A constitution is a set of rules which may be written or unwritten, establishes the distribution of power in a political system, the limits of government jurisdiction, the rights of citizens and the method of amending the constitution itself. An uncodified constitution is unwritten, or at least not written all in one document. The constitution in the UK is found in a variety of sources, which are mainly statute and common law, conventions and traditions, European law etc. The British constitution itself is flexible as it allows the constitutions to evolve and generally adapt to the changing society. Compared to the US whose constitution is described as ‘rigid’; through the struggle of being able to amend constitutions; for example, the ‘right to bear arms’ amendment, which basically gives registered citizens the right to keep and bear arms. The topic of amending this constitution is very controversial, however due to the constitution being codified the process is very difficult, as is it entrenched and has been a part of the US culture for centuries.
In this essay, I will be analysing the strengths of the British constitution and comparing it to a codified constitution, Some of the arguments for retaining the uncodified system are that; codification produces ‘judicial tyranny’, uncodified constitutions are more flexible and lastly that an uncodified system has worked well in the UK for many years and broadly speaking not many people have protested against an uncodified system. On the other hand arguments against retaining an un-codified constitution are that; a codified constitution would clarify the nature for the political system to citizens, codified constitutions can better safeguard the citizen’s rights and lastly that introducing a codified system in the UK would bring the UK in line with most other modern democracies, especially with the European Union.
During 1997, the Labour party developed a series of manifesto’s stating constitutional reforms, which later on came into effect in 2005. They believed the British politics needed to be modernised and brought up to date. Labour also believed that the citizens lacked protections towards their human rights due to the uncodified constitution. Lastly, Labour argued the executive to have too much power, with a weak legislature to restrain this power. In 1997, Labour was successful as they won a landslide victory and created a majority government. Many may argue they were successful through the modernisation process, this is shown through the separation of powers.
Firstly the UK should retain its current un-codified constitution because codification can produce a ‘judicial tyranny’. Judicial tyranny means that judges have power of supreme arbiter over the constitution because they are able to judge what the constitution says. Members of the judiciary are also unelected which therefore means that they have no binding contract to the people to stand before them fairly and not to abuse the position that they have. This therefore means that the UK political system would no longer be as democratic as in the past.
If a codified constitution was introduced it would sifnificantly affect the power of government, the relationship between the executive and Parliament, multi level governance, the relationship between judges and politicians and finally individual rights and freedoms. One argument is that it would make a rules much more clear and key constitutional rules are collected together in one single binding document. This would mean that it would be more clearly defined then that of an unwritten/uncodified constitution.
However, one argument against the idea of a codified constitution is that they are considered ver rigid. Higher law is more difficult to change that statue law. It is easier to and quicker to introduce an act to Parliament then to amend a constitution. Uncodified constitutions are flexible, as they are not entrenched like codified constitutions. The flexibility of the British constitution is also shown through the constitutional reforms developed by Labour, which not only modernised by also is argued to have strengthened the British constitution. Due to this ability of being flexible and being able to change and adapt, the case for Britain retaining its constitution is in fact ‘extremely strong’. Due to the rigid, inflexible nature of a codified constitution it is difficult to keep up to date and remain relevant. Flexibility is a very important useful ability for a constitution to have in the modern ever-changing society.
On the other hand, codified constitution would protect the rights of citizens. Individual security would be more securely protected by a codified constitution, as it would define the relationship between the state and citizens. As a result of this rights would be more clearly defined and they would be easier to enforce that that of the current uncodified UK constitution. Also a codified UK constitution hold educational values as it highlights central values and overall goals of the political system. This would strengthen citizenship as it creates a clearer sense of political identity that may be particularly important in a multi cultural society.
Looking at both arguments there are strong cases for both views. Over all I think the UK should remain as an uncodified constitution as this means change can be bought to fit into a modern society, a codified constitution limits democracy in a country as under this constitution judges are unelected and social unrepresentative which would lead to a democratic deficit due to lack of democratic legitimacy. A codified constitution may also be interpreted in a way that is not subject to public accountability. It may also be interpreted due to preference and values of senior judges.