The Case for a codified constitution

A codified constitution is one found in a single document- it is single-sourced.

The UK has an uncodified constitution, meaning it is found is different areas such as:

  • Statute Laws
  • Customs
  • Conventions
  • Historical texts/principles
  • Common Law
  • Decisions made my judges

Entrenchment means that the constitution is difficult to change

Codifying the constitution will undermine parliamentary sovereignty and political structures

Parliamentary sovereignty is arguably threatened by unchecked executive powers that dominate Parliament- this would not be the case if there was a codified arrangement

  • This Parliamentary sovereignty was confirmed in the Miller One case ruled upon by the UK Supreme Court- justices said that only Parliament could trigger Article 50 (the intention the leave the EU).
  • A codfiied constitution would take away that certainity.

Rights would be better protected with a codified constitution:

  • Public Order Act 2023, which gave police extraordinary powers to arrest protestors, was rushed through Parliament in time for the King's coronation.

A codified constitution would establish rights for citizens:

  • It would be harder to pass the Policing Act 2022, which bans noisy protests
  • The Public Order Act prevents people from attending demonstrations.
  • The Elections Act 2022 made voting, a basic right, more difficult by mandating voters to carry ID, which disproportionately affected minority communities.

Entrenchment

The states in the United States have had reasonable gun restrictions struck down as a result of the entrenched 2nd amendment on the right to bear arms

  • Whereas, in the UK, they were able to act fast following the Dunblane massacre, and introduce restrictions on the sale of guns

Perhaps the US is not the best model to analyse an entrenched constitution because it is simply too entrenched. The UK could opt for a semi-entrenched system

A codified system would better entrench the flexibility of a federal system instead of allowing for a power drift back to Westminster, as is often seen during times of emergency.

An uncodified constitution allows a Government to govern

The 2019 GE gave the Conservatives a clear mandate to Get Brexit Done, restoring political certainity.

  • This is a quality that can only come as a result of a strong and stable government that can take decisive action.
  • This strong and stable government is only possible, say its supporters, with an uncodified constitution.

However, a strong government is not the same as a good one

  • The Prime Minister's Royal Prerogative, containing powers inherited from the monarch, needs to be defined and subject the proper oversight or checks.
  • Under the Royal Prerogative, the PM has sweeping powers, such as the right to call an election, which was restored to the PM in the 2022 Dissolution of Parliaments Act.
  • It is too easy for the PM with a strong majority to claim powers for themselves.

A politicised judiciary

  • The Miller One case and Miller Two case, are both examples of when the judiciary have had to act in the political arena.
  • No one wants the courts to stay in that arena, and therefore, arrangements should be kept the same.

However, courts cannot avoid the political arena, and why should they?

  • Judges must check to see if governments have acted beyond their powers.
  • In an uncodified arrangement, governments can simply but limit on the court's power to do its basic job, as it did in the Judicial Review and Courts Act 2022

Our recent politics is defined by PMs trying to stretch their powers, as seen when Theresa May claimed she had the authority to trigger Article 50, or when Boris Johnson suspended Parliament, owing to the unwritten power to prorogue.

A codified constitution would simply establish the limits of PM power, preventing them from taking unnecessary action.

But who would write the constitution?

  • All existing arrangements could be written down on one place, meaning executive power becomes entrenched, codifed, but not reduced.
  • Doing this would thus increase government power, the very thing a codified constitution was brought in to prevent.