codification

• Uncodified constitution


  Ultimate sovereignty lies in parliament and they can override any decisions
• UK constitution


  • Organic - developed naturally in accordance with changes in nature of society and political problems
  • Accumulation over time spread over different documents and precedents
  • Has a number of sources including statutes and delegated legislation made under authority of government
• Codified constitution


  Ensures a more formalised process for extensive constitutional change with in built checks and balances
• There is not large demand towards a codified constitution in the UK
• An uncodified constitution ultimately gives the government the flexibility which is in the interest of the public
• Argument FOR a codified and entrenched constitution

  • Better protect human rights in the UK, potentially by introducing a new British Bill of Rights that would be entrenched and therefore couldn't be infringed upon by the government and other public bodies
  • Give citizens a greater understanding and attachment to their rights as a citizen
• The current Human Rights Act

  Doesn't protect rights effectively in the UK as parliamentary sovereignty means that judges can't legally compel parliament to make changes to laws and the fact it is not entrenched means the HRA could be repealed by a simple act of parliament
• The Illegal Migration Bill was introduced by Home Secretary Suella Braverman on 7th March 2023 with a section 19 note stating that there was a likelihood the provisions of the bill would be incompatible with the Human Rights Act and international law (The European Convention on Human Rights), but that the government wanted to proceed with it nonetheless
• Argument AGAINST a codified constitution

  • Would simply increase the power of unelected, unaccountable and unrepresentative judges to police the constitution and make difficult decisions about how rights should be applied, dragging them into political matters and granting them too much political power
  • It is arguably better if Parliament resolves such issues and is accountable to the people, as is currently the case
  • The Human Rights Act in fact currently provides a robust framework for protecting the rights of British citizens
• Since the HRA, the UK has developed a 'rights-based culture' as all new legislation must be compliant with the act and judges can declare earlier acts of parliament incompatible with it, whilst public authorities in the UK are under an obligation to abide by it
• Parliament usually acts to address any issues raised by the courts and parliament also has a Joint Committee on Human Rights to scrutinise bills and ensure they are compatible, demonstrating the 'persuasive influence' of the HRA
• In A v Secretary of State for the Home Department, part of The Anti-terrorism, Crime and Security Act 2001 was declared incompatible with Articles 5 and 14 of the human rights act by permitting the detention of suspected international terrorists in a way that discriminated on the grounds of nationality or immigration status. The Prevention of Terrorism Act 2005 was amended by parliament as a result
• The HRA already educates citizens about their rights and makes them more high profile in the political system
• Parliament can be seen as effective in preventing the government from encroaching human rights by voting down bills, especially the House of Lords due to its lack of control over veto
• Rights and freedoms are essential to democracy and this argument is much more prevalent and stronger than concerns over threat to parliamentary sovereignty
• Argument FOR codification and entrenchment

  • The British constitution is too easy to amend, as any statute can be repealed by Parliament, whatever its constitutional implications, whilst significant constitutional changes can be introduced by a simple majority in Parliament
  • Entrenchment would protect the constitution from political interference from an overarching executive and make it more likely that potential reforms are fully debated before being enacted
• The Fixed Term Parliament Act 2011 was arguably passed for short term political reasons in relation to the coalition, but could've had far reaching implications, preventing a government with no majority from triggering an election
• Argument AGAINST codification and entrenchment

  • The flexibility of Britain's uncodified constitution has allowed the British political system to evolve gradually and adapt to unusual circumstances when necessary
  • The constitution has evolved a great deal over the past two centuries, making Britain a democratic system, and New Labour's programme demonstrates that major progressive changes can be made
  • Codification would likely be a highly complex and controversial process that could take years and distract politicians from governing the country, whilst there would likely be significant disagreement over how the constitution should look
• Labour removed the majority of hereditary peers from the House of Lords, introduced the Human Rights Act 1998 to improve rights protection in the UK and created the Supreme Court in the 2005 Constitutional Reform Act
• The US constitution has been criticised for allowing thousands to die through school shootings due to the 2nd amendment, which is seen by many to be no longer relevant given its damaging effects and the huge power of the US military
• Argument FOR codification and entrenchment

  • Codification could enable parliament to better check and constrain the executive, making the government more responsive and accountable to the people's representatives
  • The Supreme Court could also be given a key role in protecting the constitution, by giving it the ability to strike down laws if they didn't comply with the constitution
  • Judges are neutral and arguably best placed to interpret the constitution and make sure that it is applied fairly by public bodies, including parliament
• The Conservative government was able to easily prevent those without relevant ID from voting in the Elections Act 2022, which many believe they did to restrict those from voting who were less likely to vote for the Conservative Party
• Argument AGAINST codification and entrenchment

  • The current uncodified constitution can be seen as offering sufficient protections for democracy
  • Conventions clearly hold weight, as shown by the backlash they generate when they are broken by the government, which ensures democracy is protected
  • Greater checks and balances would come at the expense of preventing the government from quickly dealing with emergencies and passing its key manifesto pledges, which are key benefits of the current uncodified constitution
• When the government prorogued Parliament for political reasons in 2019, it generated significant public backlash and the Supreme Court used its powers of judicial review to rule that the government had acted ultra vires and force it to reverse its decision
• The emergency measures brought in to respond to COVID-19, which significantly impinged upon human rights, are a good example of the uncodified constitution allowing the government to quickly and effectively deal with emergencies
• The UK's current uncodified constitution also typically provides for strong governments that can carry out their legislative programme without facing the same level of checks and balances as in many codified constitutions
• The debate should mainly focus on trade off between flexibility and greater protection rights