Should the UK have a codified Constitution? (40 marks)

A constitution is the fundamental and entrenched rules governing the conduct of an organization or nation state, and it establishes it concept, character and structure. It lays out how a nation is to be run and who runs it. It sets out how government is elected and the powers of the state. It usually is occupied by a Bill of Rights, which is a document that lays out the individual rights of the people of that nation. A constitution cannot be removed as it has been entrenched in the foundations of that country. It can only be altered but as it can be seen in America, this is extremely difficult to do.

Within the UK, we currently do not have a codified/ written constitution but has unwritten constitution. This means that our constitution isn’t written down in a single document but is made up of several documents, Acts of Parliament, laws, judicial precedent and traditions. Furthermore, the UK doesn’t have a Bill of Rights but has its rights highlighted under the Human Rights Act 1998, which highlights all the individuals rights. Under the Labour government, there was massive constitutional reforms between the periods of 1997 and 2010 and brought about a greater codification of the British constitution. The Conservative and Liberal Democrat coalitions introduced further constitutional reforms. In this essay I will highlight the argument that the constitution shouldn’t be codified but also that why there are advantages to a codified constitution.

One of the main strengths of the UKs uncodified constitution is that it’s easy to change and alter as to allow it to develop over the time. One of the biggest issues currently with the government is voter apathy and a lack of interest in Parliamentary proceedings due to one of the ideas that it is stuck in its ways and that it doesn’t represent the modern times. If there is an issue with an old Act of law, it can be easily changed through the passing of an Act of Parliament or simply through judicial precedent. This allows the government and Parliament to ensure that all political matters are kept up to date. This would be extremely difficult if the constitution was entrenched as in America, it was deliberately made difficult to change, which means that if the UK was to have a written constitution, it would also be difficult to change as to ensure that the state cannot remove rights without the consent of the people. Outdates rights would become a major issue such as the right to bear arms, which has cause thousands of deaths within the USA. An unwritten constitution would also allow rights to be added over time such as social and economic rights, for example, the rights to healthcare or the right to an education; all of which aren’t currently rights we don’t have.

An unwritten constitution has proven to be adaptable and has allowed for devolution to occur. In 1998, the Scotland Act was passed, which allowed the creation of the Scottish Parliament at Holyrood. The idea of devolution is one of the major key factors that lead to Scotland remaining within the union, which was all possible due to the unwritten constitution allowing more devolved powers being brought to Scotland such as the right to set their own income tax. Furthermore, the UK has incorporated judicial decisions (common law), conventions and works of authority into its constitution framework. This allows the constitution to remain up to date with matters that affect society at the time and allows for pressure from the people to be registered on the national stage. It allows issues and rights to be added over time, thus remain up to date with the times.

A codified constitution gives to much power to judges, as they are upholders of the law. If the government were to impose a codified constitution, it would mean that rights had to be upheld, which is the job of the judges of the state. If Parliament were to pass an Act that conflicted with the constitution, then judges would have the ability to strike down the law and impose a judicial precedent (judge made law). This isn’t democratic as people who weren’t elected are making the laws and this also undermines the idea of the rule of law and that Parliament is supreme. This would subject the UK to the ideas set forth of the judiciary, which has to be kept separate from the government. This means that the law is subjective to the interpretation of judge and they wont always uphold the law set down by our elected law makes.

On the other hand, there are advantages to a codified constitution for the UK. It would add clarity to the law and ensure that the constitution is clear and accessible to all members of the public. It reduces ambiguity and highlights all rights and processes that should be taken by all governing bodies as to comply with the constitution. It would furthermore, reduce the powers of the state, as it would set out all the rights that the individual can exercise. In most dictatorships, the constitution is removed as to allow supreme power to the governing body and allows the regime to remove rights wherever possible. An example of this would be in Nazi Germany were Hitler removed the rights of the German people and allowed the state to imprison people without charge or evidence.

A codified constitution would furthermore allow judicial interpretation and ensure that the Supreme Court is able to uphold our rights set forth in the constitution. With the current system, judges are unable to strike down laws that violate our human rights, but under a codified and written constitution, they would be the protectors of the law and ensure that every Act has to comply with the constitution. It would furthermore uphold our human rights. It isn’t clear if we would get a Bill of Rights to accompany the constitution of if the Human Rights Act would be simply entrenched into UK law but it would mean that the state wouldn’t be able to remove our rights, something which they have been able to do in the past. This can be seen in the Terrorism Act 2003, which saw the removal of a persons right removed due to the clause which allowed police to hold suspected terrorists for 90 days. Although this was challenged by the house of Lords, it has been reduced but still has allowed for an extended period of time to ensure that the police have gained the evidence they require.

A written constitution would allow limits to be placed on the government as to ensure that they can be held accountable and the people have the final say in all political matters. This can be related to the invasion of Iraq in 2003 when even though there was massive protest, Blair with the support of his cabinet ministers issued a state of war between the UK and Iraq. This however has been removed due to the passing of an Act which ensures that all potential moves to wards war have to be firstly debated in Parliament; this can be seen in the failed attempt by Cameron to begin air strikes against Syria in 2014. A codified constitution would ensure that government is answerable always to the people and would place checks and balances on government as to prevent an elected dictatorship.

In conclusion, I believe that the constitution should remain in its current state as it allows it to be updated and develop with societies needs. This ensures that it always protects the people of the state as well as our rights. We can see that government have moved towards more constitutional actions and follow it, even though it isn’t legally binding. On the other hand, it would allow the people to have more command over the political system but this would then move the UK to a more direct democracy, which then threatens would current political system