Evaluate the view that the UK’s constitution being codified would make it more democratic. Flashcards
1
Q
LoA
A
codification would be a negative
2
Q
para 1 - theme
A
entrenchment
3
Q
para 2 - theme
A
executive limitation
4
Q
para 3 - theme
A
judiciary
5
Q
para 1 - entrenchment
A
- A codified constitution would be less responsive and adaptable than an uncodified one. Since 1997, many constitutional reforms have been enacted to update the UK constitution. Major developments like the reform to the House of Lords and Devolution would not have occurred had their been a codified constitution
In comparison, the US constitution has had an entrenched bill of rights for centuries but it didn’t stop African Americans being lynched without any kind of trial entrenched constitutions do not guarantee people’s rights in practice. It has also protected the right to bear arms, which is incredibly controversial given the recent shooting in Texas.
6
Q
para 1 - however
A
- The major principles of the constitution would be entrenched, safeguarding them from interference by the government of the day. For example, key parts of the constitution like devolution and the HRA would be entrenched, meaning the government would not be able to remove them as they currently have the ability to
This could mean that individual liberty would be more securely protected. They would not feel like the government possesses the power to overrule as they currently do. For example, the current conservative government looks poised to replace the HRA with a Bill of Rights, showing the ease at which government can impede on rights
7
Q
para 1 - rebuttal
A
As America has shown, entrenchment does not ensure rights in actuality. In fact, unentrenchment is a benefit, as having a malleable constitution can allow for rights protection to develop overtime.
8
Q
para 2 - executive limitations
A
- Government power may be more effectively constrained by regular elections than by a constitutional document.
- As seen in the US, codification does not necessarily curb the power of the executive. The President has still been able to amass large amounts of power, For example, Obama negotiated the Iran deal with almost no Congressional input, despite some fierce opposition, especially from the Republicans in Congress.
Furthermore, the constitution requires that Congress declares war, and yet, the last time they did this was in WW2, showing that requirements of the constitution are not always fulfilled.
- As seen in the US, codification does not necessarily curb the power of the executive. The President has still been able to amass large amounts of power, For example, Obama negotiated the Iran deal with almost no Congressional input, despite some fierce opposition, especially from the Republicans in Congress.
9
Q
para 2 - however
A
- The power of the executive would be constrained by a rigid, codified document. Codification would provide a counter balance to the power of the executive, as shown in the US. It would ensure rigid checks and balances, as well as possible separation of powers which would ensure greater scrutiny of the executive.
Passing legislation would be a far more complicated process and would require compromise. Furthermore, major constitutional change would not be possible at the ease it currently is.
10
Q
para 2 - rebuttal
A
The fact is that in practice, a codified constitution does not effectively limit the power of the executive, and others method like regular elections would be more likely to be an effective way of holding the PM to account.
11
Q
para 3 - judiciary
A
- Judges are not the best people to regulate the constitution because they are unelected and socially unrepresentative. An uncodified constitution protects against the tyranny of the unelected judiciary.
- In the UK, Judges are demographically unrepresentative - ‘male, pale and stale’. In 2017, a quarter of judges in the Court of Appeal and a fifth of those in the High court were female. Therefore, in a codified constitution, unrepresentative judges would be given a large amount of power to decide on large amounts of legislation
Furthermore, judges are unaccountable and unelected, meaning that once again, they would gain large amounts of influence without the public having any influence. For example, in the US, the unelected supreme court has been able to overturn legislation from the elected branch like the DAPA in Texas vs US 2016
- In the UK, Judges are demographically unrepresentative - ‘male, pale and stale’. In 2017, a quarter of judges in the Court of Appeal and a fifth of those in the High court were female. Therefore, in a codified constitution, unrepresentative judges would be given a large amount of power to decide on large amounts of legislation
12
Q
para 3 - however
A
- In a codified system, independent judges are able to protect the constitution to ensure that its provision are upheld. In a codified constitution, the constitution is sovereign, meaning that the judiciary becomes effectively sovereign. This is in comparison to the UK, where due to the fact that parliament is sovereign, the Supreme Court has littler power.
- For example, in the UK, parliament does not have to listen to the Supreme Court’s declaration of incompatibility (although this has never happened).
In comparison, the US supreme court is able to be active in its upholding of rights, for example Brown v Board of Education 1954, and Roe v Wade 1973.
- For example, in the UK, parliament does not have to listen to the Supreme Court’s declaration of incompatibility (although this has never happened).
13
Q
para 3 - rebuttal
A
The fact is that codification would make the Supreme Court too powerful and would give it the power to overturn the elected branch.
