Public Law

Final Answer on Codification

Q3. Discuss whether the United Kingdom now requires a written constitution.
The United Kingdom as always stand out peculiar. Where vast of the majority of countries have
codified constitution –a single written document which identifies the functions of the organs of
the state and their fundamental powers and limits. The UK operates under an uncodified
constitution. This lack of single document in UK’s political system has fostered adaptability and
confusion, sparking the ongoing debates on the merits of codifying the constitution. This essay
will delve into those unique aspects, explore arguments for and against codification and its
impacts.
Before delving into further details the misconception related to the UK’s constitution described
as ‘no constitution’ or ‘no written constitution’ is inaccurate and misleading. On deeper scale, it
is observatory that UK’s constitution is rather uncodified and written in nature as determined
through the statement of House of Lords Select Committee 2002 ‘Contrary to the popular
definition of UK’s constitution being unwritten –most its part is written but rather uncodified’.
Contrary to these assertions by Thomas Paine and Alexis de Tocqueville and recently by Lord
Newberger that UK possess a constitution, but differs from the fundamental characteristics of
other codified constitution. The Great Britain’s constitution is uncodified meaning not present in
one single document. Instead it is written in different scattered sources, like statutes, common-
law and conventions.
Countries with codified constitution have developed through single, transformative moment,
whereas UK has developed through evolutionary ways through hundred years. This means for
UK’s uncodified constitution the sources are scattered as mentioned foremost. In the ambit of
legal sources fall the statutes, common-law, international treaties, likewise non-legal sources
consist of conventions. On observing the statutes, we can conclude that Magna Carta 1215,
which is a legal document and such other statutes which concern the parliamentary issues are
constitutional statutes. Furthermore, principle cases which have set out legal decisions such as
Entick v Carrington and Factortame are constitutional common-law principles. Most recently,
the judgement in the case; Miller v The Prime Minister, where it was seen that the judiciary can
intervene in order to uphold constitutional principles of Parliamentary sovereignty and
prorogation.
The second ambit of non-legal sources are conventions, those unwritten rules which have a
societal position and are practiced customary. Conventions like ministerial responsibility or
requirement of Monarch’s Royal Assent before passing any Act of Parliament are those
constitutional convention which are exercised but are not enforced. However, we can analyse
this from sir Jennings work about their vital roles in constitutional principles that these non-legal
sources give clothes to the dry bones of rules.
The world sees UK’s uncodified constitution as a weakness however, on governing scale it might
give certain advantages to UK for governance. As demonstrated in many works of the infamous
legal scholar A. V. Dicey, where he explicitly portrays UK’s uncodified constitution as the most
flexible polity in existence. This means that there are no formal procedures for the amendments
or updates to acquire prosperity with the time. On analysing this feature of UK’s constitution, we
can see the devolved legislations setting the best example like The Scotland Act 1998, The
Government of Whales Act 1998 and The Northern Ireland Act 1998. Where due to the
flexibility of the uncodified constitution, the powers of legislations were devolved in order to
achieve better governing system. Likewise, in the most recent case of 2019 before Brexit Miller
v The Prime Minister, we saw how intervening of the judicial review in political affairs was legal
to prevail constitutionalism and Parliamentary sovereignty. Through these two examples we can
conclude that it’s the feature of flexibility which allows UK to govern in such procedural
approach. Similarly, the removal of hereditary peers of Lords happened smoothly due to flexible
inherent nature.
UK’s constitution also offers adaptability to face unforeseen challenges. As seen in the recent
circumstances of covid-19, where shift of Parliament to virtual Parliament was adapted in no
time rather than long process. Other advantage for UK’s constitution, with a potential drawback
is its confusion, where constitution evolved in organic development. As said again by A. V.
Dicey it is ‘historic’ constitution –which means the constitution was not designed deliberately
rather emerged gradually through historic events. The concept of constitution is also referred as
‘great tree’ in recent literatures. It is metaphorically emphasized to have deep roots, offering
stability and shelter throughout the history which is explicitly explored in the works of
Blackstone’s and covers of Jennings as references.
This leads to the merit of democratic nature of UK’s constitution. Unlike other codified system,
where past decisions are difficult to change, UK has given free hand and allows generational
influence to change constitution through elective representatives. For instance, the new Labour
government Act 1997 which signifies reforms like devolution, HRA and other which might have
been difficult to achieve through codified constitution. The democratic advantage of uncodified
constitution highlight its support to Parliamentary Sovereignty. Where the codified constitution
limits these authorities on what Parliament can do. With uncodified nature of UK’s constitution,
it grants ultimate power and authorities to Parliament. Parliamentary sovereignty is referred as
the ‘efficient secret’ of UK’s governing system by Bagehot –which means writing these rules in
single document will take down this efficient secret away.
The opponents of codification undermine the power of judiciary as it would create a powerful,
unelected judiciary. Which would grant more authorities to judges. This would undermine the
power of elected representative. Thus, there is no clear definition of ‘constitutional’ however,
there would be disagreement in codifying as it would foster no flexibility and hinder future
adaption.
The uncodified system of UK seems as anachronism. However, due to recent push of
codification, UK is considering to be among the codified countries. No doubt in the fact that
uncodified constitution owns undeniable charm, but on exploring the other picture, there are
compelling arguments for the favour of codified constitution. This system of codified
constitution would bring much-needed certainty and clarity to the rules, which is seemingly
difficult to achieve through the current system.
A codified document would establish a clear reference points, foster better understanding and
would define clear limitations to the governmental powers. One of the most significant criticism
of UK’s uncodified constitution is surrounding the confusion of ‘unconstitutional’. Unlike other
countries like UK sees unconstitutional as illegal, whereas UK operates in the grey area. The
deeming practice of unwritten conventions are referred as violation in unconstitutional system of
UK. By codifying the conventions, it would highlight those murky areas by replacing the
confusion. It can be exemplified through most important convention of ministerial responsibility.
Where we can determine that on violating this convention there would be no resignations of the
ministers or any legal action taken as demonstrated through the miller case that even after
proroguing the parliament was unlawful there was no resignation or legal actions taken upon the
Prime Minister except of judicial review.
Lord Hailsham’s observation state UK’s governing system as ‘elective dictatorship’. This is a
very critical and compelling argument against uncodified constitution, as majority of power lies
in the hands of the Parliament and there is limited checks on their actions. Codified constitution
would enable to achieve this through its principles as it will play as higher law by placing
restrictions on their authorities. Because in a democratic nation, people should be sovereign, not
the Parliament.
When we speak of uncodified system, it means there is no procedure for amendments. Anything
can be repealed or amended with a simple majority. Just as in the case of HRA 1998, where it
gives the citizens their rights, it can also be repealed with a simple majority, this leads to citizens
having no confident for safeguarding their rights. On contrast, we can exemplify the article 5 of
US constitution which needs a super-majority and rectification from other countries for any
amendment or changes to be made in a constitution. Thus, codified system will safe-guards the
confident of citizens for their rights.
Codified system enlightens the importance of supremacy to rule of all, where all subject to clear,
public laws and everyone is held accountable. Thereafter, this increases certainty, improvise
accessibility, and enhance equality and accountability. With codification, UK has fear of losing
its historic rich traditions however, codification is not a historic wrecking ball rather it cherishes
institutions and centuries built traditions with more clarity.
Uncodified system has its undesiring drawbacks which also counts lack in public understanding.
It is shrouded with confusion for the public itself. Citizens rely on the judges to interpret this
much uncodified systemic document. This makes public disconnected to this constitutional
document. On a deeper research, constitutional study is not significantly important to study in the
public priority list. Around 80% of the UK citizens admit that they know little to nothing about
this document Ipsos Mori 2008. Hence, it’s the codified system which will give sense of
ownership to the system. Moreover, citizens would not have to rely on the judges rather would
have good debate points to engage from codified constitution. This would also raise clear
reference for debate for rights to ignite public discussions. Thus, uncodified system breeds to
apathy and confusion.
To conclude this very issue of codification, there is question to highlight that is the current
uncodified system adequate enough to face challenges of 21st century? Well proponents of
codifications advocate in ‘if it isn’t broken, don’t fix it’ approach. However, on a critical
decision like codifying the constitution, we need to deep dive into the evaluations of drawbacks
and benefits is essential.
However, in my view of constitutionalism, the arguments for the codification are more
compelling to modernization. By creating a more accessibility, enhance transparency, develop
accountability and reinforce democratic participation. Thus, codifying the constitution would be
more compelling solution to the drawbacks to the current situations for UK’s governance.