a check on government power
a Bill of Rights under a CC would protect individual liberties more than the Human Rights Act 1998 (e.g. 2005 control orders demonstrate how the government can find ways around the act)

Question 11

limited government: example of a government under a UC being able to pass vast reforms despite being elected on a minority of the vote

Answer 11

in 2006, the Labour government was elected on only 35% of the vote yet preceded to make profound changes to the constitution and the country as a whole despite lacking democratic legitimacy
for instance, it introduced the Identity Card Act which created national identity cards linked to a database
under a codified constitution, there would be more sufficient checks on what the government can and cannot do by laying out clear rules
such changes would require a very orderly and careful process which would reduce the chances of a government pushing through rushed and ill considered changes

Question 12

limited government: how does a UC allow for an overly powerful government?

Answer 12

an uncodified constitution allows the government to push the boundaries of what should be politically possible and increase their
own power
a government with a strong majority, which is common under first past the post, can force through legislation and undermine civil liberties because constitutional laws have the same status as ordinary laws and can be repealed easily

Question 13

unnecessary: no need to create one, no demand to create one

Answer 13

a codified constitution may not be the most effective way of limiting government power - improving democracy or strengthening existing checks and balances may be a better way of achieving this, thus making a codified constitution unnecessary
most countries, such as the USA and France, that have a CC have had to form one due to a major political upheaval in their history but Britain has not needed to collate a constitution together as our constitution has organically evolved, so there has been no reason to create a codified constitution
moreover, there is not much pressure to do so apart from pressure groups such as Unlock Democracy and there is next to no public demand either

Question 14

unnecessary: creating a CC would be too complicated now

Answer 14

another reason why a codified constitution is unnecessary is that there would be no agreement on what to include in one
it would be extremely difficult to find consensus and would require years of debate and consultation
it would be an overly complicated process as we have so many sources making up our constitution, it dates back farther than most constitutions
for instance, the US constitution can be dated back to 1787 when they established independence from Britain and their leaders had to decide how to govern themselves
but our constitution is significantly older and would require a very complicated process to codify, thus making it unnecessary especially since there are more pressing issues to tackle first

Question 15

judicial tyranny: how would a CC lead to judicial tyranny?

Answer 15

a disadvantage of having a codified constitution is that it can lead to judicial tyranny as judges would be interpreting it
this is largely because judges are not the best people to police the constitution, they are unelected, unaccountable and socially unrepresentative
arguably, it is dangerous to play such responsibility in the hands of unaccountable forces as judges may interpret the constitution so it is reflective of their preferences and values and the way that they do this would not be subject to proper scrutiny
a CC would put an unjustifiable degree of power in the hands of unelected and unaccountable judges who are often out of touch with public opinion

Question 16

judicial tyranny: example of the US

Answer 16

in some countries that have a codified constitution, like the US, the Supreme Court can declare acts of national parliament unconstitutional and strike them down
this gives immense powers to the 9 judges appointed for life by the president
as a result, they are often described as “politicians in robes” as the yield too much power and are not sufficiently separated from the political system

Question 17

judicial tyranny: what is the risk within a CC?

Answer 17

such unaccountability gives rise to the risk of the judiciary overstepping its role, trespassing on that of the executive and legislature, and abusing its power to interpret the law
these unaccountable forces would be making huge judgements which have wide political and social implications, which can be dangerous if they overstep their role and behave tyrannically

Question 18

judges are neutral and independent: why would judges interpreting a CC be an advantage rather than a disadvantage?

Answer 18

in reality, the senior judges of the Supreme Court would offer neutral interpretation of a CC rather than judicial tyranny
they would act to protect the constitution which would ensure that the provisions established within it are properly upheld by other public bodies
judges are in the best position to do this as they are free from political influence, they are neutral and impartial
judicial independence ensures that the judiciary is independent of the other two branches of the political system and can defend rights based only upon the law, without political pressure and outside influence
judges are also neutral and can therefore protect a person’s rights without discrimination or considerations of their beliefs, character or other traits, making them more effective at upholding individual rights

Question 19

judges are neutral and independent: why should judges have more power under a CC?

Answer 19

in an uncodified constitution, judicial review is limited as judges cannot strike down legislation but in a codified constitution they can carry out more effective work as they will have powers to make binding rulings
therefore, it is clear that a codified constitution has more advantages

Question 20

judges are neutral and independent: example of the judiciary upholding rights and neutrally interpreting the law

Answer 20

Gina Miller requested a judicial review on whether David Davis, Secretary of State for exiting the EU, had the prerogative powers to trigger Article 50 which would start the process of leaving the EU
the Supreme Court held that the government did not have such a prerogative power so had to seek parliamentary approval to trigger
Article 50
the Belmarsh case of 2004 in which 9 suspected terror suspects had been held for several years without a trail in Belmarsh prison under the Crime and Security Act 2001
they appealed against their detention and the SC ruled that the 2001 Act was incompatible with the ECHR and as a result, the government chose to heed the judges warning and release the prisoners