Evaluate the arguments in favour of the codification of the UK constitution. Flashcards
P1. Agree: Provides a stronger protection of human rights.
- The Human Rights Act (1998) has raised the general awareness that rights exist and the specific understanding of some rights- like the right to family life. It has given UK citizens a clear and concise list of rights, which can be defended in UK courts.
- However, these rights are not fundamental law, and the UK Supreme Court cannot strike down any laws that undermine them.
- The Illegal Migration Bill, for example, was introduced by Home Secretary Suella Braverman on 7th March 2023 with a section 19 note stating that there was a likelihood the provisions of the bill would be incompatible with the Human Rights Act and international law, but that the government wanted to proceed with it nonetheless.
- An entrenched Bill of Rights would also prevent governments from overturning rights legislation in order to remove rights, as the Conservative Party has often been criticised for attempting to do in their proposals to replace the Human Rights Act with an unentrenched British Bill of Rights
P1. Disagree: a codified constitution would simply increase the power of the unelected
- An entrenched Bill of Rights would simply increase the power of unelected, unaccountable and unrepresentative judges to police the constitution and make difficult decisions about how rights should be applied, dragging them into political matters and granting them too much political power
- It is arguably better if Parliament resolves such issues and is accountable to the people, as is currently the case.
- Further, it can be argued that the Human Rights Act in fact currently provides a robust framework for protecting the rights of British citizens. Since the HRA, it is often claimed that the UK has developed a ‘rights-based culture’ as all new legislation must be compliant with the act and judges can declare earlier acts of parliament incompatible with it, whilst public authorities in the UK are under an obligation to abide by it.
P2. Agree: Far more clear than an unwritten constitution
- We are overly reliant on unwritten conventions that are not legally enforceable and that few understand. The Government broke conventions when it prorogued Parliament in 2019 and when it threatened to amend the Brexit agreement and break international law.
- Conventions are not legally enforceable. The Scotland Act (2016) formally recognised the existence of the Sewel Convention - the rule that the UK Parliament will not normally legislate on devolved matters without first seeking the consent of the Scottish Parliament.
- However, the Supreme Court ruled in 2017 that it could not enforce this convention, after the Scottish Government argued that a legislative consent motion was required before the UK Government could begin the process of withdrawing the UK from the EU.
P2. Disagree: It allows for a strong government, it is flexible
- The US codified constitution has only been amended 27 times since 1787. In contrast, the UK constitution has evolved throughout history, and, due to Parliamentary sovereignty, continues to be regularly amended, to meet the changing expectations of citizens. Since 1997 there have been a wide range of significant constitutional reforms made in response to public pressure, including the devolution of power to Scotland, Wales and Northern Ireland, and the UK’s pending withdrawal from the EU.
- Our uncodified constitution also gives Parliament the flexibility to respond to crises, without being limited by higher constitutional laws. Parliament reacted to the 1996 Dunblane School shooting by swiftly banning the majority of handguns in England, Scotland and Wales, as supported by a majority of the public.
- As society continues to change at a rapid pace, a codified constitution could soon become out of date.
P3. Disagree: Changing to a written constitution would be a difficult process
It may be impossible simply because there is no political consensus (agreement) on what it would look like. Writing a new constitution can be a torturous process even for ‘new ‘nations-one with deep seated traditions of class and ideological politics would find it impossible.
Would the new constitution ensure limited government - a conservative principle or the rights of citizens to social services and free health care - a labour principle. And both dominant parties would hesitate to embrace any change which allowed their position to be challenged such as electoral reform. Note how Labour lost interest in PR when it was in power.
