Eleanor Finch
The UK's uncodified constitution has evolved throughout history, adapting to meet the changing expectations of its citizens. However, some argue that a codified constitution would improve understanding and public awareness of the constitution, and place necessary checks and balances on the government. While a written constitution may provide greater clarity and protection of civil liberties, it could also limit the government's ability to act decisively and adapt to changing circumstances. With little support from politicians, the debate around codifying the UK's constitution remains primarily academic.
| Characteristics | Values |
|---|---|
| Improved understanding and public awareness | A codified constitution would improve understanding and public awareness of the constitution in the UK. |
| Checks and balances | A codified constitution would ensure that written checks and balances would be in place to limit the power of the executive. |
| Clear powers | Under a codified constitution, parliament would have clear powers to control the executive. |
| Strong government | An uncodified constitution allows for a strong government that can carry out actions and deal with issues decisively. |
| Flexibility | An uncodified constitution is flexible and can adapt more easily to changes in society than a codified constitution. |
| Time and scope | Codifying the constitution would be time-consuming and unappealing given the size and scope of the changes. |
| Entrenchment | A codified constitution would make the government more subject to the law, as rights will be ‘higher’ than other laws. |
| Civil liberties | Civil liberties would be better guaranteed and protected and people would be more aware of their rights. |
| Entrenchment issues | It is not possible to create entrenched 'higher law' because Parliament cannot bind itself. |
| Political crisis | Supporters argue that the UK political system is in a state of crisis and that the central purpose of a constitution is to limit government power. |
| Flexibility vs legalism | An uncodified constitution is organic and naturally evolving, whereas a codified constitution is more 'legalistic' and arbitrarily implemented. |
| Judicial politicisation | A codified constitution could politicise the judiciary. |
| Democratic deficit | A codified constitution places too much power in the hands of an unelected judiciary, leading to a democratic deficit. |
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What You'll Learn
The UK's flexible constitution
The UK's uncodified constitution is flexible and adaptable, allowing for a strong government that can act and respond to crises decisively. This flexibility enables the government to meet current demands and address issues as they arise without being constrained by higher constitutional laws. For example, following the Dunblane school shooting in 1996, the UK swiftly banned handguns in England, Scotland, and Wales, an action supported by the majority of the public. This contrasts with the challenges faced by the US Congress in responding to mass shootings due to the constitutional right to bear arms.
The UK's uncodified constitution also enables Parliament to retain sovereignty and make decisions in the best interests of the country. It allows for the flexibility needed to respond to current issues and uphold the rights of citizens. For instance, the Cameron government passed a Civil Marriages Act, progressing rights as social attitudes changed.
While a codified constitution may provide clearer checks and balances on government power, it could also limit the effectiveness of government action and make it harder to fulfil manifesto promises. The UK's uncodified constitution allows for a strong and adaptable government, capable of addressing the needs and demands of a dynamic society.
However, some argue that the UK's flexible constitution has had its day. Supporters of codification believe that the UK political system is in crisis, as seen in calls for independence in Scotland and Wales, Brexit, and a decline in trust in politics. They argue that a codified constitution would limit government power and provide clearer protections for civil liberties. Additionally, a codified constitution would improve understanding and public awareness of the constitution.
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The US codified constitution
The US Constitution, the oldest and longest-standing written and codified national constitution in force, was established in 1787 and has been amended 27 times since. It consists of seven articles that define the basic framework of the federal government, delineating the doctrine of the separation of powers into three branches: the legislative, executive, and judicial.
The legislative branch is comprised of a bicameral Congress, with a Senate and House of Representatives. The House of Representatives is composed of members chosen every two years by the people of the various states, with each state having a single representative. The legislative branch's main responsibilities include establishing rules and laws, such as declaring war, raising armies, and defining and punishing crimes like piracies and felonies.
The executive branch consists of the President and subordinate officers, who share the power to enact laws with the legislative branch.
The judicial branch is made up of the Supreme Court and other federal courts, which interpret the laws and resolve disputes, including those related to the Constitution. The Supreme Court can also be involved in political issues, as seen in the case of disputes over the Constitution's meaning.
The US Constitution also outlines the rights and responsibilities of state governments and their relationship with the federal government. Amending the Constitution involves a two-step process, with proposals requiring adoption and ratification before they can bring about change. This can be achieved through a two-thirds majority in both the Senate and House of Representatives or via a national convention requested by two-thirds of state legislatures. Ratification requires the approval of three-fourths of the states, typically through the consent of state legislatures.
The US Constitution, with its focus on limiting government power, provides a contrast to the UK's uncodified constitution. While a codified constitution would improve understanding and awareness, it could hinder the government's ability to act decisively and adapt to changing societal needs.
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The UK's uncodified constitution
The UK is one of the few countries with an uncodified constitution, which means that its constitution is not a single document but a collection of sources, including statutes, court judgments, and conventions. The UK's uncodified constitution has several advantages and disadvantages.
One of the main advantages of the UK's uncodified constitution is its flexibility. Without a written constitution, the UK Parliament has the flexibility to respond to crises and changing societal expectations without being limited by higher constitutional laws. For example, following the Dunblane school shooting in 1996, Parliament was able to swiftly ban the majority of handguns in England, Scotland, and Wales, which prevented any future school shootings. In contrast, the US Constitution's codified right to bear arms has made it difficult for Congress to respond to mass shootings. The flexibility of the UK's uncodified constitution also allows for a strong government that can carry out actions and deal with issues decisively.
Another advantage of the UK's uncodified constitution is that it allows for the sovereignty of Parliament, a key aspect of UK governance. With an uncodified constitution, ultimate sovereignty lies in Parliament, which can override any decisions and respond to current issues. This flexibility is in the interests of the public and allows Parliament to safeguard citizens' rights effectively.
However, there are also disadvantages to the UK's uncodified constitution. One of the main concerns is that it gives too much power to the government, allowing it to make decisions that could harm citizens' rights. For example, UK data retention laws allow the government to keep personal data for an extended period, which invades citizens' privacy. A codified constitution would place checks and balances on the government and prevent ministers from evading justice, as seen in the "partygate" incident.
Another disadvantage of the UK's uncodified constitution is that it lacks clarity and public awareness. A written constitution would improve understanding and ensure that written checks and balances are in place to limit the power of the executive. Additionally, a codified constitution would provide better protection for civil liberties and guarantee rights that cannot be set aside under any circumstance.
Overall, the debate around whether the UK should adopt a codified constitution remains an academic one, with little support from politicians. While a codified constitution could provide benefits in terms of limiting government power and protecting citizens' rights, it may also reduce the flexibility of the government to respond to changing demands and could lead to increased politicization of the judiciary.
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Arguments for a codified constitution
A codified constitution would improve understanding and public awareness of the constitution in the UK. It would be far more clear than an unwritten constitution and would ensure that checks and balances are in place to limit the power of the executive. This would place powers in the hands of the judiciary, who are politically impartial. Judges are impartial and trained to guard the constitution and prevent the government from making decisions that could be motivated by a desire to retain power.
A codified constitution would also ensure that civil liberties are better guaranteed and protected. People would be more aware of their rights, so there are educational benefits. For example, UK data retention laws allow the government to keep personal data for 'as long as there is an administrative need', which is an invasion of privacy for citizens. A codified constitution would prevent this.
Supporters of codification also argue that the UK political system is in a state of crisis, which can be seen in calls for independence in Scotland and Wales, Brexit, a decline in participation, and a decline in trust in politics. The root problem is that too much power resides in the hands of the government, and a codified constitution would limit this power.
Furthermore, pressure groups such as Charter 88 have argued for the case of a codified constitution. A new means of entrenching a codified constitution could be created, such as a constitutional convention followed by a referendum.
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Arguments against a codified constitution
There are several arguments against the UK adopting a codified constitution. Firstly, the UK's current uncodified constitution is flexible and can adapt more easily to changes in society. For example, the UK constitution has been regularly amended to meet the changing expectations of citizens, such as the devolution of power to Scotland, Wales and Northern Ireland, and the UK’s withdrawal from the EU. An uncodified constitution also allows Parliament to respond to crises without being limited by higher constitutional laws. For instance, in response to the 1996 Dunblane School shooting, Parliament was able to swiftly ban the majority of handguns in England, Scotland and Wales, which is supported by a majority of the public. In contrast, the US Constitution's right to bear arms, entrenched in their codified constitution, has made it difficult for Congress to respond to an increasing number of mass shootings.
Secondly, there is no overwhelming desire for codification. Popular opinion tends to only favour change when the old system is clearly broken, which is not the case with the UK constitution. While supporters of codification argue that the UK political system is in crisis, pointing to Brexit and the decline in trust in politics, the political events of 2022, such as the peaceful transfer of power after the resignations of Boris Johnson and Liz Truss, suggest that the UK constitution is working well.
Thirdly, a written constitution could lead to the Supreme Court dealing with disputes over the meaning of the constitution, as is the case in the US. This would mean the court would become involved in political issues, despite not being elected. Additionally, a codified constitution could politicise the judiciary and give too much power to unelected judges, leading to a democratic deficit.
Finally, changing to a written constitution would be a difficult and time-consuming process, and it is not necessary as the UK's uncodified constitution has served without major problems for many years.
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