Should the UK adopt a codified constitution?

One of the most hotly contested matters in UK politics is whether the UK should move to have a codified constitution. From pressure groups on one side of the argument and other people asking what purpose it would serve, and some more extreme campaigning to keep a codified constitution out of the public eye.

The United Kingdom’s so-called ‘constitution’ is a combination of many documents, and what is perceived as common law – a law that isn’t statute, but is generally accepted as practice due to the length of time the ruling has been followed. This wouldn’t be allowed to happen in a constitution, as common law’s interpretation is as up to the individual enforcing it, as much as it is to the next person. Constitutions detail out what should happen when there is no law to cover specific situations, such as judges being accountable for the actions. The many documents that make the ‘constitution’ date back to 1215, and a few other documents detailing the power of parliament, and removing power from the monarch. This, unfortunately, doesn’t tell the government how things should be done, and as such has led to very important governmental documents being left to be written in statute law – such as the fixed-term parliament act of 2011 – or just being ‘general practice or policy.’ Most constitutional changes in foreign countries require a 2/3 majority, but as there is no constitution, very large changes can be made by the largest party with a simple 50% majority vote.

A constitution would also install safeguarding into this country. This means the government would be told what they can and can’t-do, and it would be written down in black & white and therefore not up to be debated like common law is. It would also require a mass agreement to change any of the rules. Having a lack of this safeguarding means there is a higher potential of a large party agreeing. For example, if the conservatives wanted to pass through a change to constitution in the current situation, they would only need their MPs and the DUP MPs, to agree and then the law would be written to statute law – with some limitations such as monarch approval and the house of lords, but both of these powers are limited either by general practice or statue law in Parliament Reform acts. In a constitution, it would be more than likely to require the 2/3 majority to change any constitutional document.

Power to the people is a phrase thrown around a lot with constitutions, but in some cases that is quite literally what happens. One example of this is freedom of speech. In the UK we have laws to protect our freedom of speech, but they’re not inclusive and can cause problems when comparing what is freedom of speech, and what is just offensive. The US has the First Amendment, which gives them freedom of speech and is always referred to when a court is looking at a case of potential hate crime. This also makes it easy for Americans to know what they can and can’t say. It also gives them reassurance that this freedom can’t be easily taken away from them because of the lengthy requirements to change the US’ constitution.

Although, an uncodified constitution like the UK’s is quite an attractive option considering how fluid or adaptable the constitution can be particularly in effect to the modern era. Although the lack of change in constitutions can be useful especially when protecting from extremist views, or even those trying to work against the people of a country – this can have the opposite effect. For example, the US’ constitution really doesn’t have answers for modern issues such as same-sex marriage, and the constitution was up for discussion in 2015 when the Supreme Court passed legislation, based on states banning the marriage is unconstitutional. Although, this was vastly debated. When it came to the UK’s decision on same-sex marriage, there was no constitution to refer to, or to check whether its in-line with expectations – It was purely down to normal debate, and usual procedure in voting for the motion. Entrenchment is another reason for lack of fluidity. Entrenchment means due to the nature of that part of the constitution its either very difficult or near impossible to change it, meaning its relevance can vary because it can’t be updated. Therefore the uncodified nature of the UK’s constitution was more appropriate when discussing modern issues.

Many people see parliamentary sovereignty as key to how the UK runs. This principle says parliament can make, remove or change any law it wishes as long as the rule of majority is followed. This is unlikely to happen in a constitution because of the high chance of a bill of rights to be introduced, which then limits parliament. This is because the constitution would be seen as a part of higher law. Therefore, the constitution would undermine one of the key principles in which the UK is run, and which is the backbone to how the Westminster model works. People would then have less trust in parliament because they would be unable to change law that is affecting citizens – and in some circumstances, this could leave the citizens in more danger than they were before.

There is a good chance that the constitution would mean the accountability of lawmakers and parliament would be lost. In the UK, supreme authority is vested in the elected house of parliament and there for change happens due to democratic pressure. Currently, MPs are kept accountable by the public, especially if no law already exists. This can happen in many forms, mainly in elections, but also by contacting their representative. In most constitutions, it is up to judges in courts to police the constitution and to keep the government responsible for what they do. Some see this as undemocratic because the judges are rarely elected, and are paid for what they do. The constitution is also up to interpretation of the judge, and their own personal bias may change. They also don’t show a range of socioeconomic profiles, and as such don’t represent a large range of views.

 

Aidan