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The Case for a codified constitution - Coggle Diagram
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
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.
Parliamentary sovereignty is arguably threatened by unchecked executive powers that dominate Parliament- this would not be the case if there was a codified arrangement
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.