ETVT uk constitution should be codified and entrenched Flashcards
structure
1.is constitution too easy to change
2.does it offer sufficient sufficient protections for democracy
3. would codification and entrenchment better protect HR
LOA
no
examples
1.for too easy to change ?
Current constitution is too easy to change:
Any statute, even with constitutional significance, can be amended or repealed by simple majority.
Risk of short-term political motivations shaping long-term constitutional changes.
Example – Fixed-term Parliaments Act 2011:
Introduced for coalition stability, but limited a government’s ability to call elections.
Later repealed, showing ease of change.
Codification and entrenchment would protect the constitution:
Prevents executive overreach and ensures proper debate on constitutional issues.
Could require supermajorities or referendums for constitutional reform.
Brexit example:
Major constitutional change (leaving the EU) based on an advisory referendum with less than 50% of the electorate backing it.
Entrenchment could have required wider consensus.
- against easy to change
Flexibility allows the UK constitution to adapt and evolve with changing needs.
Major reforms (e.g. Human Rights Act, Supreme Court creation) were achieved without codification.
Codification risks freezing power in outdated forms, limiting reform.
US example: Entrenched 2nd Amendment blocks gun control despite modern issues.
Codification would be complex, time-consuming, and politically divisive.
- for protections for democracy
Codification could better check the executive, increasing accountability and separation of powers.
Could lead to clearer powers for branches (e.g. elected Lords, parliamentary vetoes, stronger role for the Supreme Court).
Judges could strike down unconstitutional laws, improving fairness and safeguarding rights.
Prevents abuse by authoritarian governments—currently, key rights (e.g. voting laws) can be changed with a simple majority.
Example: Elections Act 2022 restricted voting access, possibly for party advantage.
Unwritten conventions are weak and can be ignored—e.g. Johnson’s 2019 prorogation defied norms to avoid scrutiny.
- against democracy
Uncodified constitution offers sufficient protections for democracy through conventions and the Supreme Court’s judicial review.
Example: 2019 prorogation case—government acted ultra vires and was forced to reverse its decision.
Checks and balances could hinder governance—codification may slow decision-making, particularly in emergencies.
Example: COVID-19 measures—uncodified constitution allowed swift government response, despite impinging on rights.
Flexibility of uncodified constitution allows for effective adaptation (e.g., 2010 coalition government).
Strong governments can deliver their agenda more effectively under an uncodified system, unlike codified ones (e.g., US struggles with climate change laws).
Weaker governments face greater scrutiny—Parliament can better challenge smaller, less popular governments.
- for HR
Better protection of human rights: A codified and entrenched British Bill of Rights would prevent rights from being easily infringed by the government.
Current Human Rights Act limitations: Parliamentary sovereignty allows laws to be changed by a simple majority, and the HRA could be repealed.
Recent examples: The Illegal Migration Bill (2023) and Safety of Rwanda Act (2024) threaten rights and allow the government to override rulings from the European Court of Human Rights.
Prevents government overreach: An entrenched Bill of Rights would make it harder for the government to weaken or remove rights protections.
Citizens’ understanding and attachment: A codified Bill of Rights would increase public awareness and attachment to their rights.
- against HR
Excessive judicial power: A codified constitution could increase the power of unelected judges, who may be seen as unaccountable and unrepresentative, making political decisions about rights.
Parliamentary accountability: It’s argued that Parliament should address rights issues, as it is directly accountable to the people.
Current Human Rights Act effectiveness: The HRA already provides a strong framework, ensuring all new legislation is compliant and that public authorities follow it.
Parliament’s role: Parliament, often with the House of Lords, takes action when human rights issues arise, such as when the Prevention of Terrorism Act 2005 was amended after the HRA declared it incompatible with human rights.
Education and scrutiny: The HRA has raised awareness of rights, and Parliamentary scrutiny ensures that laws comply with human rights standards.
