Analysis: Should the U.K. Have a Codified Constitution?

.                                                                 07/02/22

The U.K. is a rather odd case of a country that's constitution is a 'mish-mash' of different sources. It was established in 1215, when the Barons forced King John to accept the restrictions that Magna Carta put forward. The main sources that make up the constitution are: Parliamentary Statues (Acts of Parliament), Common Law, Conventions, Customs and Traditions and Works of Authority. Previously, EU law was also a primary source of the U.K. constitution, but thanks to an event that needs not naming, it no longer is. But unlike other major countries, such as The U.S.- our constitution is not physically written out in one document. When written out in one document it is referred to as 'codified' and if it is unwritten, like ours, it is 'uncodified.' So, inspired by the classic A-Level Politics question, I will answer the question: Should the U.K. have a codified constitution?

 

First of all, quite possibly the single greatest advantage to an uncodified constitution is its flexibility. Changing the constitution can be just as simple as any other law, all it needs is to pass an Act of Parliament. The best examples we can see of this were seen under Tony Blair's premiership. Of his changes, one stands out as being of absolute importance to the functioning of modern-day Britain that could only have been possible as a result of the simple flexibility of an uncodified constitution. This being the Human Rights Act 1998. This was near revolutionary to Britain, a country shy to the idea of legally protected Human Rights, at the time as it incorporates the European Convention on Human Rights (ECHR) into British law, which was simply unprecedented at the time, but all this took was the passing of said act, which, as with any act, only needed a simple majority of MPs to vote for it. If we were to have a codified constitution, an amendment would need to be passed as seen in America. This is an extremely complex process, which in America, requires 3/4 of State legislatures to ratify the amendment. It is arguable that without this flexibility, our fundamental human rights as British citizens would not be anywhere near as well protected as they are today.

 

Equally, having a codified constitution also has a main advantage. That being its clarity. With a codified system, the entire constitution is in one document. This means there is one single point of reference for anything constitutional. To anyone in power, whether they are political, royal or even involved with business, the constitution is clear. They have no reason to act unconstitutionally and this can help them avoid mistakes that can genuinely affect their careers. But the main benefit here is that the constitution is easily accessible to the people. Written in one document, it can be easy to find. Most countries with a written constitution have it available on the internet as a PDF document. While this allows citizens to have a greater understanding of the principles and values of their nation, the main advantage is that it allows for citizens to easily know their constitutional rights. So, if implemented in the U.K., British people could read through the constitution to understand their rights as British citizens as opposed to having to read through the overly complex ECHR, which isn't really meant for consumption by the ordinary person. Overall, this makes the constitution clearer for everyone, regardless of where they stand in society. An uncodified constitution is almost impossible for the vast majority of people to understand simply due to its nature of being spread across several different sources.

 

Another major advantage of keeping the constitution uncodified is the logistical challenge of codifying a 772-year-old constitution. With so many sources making up the constitution in this huge span of time, it would be almost impossible to codify. Meticulous detail would have to go into finding and codifying nearly 800 years’ worth of constitutional sources. This would take a titanic team likely several decades to get anywhere close to completing it. It would also raise questions surrounding how exactly many sources of the constitution could be codified, such as Common Law and would Statutes have to be summarised, possibly missing important details? If it were to be codified, it would likely have to be from scratch, and ripping up a constitution that old that carries the values and principles of Britain would prove a controversial matter. Lest we forget the cost of codification as well, which would likely be one of the most expensive government exercises we have ever seen, likely with little to gain despite the cost. On top of this, codification is already a politicised issue with it being a partisan, two-sided argument. As with Brexit, it would likely start out as a non-party matter, but would eventually become a matter of Left vs Right and Labour vs Conservatives, both picking a side that would likely benefit them and secure votes for them. Not only this, but with the unprecedented legal presence this would have, the Supreme Court would almost certainly have to get involved. This would counteract the idea of the Supreme Court. The highest court in the land was formed in 2008 to separate the Legislature from the Judiciary, in other words taking the Law Lords (the Judiciary) out of the House of Lords (the Legislature.) The aim was to separate the powers, which arguably worked. Getting the Supreme Court involved on such a politicised issue would absolutely contradict the entire point of its creation. While the Supreme Court has been involved in controversial political points of law before (such as Boris Johnson's prorogation of Parliament, they have never been and likely never will be involved in something of this size.

 

One of the key arguments for the creation of a codified British constitution that has arisen recently is a British Bill of Rights (BBoR). Inspired by the first 10 Amendments to the Constitution of the U.S.A.,which form the Bill of Rights, this would replace the Human Rights Act. By repealing the HRA and having the BBoR in British law, the set of rights would be much more tailored to Britain and its way of functioning, which is fairly different from the functioning of much of the E.U., making the ECHR/ HRA less relevant to Britain than the BBoR would be. Therefore, it would be in line with what Britain needs out of its human rights and also more akin to British consensus on the matter. It would also create a more modern set of rights for Britain. The ECHR was created in November 1950, 72 years ago. Therefore, there is a strong argument to suggest just how outdated this constitutional centre-piece is in 2022. By putting the BBoR, our constitutional rights would be guaranteed by a piece of legislation made in the 21st century, for the 21st century. Despite it being more complex to amend a codified constitution than an uncodified constitution, it is still possible to create amendments, therefore the BBoR can be updated to provide the best possible rights for British people. However, it is simply not possible to talk about the BBoR without mentioning its issues. Much of the support for it comes from Britain's nationalist side of politics, such as the current Populist Conservative government. While this in itself is no bad thing on the surface, the reasoning behind the desire could be a bad thing. A lot of it stems from how politicians want greater political power and greater sentencing power for criminals, that they claim the ECHR stops them from having. Therefore, there is speculation that the idea of the BBoR could be created as to their benefit, not as to the rights of British people. But, equally, a more efficient state could be to our benefit as its business ultimately affects us all.

 

Overall, both present very clear arguments. In summary, keeping the uncodified constitution takes the mantra of 'if it isn't broken, don't fix it' and reforming and codifying it seeks constitutional progress. However, the reformation and codification of the constitution is at far too much of a logistical challenge, and also will incur an exponential cost to the taxpayer, which they will see little benefit from. Where it presents benefits, many British people would simply shrug their shoulders. Put simply, the uncodified constitution works. Many of its most important sources are easily accessible as Statutes, case reports from Common Law or works of authority. Anyone who wants to access the constitution will likely take some interest, so simplifying it for the uneducated would prove pointless. Despite its age, the ECHR/ HRA protect our human rights in a way that are internationally standard and tried and tested. At the current moment in time, while governments are in near crisis, the burden of creating a codified constitution could make our executive crumble. In layman's terms, there is no argument for a codified constitution, for now.