A major issue in the United Kingdom legal system is the lack of a written constitution. Many people believe that a written constitution would provide greater accountability and democracy. However, other people believe that the traditional unwritten British constitution would provide greater protection. The fact that we have pressure groups and associations such as Charter88, who are campaigning for a written constitution, show that this concept is very controversial.
A constitution is a set of rules that seek to establish the duties, powers and functions of the various institutions of government: regulate the relationship between and among the institutions: and define the relationship between the state and the individual. There are many different types of constitution. Constitution can be codified or uncodified, unitary or federal and seen as rigid or flexible. The most common way of comparing classifying constitution is codified or uncodified. The UK is an example of an uncodified constitution whereas the USA is an example of codified constitution.
This essay will show that UK should not adopt a codified constitution. A codified constitution is a constitution in which key constitutional provisions are collected within a single document, it is commonly known as written constitution. Codified constitutions have three key features. In a codified constitution the document is authoritative in the sense that is constitutes higher law. The constitution blinds all political institutions. The codified constitutions are entrenched. This means that they are difficult to amend or abolish.
As a codified constitution, it sets out the duties, powers and functions of government institutions in terms of ‘higher law’ and it is judiciable. The other type is an uncodified Constitution. An uncodified constitution is a constitution that is made up of rules that are found in a variety of sources, in the absence of a single legal document or written constitution, Unlike constitution is not authoritative. Constitution enjoy the same status as ordinary law, uncodified constitution are also not entrenched. The constitution can be changed through normal processes for enacting statute law.
Finally , uncodified constitutions are not judiciable. ave the standards In the absence of higher law, judges do not have the standard aginst which they can delcare the actions of other bodies are considered as unconstitutional. There are many arguments that feel that UK should have a codified constitution. If a codified constitution was introduced it would significantly affect the power of government, the relationship between the executive and the parliament, relationship between judges and politician and individual rights and freedoms.
One benefit is that a codified constitution would make rules clearer. Key rules are collected in a single document. They are more clearly defined than an unwritten constitution whre rles are spread across many different documents. A codified constitution would create less confusion and the meaning of constitutional rules and greater certainly for enforcement. A second argument is limited government. A codified constitution would cut government down to sizes. A codified constitution would end the principle of parliamentary sovereignty and subsequently elective dictatorship.
Elective dictatorship is a constitutional imbalance in which the executive power is checked only by the need for governments to win elections. In UK, as long as the government is in control of the house of common, it can act in any way it pleases. A codified constitution would also allow for neytral interpretation. A codified constitution would be upheld by judges. They can strike down any acts of the government if it is unconstitutional. A codified constitution highlights the central value and overall goals of the political system.
This would strengthen citizenship as it creates a clearer sense of political identity. The strongest argument of a codified constitution is that it protect rights. Individual liberty would be more securely protected by a codified constitution because it would define the relationship between state and citizens. As a result , right si are more clearly defined and would be easier to enforce. On the other ahnd there are many argument against the idea of a codified constitution. One argument is that codified constitution are considered rigid.
It is more difficult to cange than statue law. It is easier and faster to introduce an Act of Parliament than to amend the constitution. Due to the rigid and inflexible nature, it is difficult for the constitution to remain relevant and up-to-date. Codified cannot be changed easily and therefore find it difficult to respond to changing political and social circumstances, Flexibility is very important, especially in the modern evr changing environment. Another argumnt is judicial tyranny and democratic rule in UK.
The long period of unbroken democratic rule is often seen as a strength of the uncodified constitution system. In UK, supreme constitutional authority us vested in the elected House of Commons. Changes to the constitution therefore come about due to democratic pressure. For eg, the powers of the House of Lords were reduced through both Parliament Acts of 1911 and 1948 because of a growing belief that an unelected second chambershould nonger have the right yo block legislation of the elected government. Under a coldfied constitution, judge wold be the people policing the constitution.
Judges are unelected and social unrepresentative which would lead to a democratic deficit due to a lack of democratic legitimacy. A colified constitution would be interpreted in a way that is not subject to public accountability. It may also be interpretation due to the preferences and values of senior judges. Another argument is parliamentary sovereignty would be effectively abolished. The principle of parliament sovereignty states that parliament can make, unmake or amend any law it wished. A codified constitution which is a form of higher law will undermine the parliament to make law.
In this way, codified constitution would undermine one of the key principles in UK’s representative democracy Looking at both argument, there are strong cases for both views on whether UK should hae a codified constitution. This essay says that UK should not adopt a codified constitution, This is for many reasons including inflexibility, judicial tyranny and parliament sovereignty. The most important reason is inflexible. Codified constitutions are entrenched law. and higher law rules over statue law. In UK, statue law can be changed by Act of Parliament.
With codified constitution, it is much harder to change laws and therefore constitution can become outdated with a rapidly changing, modern society. However, supporters of codified constitution it is not too difficult to change law as it is down to interpretation of the laws, there have been cases in USA where codified constitution has been interpreted to fit in with modern society. Despite this, uncodified constitution are still ore flexible and easier to change. One main argument for a written constitution is that it provides clear rules that limits the powers of the government.
There is checks and balances due to better separation of powers. Eg in USA, The president who is the Executive is chosen by the people by votes in a poll separately from the members in the Congress who is the Legislature. The judge due to the presence of hiher law can strike down acts by the present or the congress if it is constitutional therefore avioding abuse of powers by the government/ Even though, unwritten constitution can face problems such as elective dictatorship, this problem is greatly reduced in recent times as UK has passes on acts which accept European Laws and Human Rights Conventions.
If citizens of UK that they are unfairly treated and it is in breach of the EU laws, they can appealed to The Europrean courts for justice to be done. All this has scrutinized the powers of the governemt and therefore making adopting a written constitution unnecessary, In conclusion, Uk should not adopt a written constitution because it is rigid and hard to change. This is a major disadvantages for a fast moving environment we have today and furthermore it is not really necessary because of EU laws.