Posted on February 8, 2016
CODIFICATION OF THE UK CONSTITUTION: ISSUES AND DISCUSSION
Critique of the Options for Change
Recently, the 2005 Constitutional Reform Act has aided in further developing the partitioning of the powers in such a way that the autonomy of the judiciary and the “rule of law” is protected and safeguarded. This is the first time that the primacy of the law gained legal personality as the Act averred that it does not negatively affect the prevailing constitutional concept of the “rule of law.”
The functions of each of the government remained unscathed. Though the judiciary gained more independence and can interpret and interpret the tenets of the law, it is still tethered to the legislative structure established by Parliament; though the weight of the law was enhanced as a constitutional concept, it would seem that the rule of Parliament is still the guiding and overarching principle of the British Constitution owing to the legislative primacy of Parliament.
Beginning in the 1970s, a number of suggestions have been offered regarding a written Constitution rather than the prevailing unwritten one. These proposals have been given by a number of groups and individuals beholden to a wide array of political and social ideologies. The presence of a snowballing initiative for the codification of the Constitution from such a diverse political and social spectrum can be understood as a growing argument for the classification of the fundamental law. However, an alternative interpretation of the instance can be that the diverse political groups are contributing to difficulties in achieving the needed consensus required for substantive change.
Britain’s fundamental law can be defined as a total governmental system; it is a set of rules that monitors and administers the conduct of the government. The model is anchored on various “moorings;” judicial resolutions, laws adopted by Parliament, political operations, and specific policies and procedures practiced by agencies to fulfil their respective mandates. In this light, Parliament is empowered to change the Constitution if the party in power has the majority in the House of Lords and in the House of Commons.
Pros and Cons of a written Constitution
There are a number of positions supporting the codification of the UK Constitution. One, the adoption of a codified Constitution can impact the mandate and influence of the government; two, this can affect the association of the Parliament and the executive branch of the government and the relationship between magistrates and the politicians; three, the understanding and comprehension for the liberties listed therein.
Crucial and substantive Constitutional tenets will be listed within a single document; simply stated, the adoption of a written constitution will increase the clarity of legal jurisprudence in the country. Compared to the present status of the Constitution where the tenets and provisions are listed in several documents, there will be only one resource that will be used in the deliberation and discussion of legal matters.
Lord Neuberger, the head of the UK’s High Court, averred that there are extremely potent arguments for the adoption of a codified constitution in the same manner that the United States has codified its own fundamental law. According to Neuberger, the adoption of a written law will aid the country in overturning adverse decisions from the European Court of Human Rights. Furthermore, Neuberger proffers that though having a codified Constitution will not ensure that the rule of law will be fully complied with, there are potent arguments in having one.
British society is faced with a changing political and legal landscape where nearly all actions will mandate the engagement of an official set of policies and processes on how the government or its agencies will operate, and there is no strong argument to exempt the most significant agency of all, the government itself. Here, it can be argued that should Britain adopt a written fundamental law, it can be averred that the primary law will have the superior position over any ruling of the Strasbourg-based Human Rights tribunal or of the EU Court in Luxembourg.
In cases where the provisions of the decisions would be adverse to UK law, then it is implied that the primacy of UK law will take preeminence. Neuberger also averred that the UK has fared well sans the written Constitution; the prevailing political climate is one of rapid changes and the UK, without a codified Constitution, may be one of limited power and force. However, one of the arguments used to support codification is also one of the arguments against a written constitution.
Codified law is more difficult to change than acts of Parliament; due to this fixed, permanent nature of codified fundamental laws, the requirement for flexibility in uncodified constitutions is lacking. In addition, written constitutions are prone to acts of judicial authoritarianism and the democratic government in the United Kingdom. In the present structure, the power is vested in the elected House of Commons; hence, an amendment to the Constitution comes from the pressure of the electorate on their representatives.
In a codified constitution, it is not the legislators that would be given the duty to police the conduct of the law; this would fall on the judges. Magistrates are not elected officials; these are appointed agents of the government, and this will result in a democratic shortfall owing to a lack of “democratic legitimacy.” A written constitution, left to the interpretation of the judges, will be one bereft of public scrutiny, and one that can be interpreted according to the holdings of senior magistrates.
Existing mechanisms to change the Constitution aver that the complaisant character of the UK Constitution is its greatest strength. The flexible nature of the Constitution allows it to respond to needs that will arise. For example, the parity and the fluidity of the boundaries in each jurisdiction and the vote regarding the election system were introduced under the 2011 Parliamentary Voting System and Constituencies Act; this is a clear constitutional mandate that if introduced under the context of a written constitution, these may not even be addressed effectively and in a timely manner.
However, the unbridled nature of the government is also one of its greatest drawbacks. The unfettered power of the House of Lords to obstruct and even rebuff legislative proposals is one damning example of this liability. Aside from this issue, there is no established mechanism for “checks and balances” to protect the integrity of the British Constitution. In this light, there is very little by way of protecting the unity of the law from the capricious interests of the government in power. In this light, it can be said that the mode of constitutional change is only bridled by the interests of the party holding the command majority in Parliament.
Inclusion of Bill of Rights
The 1689 Bill of Rights, adopted in the immediate wake of the accession of William and Mary to the British throne, strengthened Parliament’s mandate and indirectly the rights of the British people. These included exemptions from the payment of levies that were implemented by the sovereign and from being drafted into the military service in peacetime and must only be done with the express ambit of Parliament.
Civil rights are closely linked to the “rule of law;” current jurisprudence lists these rights in the Human Rights Act, the tenets of the common law, and the individual parliamentary acts. There is an ongoing debate whether there is a need to develop a UK Bill of Rights. Among the arguments is whether one right is more enforceable than others, and whether these rights will be interpreted the same in the tenets of the EU. There are those that support this inclusion, averring that codifying the Bill into the fundamental law will safeguard it from erosion, that the Bill, over time, will have the same potency it had when it was first developed.
Amar and Adams (2013) note the position of James Madison regarding the comparison of English common law and the United States Bill of Rights. In the opinion of Madison, the differences between the two sets of laws are too diverse to even warrant a comparison. The significant differences between the two documents are that the UK Bill of Rights did not consider the rights being advocated for by the states in the US counterpart. Madison took advantages of the “cracks” in the Antifederalist position to resolve the changes beiong proposed to the US Constitution.
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Bibliography
Blick, A., “Codifying-or not codifying-the UK Constitution” <https://www.parliament.uk/pagefiles/56954/CPCSLiteratureReview.pdf (2 November 2015)
Dingle, L., Miller, B. “A summary of recent constitutional reform in the United Kingdom” International Journal of Legal Information 33, issue 1 (2005): 73
Economist, the “All change: Britain is one the verge of constitutional upheaval” Economist (Hayward Heath, UK) 2011 April 28
Morris, N., “The Big Question: why doesn’t the UK have a written constitution, and does it matter?” Independent (2011)
Owen, J., “US should consider a written constitution, says top judge Lord Neuberger” <https://www.independent.co.uk/news/uk/politics/uk-should-consider-a-written-constitution-says-top-judge-lord-neuberger-9792250.html
Parliament, “Chapter 2: The current practices of constitutional change” <https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17705.htm (Accessed 2 November 2015)
Reed, Akhil Amar, Adams, Les, The Bill of Rights: A citizen’s guidebook to the American Bill of Rights (New York City: Skyhorse Publishing, 2013) n. page
Winrow, M. “Discuss and analyse the arguments for and against adopting a codified constitution in the UK” <https://www.peterjepson.com/law/WinrowUK-8.pdf (Accessed 2 November 2015)
Yuen Kit Yuan, “The Ultimate Ruling Principle of the British Constitution,” Student Journal of Law <https://www.sjol.co.uk/issue-5/the-ultimate-ruling-principle-of-the-british-constitution (Accessed 2 November 2015)
List of Laws/Acts of Parliament
1. 1689 Bill of Rights
2. 2005 Constitutional Reform Act
Websites
Blick, A., “Codifying-or not codifying-the UK Constitution” <https://www.parliament.uk/pagefiles/56954/CPCSLiteratureReview.pdf (2 November 2015)
Owen, J., “US should consider a written constitution, says top judge Lord Neuberger” <https://www.independent.co.uk/news/uk/politics/uk-should-consider-a-written-constitution-says-top-judge-lord-neuberger-9792250.html
Parliament, “Chapter 2: The current practices of constitutional change” <https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17705.htm (Accessed 2 November 2015)
Winrow, M. “Discuss and analyse the arguments for and against adopting a codified constitution in the UK” <https://www.peterjepson.com/law/WinrowUK-8.pdf (Accessed 2 November 2015)
Books
Reed, Akhil Amar, Adams, Les, The Bill of Rights: A citizen’s guidebook to the American Bill of Rights (New York City: Skyhorse Publishing, 2013) n. page
Journals
Dingle, L., Miller, B. “A summary of recent constitutional reform in the United Kingdom” International Journal of Legal Information 33, issue 1 (2005): 73
Morris, N., “The Big Question: why doesn’t the UK have a written constitution, and does it matter?” Independent (2011)
Economist, the “All change: Britain is one the verge of constitutional upheaval” Economist (Hayward Heath, UK) 2011 April 28
Type of paper: Course work
Citation style: Chicago/Turabian
Pages: 6
Sources: 8
Level: Bachelor
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