UK Government - Should the British Constitution be codified?

Question 1

What is the basis behind this discussion?

Answer 1

• There has been discussion over the years about whether or not there should be a complete overhaul of the British Constitution.
• Reformers suggest that a codified constitution would help to modernise it.
• In times of political crisis there have been renewed calls for such a change.
• For example during the protracted struggle over Brexit between 2017 and 2019 parliament and the government seemed incapable of finding a way forward despite the various options of a second referendum, a Brexit deal, a no-deal Brexit or calling another election.
• In the end the December 2019 election returned a Conservative government with a strong majority and Brexit was achieved, in principle if not in detail
• Suggested reforms between 2010-2015 are based around a similar division o power to that of the US with retainment of some British principles and a similar Bill of Rights to the existing HRA

Question 2

Arguments for codification - a summary

Answer 2

• Provides clear rules, with less confusion as to what constitution means - a problem with conventions, as constitutional expert Vernon Bogdanor remarked, is that ‘The understandings are not always understood.’
• It would formally limit the powers of government addressing the problem of elective dictatorship
• It could be policed and protected by judges, who are politically independent and neutral
• It would allow for a stronger protection of rights due to entrenchment
• Would strengthen citizenship and provide unity
• Would bring the UK into line with other modern democracies - the UK is one of only three countries brackets (the others Israel and New Zealand) not to have a codified constitution
• Would prevent the powers of the executive being conducted without parliamentary approval that are currently involved in the royal prerogative
• In Britain, the executive controls Parliament through the party system and legislation, which cannot be questioned by the courts, can be passed by a majority of one
• Removing the vagueness of custom and tradition would represent a desirable modernisation of the political process.
• It would provide further and more easily understood rights for all citizens, as the Constitution could entrench key rights as opposed to leaving them to the mercy of Parliament.
• It could reduce the concentration of power in the hands of the executive.
• It would enable local government and the regional assemblies outside England to enjoy proper constitutional protection and permanence.
• Conventions can and are broken, for example with the Lords and the 1909 Budget, or when Boris Johnson sought to prorogue (suspend) Parliament for 5-weeks in 2019. Only a unanimous ruling by the Supreme Court stopped this attempt. By convention, prorogation lasts for a much shorter period.

Question 3

Arguments against codification - a summary

Answer 3

• It would be too difficult to change and may become outdated - Parliament would struggle to come to a consensus on much of the content of a codified constitution e.g. deciding a voting system
• It would give unelected judges to power to prevent elected government from carrying out their pledges - they would be required to make rulings on what Acts or measures were constitutional, much as they do in the USA. It would also in all likelihood considerably politicise the judiciary
• Uncodified constitutions are organic and naturally evolving, whereas codified constitutions are more legalistic and arbitrarily implemented
• A codified constitution is unnecessary - government power could be checked by strengthening existing systems
• It may be harder for a government to get things done and fulfil its manifesto promise
• It is incredibly effective as a living and flexible constitution - The current constitution encourages flexibility and adaptability, e.g. in regard to the cooling of early elections; codified constitutions are by nature far more rigid
• Codification would go against the tradition of UK politics, which is one of constitutional evolution and not revolution.
• The issue of education and awareness about the British Constitution is best met by better political education in schools.
• There is a marked lack of popular demand for such a reform. The alternative vote referendum of 2011 is a case in point.
• It would seriously undermine parliamentary sovereignty, which has served the country’s politics well over the centuries. Philip Johnstone, writing in The Daily Telegraph in January 2020 after the Brexit bill was passed, commented that ‘It turns out our system wasn’t broken after all’
• It would end the process of piecemeal codification such as the Cabinet Manual and the Osmotherly Rules

Question 4

Why is the UK constitution’s flexibility sometimes a negative? (FC)

Answer 4

• Parliament shouldn’t be able to make major constitutional reform with a simple act of Parliament
• Amendment only needs a act of Parliament, and not even the House of Lords can prevent the Commons from making a fundamental constitutional reform; there is no check on the reform being made, and not all changes are significant and effective long term
• Founding fathers made the Constitution intentionally difficult to amend, and this was to prevent tyrannical change or whimsical legislation.
• Current convention - major changes result in a referendum; however, after the EU referendum, future governments may be more wary of referendums for the effect it had on David Cameron, and their main focus is reelection
• In emergencies, Parliament can also be pressured by majority opinion into pasing dubious laws that infringe the rights of minorities, such as the Anti-Terrorism, Crime and Security Act (2001) that affected Habeus Corpus and was declared incompatible with human rights - introduced after 9/11, and the flexibility of the constitution meant that the law is no longer effective legislation
• A flexible constitution is a disadvantage in times of instability and fear, as spur of the moment legislation can have bad effects on long standing constitutional foundations and principles of convention

Question 5

What are the advantages of a more rigid constitution? (FC)

Answer 5

• This would establish stronger checks and balances and a stronger separation of powers - the government currently dominates parliament, and so there is an ‘elected dictatorship’
• As elections can now be won by a small majority, the government can now enforce policy, many people would disagree with this policy
• Majorities are getting weaker, and so amendments do not represent the majority of public opinion
• The constitution gives too much sovereignty to the executive branch and the House of Commons, and so proposals will likely not be defeated
• Entrenches rights and powers, making it harder to enforce whimsical laws

Question 6

What are the issues of a rigid constitution? (AC)

Answer 6

• The country with a codified constitution cannot update their laws to reflect society
• Legislature is limited by outdated laws

Question 7

Why can flexibility be an important asset? (AC)

Answer 7

• However, the rigidity of the US Constitution makes it too difficult to change and there have only be 17 amendments since 1791, but the world has changed significantly since then - they are bound by a 200 year old Constitution
  Comparison - gun laws following The Dunblane Massacre (1996) and contrasting attempts following the Sandy Hook Elementary School Shooting (2012)
• The flexibility of the Constitution also is good for social transformation (Aneurin Bevan, 1952)

Question 8

Why did Lord Hailsham describe the UK as having an ‘elective dictatorship’? (FC)

Answer 8

• The government is able to dominate parliament as they have full constitutional and amendment power, and so those elected, as long as they have a majority, can pass whatever laws they like in theory

Question 9

What are the problems with having a weak separation of powers? (FC)

Answer 9

• There are no checks and balances that can guarantee that one branch has extreme power, and the fusion of the legislative and executive branch means that the PM and their cabinet have all the power to make any changes to the constitution as long as they have a clear majority in parliament and Commons
• Easier to make amendments unopposed, government dominates parliament as there is no veto and assent is a convention

Question 10

Why can strong checks and balances lead to ‘gridlock’? What is the problem with this? (AC)

Answer 10

• If there is disagreement, political constraints means that nothing will get down sometimes - each branch blocks the other, such as when the President vetoes a Congress bill, and the Congress blocks an executive order, and majority displacement can mean that bipartisanship prevents things getting done - so government runs more smoothly in the UK without this

Question 11

Why can it be argued that the political limits on executive power in the UK are as effective as constitutional limits? (AC)

Answer 11

• We rely on political not legal constraints, and the official opposition limit the use of considerable power
• The backbench MPs can defeat the government if they stray from their manifesto
• Increasingly independent select committees scrutinise and criticise the government
• Governments are consistently defeated y the Upper House and COmmons does not always overturn these
  PM Cameron likely did not want to hold a referendum, but political pressure forces his hand
• Governments make great effort to ensure bills comply with the HRA and declaration of incompatibility are hard to ignore
• These are effective limits on constitutional reform that also allow flexibility for change as well. Statutes can also limit the executive without the need for a codified constitution, such as the FTPA 2011, and despite the lack of codified law, the judiciary has established entrenched, fundamental constitutional ‘statutes’ and the flexibility of the constitution has allowed it to evolve and allowed it to regulate itself, and this evolution is an asset.

Question 12

Why is it arguably a problem that the UK relies so heavily upon conventions? (FC)

Answer 12

• This can be misunderstood by the public and even elected officials
• Many argue that we should not rely on intangible convention, and ‘the understandings are not alway understood’ (Sidney Low, The Governance of England (1904)) and so the conventions are dangerous for the misconstruing of important rights and procedures
  Without a definitive written source, conventions can be hard to understand
• There is also a risk of political breakdown if consensus broke down on other fundamental conventions

Question 13

What is an example of where disagreement over conventions has caused controversy? (FC)

Answer 13

• Had to vote on significant cuts to existing tax credits in October 2015, and the convention of Salisbury stated that the Lords should not block bills included in the government’s manifesto, and the Financial privilege, in that the HoL cannot oppose Commons on issues of public spending
• The HoL voted to delay the cuts, claiming the convention did not apply as the specific cuts were not tax credits, and that financial privilege did not apply as the tax credits being introduced were introduced by secondary legislation, which they can block
• A lack of definitive authority meant that Commons could do nothing legally to oppose this

Question 14

What is meant by the claim that codified constitutions can politicise the judiciary? (AC)

Answer 14

• Judges would have considerable power, determining what is or is not constitutional, and codified constitutions can be very vague, with interpretation being an issue which the court has to provide
• The British Supreme Court, BSC, would have to do the same, which is an issue as the judiciary cannot be held accountable by the electorate and do not have compromise from a range of public opinion and the clear cut nature of decision is not applicable to the complex issue of human rights, parliamentary process and convention in society
• Relying on judges to make policy decision deprives us of living in harmony, as politics is a method of mediation that judicial supremacy would lose

Question 15

What are the benefits of the existing relationship between UK judges and elected officials? (AC)

Answer 15

• Laws such as the 1967 Abortion Act cannot be disputed, and the independence of the judiciary makes unpopular decisions that uphold rights, creating a clear discussion and line of dialogue, and some argue that the supremacy of the government means that elected officials have the final say, but the court is able to check them and put pressure on them to not just follow public pressure
• Conventions are also rarely broken despite not being legally enforced and so codification is not necessary

Question 16

What problems arise from the fact that the UK constitution was not deliberately designed in one go? (FC)

Answer 16

• Reform since 1997 has created challenge to historical constitutional policy, and the making of the constitution along the way creates a fragmented constitution that needs a codification to confirm all the necessary changes, and regulates the foundational changes made since 1997
• HoL reform, devolution, retaining a monarchy etc
• Parliamentary sovereignty has been challenged, political institutions have changed, human rights must be protected, increased separation of powers conflicts with the old constitution
• R Jackson v Attorney General - there is no parliamentary sovereignty, and this can be reestablished with codification and the settlement would have great legitimacy if created with the authority of the people, and make it easier to understand
• Lord Steyn - even parliament cannot abolish constitutional powers such as judicial review

Question 17

Why is it a problem that there is considerable disagreement over core constitutional principles? (FC)

Answer 17

• This can result in issues with human rights cases and the way in political processes occur, causing dispute, gridlock and aggression in Parliament when trying to agree core processes - also, if a dispute is settled, it can consistently recur without the presence of a written and codified decision
• If we cannot make a decision on fundamental decision of power, then a codified constitution to act as a guide or instruction for the future of UK parliamentary structure, function and power is the best option

Question 18

What problems would likely arise when attempting to draft a new codified constitution? (AC)

Answer 18

• Drafting a new constitution could be very challenging, as writing the unwritten could lead to a break in convention and issues with the flexible reform
• It would be hard to agree on disputed conventions or vaguely defined principles like ‘rule of law’
• Also, constitutions are normally drafted following a revolutionary moment in a nation’s history as a decisive break from the past (e.g. American constitution came in after they gained independence) and until the UK has a moment like this, such as Scottish independence, it may not be worth throwing away our current constitution and create conflict that is yet to exist
• Maybe the lack of such a codifying event is evidence to the strength of the flexibility of the constitution - its ability to evolve with society has prevented political conflict and polarisation
• It may be unrealistic that we can agree on a codified constitution, as even reforms such as the House of Lords Act have not reached their second stage due to dispute - a lack of consensus could place constitutional jeopardy on the UK
• The range of conventions and the different interpretations of them could be detrimental to agreeing what form they should take as a codified constitution
  Recent constitutional conflicts such as Brexit and Scottish independence have created significant divides - it may be easier to tackle constitutional issues one at a time with acts of parliament rather than an entire new constitution - it would change political processes that have been in place for centuries

Question 19

In what ways has the UK constitution already become more codified and easier to learn about? (AC)

Answer 19

• Our flexible constitution has also been incredibly effective thus far - there is argued that there is no need for fundamental constitutional change, and the reforms since 1997 have only been possible because of its flexibility
• The ‘new constitution’ - has created significant political limitations on parliamentary sovereignty, has determined the rule of law abide by human rights, devolution has created a quasi-federalist state, there is increased separation and there have been increasing statutory limits
• The Cabinet Manual - outlines most important constitutional conventions
• The Human Rights Act (1998) - codifies a number of fundamental human rights
• Many previously vague prerogative powers are now defined and limited by statutes
• The Ministerial Code and Civil Service Code outline responsibilities and procedures for ministers and the ethics of the Civil Service

Question 20

Lord Halisham

Answer 20

Lord Halisham’s Dimbleby Lecture - 1976:
- Stated that it is ‘surely due to the unique combination of flexibility and authority that for more than 300 years, we have managed to live together as a nation in periods of constant change without the experience of violent revolution or civil war’