Arguments for and against a codified constitution

This House Would Codify The Constitution | Debate | Cambridge Union 2019


The UKs Flexible Constitution has had its day. Bronwen Maddox FT

Case study Party-gate A constitutional Crisis ?


The proposal that the UK should have a codified constitution remains an academic debate, a debate between those who study politics and with little support from politicians other than the Liberal Democrats who have long supported the introduction of a codified constitution and a bill of rights. However pressure groups, such as Charter 88 have been formed to argue the case.

Arguments against a codified Constitution-

It is simply not possible because of the sovereignty of Parliament it is not possible to create entrenched 'higher law .Parliament, cannot bind itself. However, if a new means was created- such as a constitutional convention followed by a referendum- this might be possible- but this would still need to be legitimised by Parliament as with all referendums-Or would the popular sovereignty of the referendum entrench the new constitution politically if not legally? The end result could never be a sovereign constitution as exists in the USA.

It may be impossible simply because there is no political consensus (agreement) on what it would look like. Writing a new constitution can be a torturous process even for 'new 'nations-one with deep seated traditions of class and ideological politics would find it impossible. Would the new constitution ensure limited government - a conservative principle or the right s of citizens to social services and free health care - a labour principle. And both dominant parties would hesitate to embrace any change which allowed there position to be challenged such a electoral reform. Note how Labour lost interest in PR when it was in power.

There is no overwhelming desire for codification - there is always going to be more pressing issues and the size scope and changes which codification would entail make it a time consuming and unappealing proposition. Popular opinion tends only to favour change when the old system is clearly broken., which is why most new constitution follow a new beginning or a political crisis.

However

Supporters of codification 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, decline in participation and the decline in trust in politics. The root problem is too much power resides in the hands of government and the great advantage of a codified constitution is the limit it places on government. As the central purpose of a constitution is to limit government power, the constitution must be independent from the government itself. How can we trust a government that can enlarge its own powers at will? This is the central defect of the uncodified constitution, and its roots lie in the principle of parliamentary sovereignty. The only way of overthrowing parliamentary sovereignty is through the creation of an entrenched and judiciable constitution. Not only would this put the powers of government bodies and the relationship between the state and its citizens beyond the control of the government of the day, but it would also allow judges, who are ‘above’ politics, to become the guardians of the constitution.

However critics of this argument usually warn that it is an artificial, legalistic device that would, anyway, lead to the tyranny of judges over democratic politicians. They point to the power of the unelected US Supreme Court.

They also argue that the goal of limited government can be achieved through a range of other reforms which would not result in the burden of higher law. Such as strengthening of checks and balances through Lords reform, local government devolution, stronger rights protection and electoral reform. Since much of this seems to be happening, constitutional reform should continue to run with the grain of the ‘unwritten’ or ‘unfixed’ constitution, rather than embrace an entirely different constitutional framework.

And flexibility is an advantage. The US codified constitution has only been amended 27 times since 1787, and ten of these amendments were made in 1791, to include the Bill of Rights. In contrast, the UK constitution has evolved throughout history, and, due to Parliamentary sovereignty, continues to be regularly amended, to meet the changing expectations of citizens. Since 1997 there have been a wide range of significant constitutional reforms made in response to public pressure, including the devolution of power to Scotland, Wales and Northern Ireland, and the UK’s pending withdrawal from the EU. Our uncodified constitution also gives Parliament the flexibility to respond to crises, without being limited by higher constitutional laws. In America, the constitutional right to own weapons has made it difficult for Congress to respond to an increasing number of mass shootings. In contrast, Parliament reacted to the 1996 Dunblane School shooting by swiftly banning the majority of handguns in England, Scotland and Wales, as supported by a majority of the public. As society continues to change at a rapid pace, a codified constitution could soon become out of date.

However… this flexibility arguably allows Parliament to make significant constitutional reforms too easily. The US Constitution is intentionally difficult to amend, requiring a two-thirds vote in both Houses of Congress, and three-quarters of States to approve. The Founding Fathers of the US wanted to ensure that amendments would receive intensive scrutiny and would not undermine the Constitution’s fundamental principles. They wanted to entrench particular ideas and principles that many Americans consider to be as relevant today as they were back in the 18th Century. (The doctrine of Originalism) In contrast, the UK Parliament can amend the constitution by simply passing a bill. An unwritten convention has begun to develop where referendums are held to approve significant constitutional reforms. However, as a convention, there is no legal guarantee that this additional step will always be taken.

Arguments for a codified Constitution

It will educate and inform

Our uncodified constitution makes it difficult to learn about our rights, and how government works. In America it is relatively easy for school pupils to learn about their system of government and constitutional rights because all of the necessary information is contained in the codified US Constitution. The first articles establish and explain the powers of the different branches of government, while the Bill of Rights explains the rights of the people. In contrast, our uncodified constitution has so many different sources, including statute laws, common law, unwritten conventions, EU law and authoritative texts, that it is much harder for the public to understand.

However… the Human Rights Act (1998) has raised the general awareness that rights exist and the specific understanding of some rights- like the right to family life. The Human Rights Act (1998) has given UK citizens a clear and concise list of rights, which can be defended in UK courts. However, these rights are not fundamental law, and the UK Supreme Court cannot strike down any laws that undermine them. Also the Cabinet Manual has unofficially codified many of the most important rules and conventions that the government operates by. Although it has not been approved by Parliament and does not have clear legal standing. Also significant is the fact that many previously vague royal prerogative powers have recently been defined and limited by statute law, giving them a much clearer written source.

Conventions are too weak

We are overly reliant on unwritten conventions that are not legally enforceable and that few understand. The Government broke conventions when it prorogued Parliament in 2019 and when it threatened the amend the Brexit agreement and break international law. Conventions are not legally enforceable. The Scotland Act (2016) formally recognised the existence of the Sewel Convention - the rule that the UK Parliament will not normally legislate on devolved matters without first seeking the consent of the Scottish Parliament. However, the Supreme Court ruled in 2017 that it could not enforce this convention, after the Scottish Government argued that a legislative consent motion was required before the UK Government could begin the process of withdrawing the UK from the EU.

It is also argued that that matters as important as the role of the monarchy, the use of ancient prerogative powers such as prorogation, and the circumstances under which the UK enters into armed conflict, are left to unwritten conventions that could ultimately be broken.

However…conventions are not often broken, offer a degree of flexibility, and are arguably inevitable. Convention exist in countries with codified constitutions-such as the USA where conventions govern the existence of the cabinet, deference to senators when appointing in their state (Senatorial Courtesy). The convention that US presidents serve only two terms latest until 1940. The strength of many conventions in the UK is evident by how rarely they are broken – they often stand the test of time and are respected and upheld. It is not necessarily the case that a codified constitution would be more reliable, or that it would prevent conventions from developing in the first place.

It would protect the separation of powers- and an independent judiciary.

Mostly in the UK the argument is that a separation of powers should protect the judiciary- whose appointment can still be vetoed by the Justice Secretary and whose judgements are can be set aside by Parliament. However, while the separation of executive and legislature is a feature to the US constitution it is not adopted by the vast majority of democracies. The US Constitution establishes a clear separation of powers. Any members of the executive branch cannot also be members of the legislative branch, meaning the President can propose bills, but is unable to vote in Congress. Both Houses of Congress must agree on bills for them to become law, and the Supreme Court can strike down laws that conflict with fundamental constitutional laws. In contrast, our executive and legislative branches are fused, with the prime minister and other government ministers able to sit and vote in the House of Commons. The House of Lords can only delay bills, and has even more limited power over ‘money bills’. The Supreme Court cannot strike down laws due to Parliamentary sovereignty and our lack of fundamental laws. A new codified constitution could more clearly separate power between the three branches of government, creating new, stronger, checks and balances.

However the argument for separation of legislature and executive tend to face the prospect of gridlock and and entrenched constitution might lead to judicial activism. In the US there is gridlock when the president and Congress, or the two houses of Congress, can't reach an agreement. Any attempt to weaken the government’s influence in the House of Commons, or to strengthen the House of Lords, could make it much harder for elected governments to carry out their manifesto. A codified constitution would also politicise the judiciary, which would need to interpret the language of the static, codified constitution, and determine whether laws are constitutional. This could lead to accusations of judicial activism, where unelected judges are accused of using questionable interpretations of the constitution to promote their own political agenda.



There's no need because the HRA has answered many of these problems

The Human Rights Act (1998) has already strengthened our rights. The Human Rights Act (1998) allows the Supreme Court to issue a “declaration of incompatibility” when laws undermine human rights. Parliamentary sovereignty means that it is then up to Parliament to decide how to respond. However, past experience has shown that, politically, it is not easy to ignore these declarations, and Parliament has tended to swiftly approve whatever changes are necessary to make the law compatible. Therefore, while the UK lacks fundamental laws, the courts are able to use the list of rights contained in the ECHR to challenge legislation. Similarly, just as US legislators must ensure that bills comply with the US Constitution, UK Ministers must submit a ‘statement of compatibility’, explaining how their bill is compatible the ECHR. Although these statements are not legally binding, it still suggests that Parliament is behaving as if the HRA is fundamental law, even if legally it is the same as any other. However… these rights are not entrenched, and could soon be changed by Parliament. The US Supreme Court can strike down laws that undermine constitutional rights. But, in the UK, our Supreme Court cannot strike down laws that are ‘unconstitutional’ because we lack a codified constitution and because Parliament is sovereign, able to pass or repeal any law. Some campaigners argue that as long as the UK has an uncodified constitution, our rights can all too easily be amended by Parliament. Campaigns to ‘save’ the Human Rights Act (1998) are a reminder that that while the law usefully codifies many of our rights, it does not legally entrench them.

It's broken so let's fix it.

However since 1997 the rate of recent constitutional reforms has arguably increased the need for a new constitution. While the UK is not on the verge of revolution, it is arguable that recent constitutional reforms, such as devolution and the Human Rights Act, have challenged core principles of the UK constitution, and created a highly asymmetric constitutional structure which is more confusing and more unfair to such as extent that the UK would benefit from a new constitutional settlement. A new codified constitution would be able to make sense of many recent incomplete reforms, as well as any unintended consequences – like, for example, the West-Lothian Question. Arguing that the UK constitution should be left as it is, because it has served us well for so long, arguably overlooks the fact that many citizens, such as those campaigning for Scottish independence, already feel that, in spite of recent reforms, the UK’s historic constitutional settlement no longer works.

For example since Brexit and Devolution the Sewel convention has started to break down This is an arrangement that regulates the relationship between the UK Parliament and the national assemblies of Scotland, Wales and Northern Ireland. It requires specific consent to be given from the devolved governments for any UK-wide legislation that encroaches on devolved matters, particularly health, legal and policing matters. If consent is refused, the UK Parliament can — and usually does — still pass the legislation, but reflecting ever-growing hostility, the three devolved governments now refuse this consent on multiple occasions each year, prompting calls for a full codification of the UK’s constitutional arrangements. The passage of the UK Internal Market Act (2020) also saw substantial changes to the operation of devolved competences. When the Scottish Parliament and the Welsh Assembly withheld their legislative consent, the Act passed through the UK Parliament anyway. In September 2021 the Welsh Government refused to provide legislative consent for the UK Elections Bill that made photo identification compulsory when voting in general elections in Wales, yet the Act passed anyway.

Another constitutional convention is the expectation that the government and its ministers behave responsibly and follow official advice.

■ In November 2020, Boris Johnson requested a review into his home secretary’s conduct following allegations that Priti Patel had ‘bullied’ departmental staff. Independent adviser, Sir Alex Allan, found that the home secretary had indeed broken the Ministerial Code, most often by ‘shouting and swearing’ at Whitehall officials. Despite the inquiry’s findings, the prime minister took no further action.

■ In December 2020, the House of Lords Appointments Commission refused to support the prime minister’s intention to appoint Peter Cruddas to the House of Lords. The Commission advised that it was unable to support the nomination after carrying out its vetting. The prime minister made the appointment anyway.

In recent years there has been a raft of political events, challenges and incidents that have shifted the UK’s constitutional framework faster and further than at any previous time. Such events have included:

■ Brexit and the implications for Northern Ireland’s relationship with the rest of the United Kingdom

■ the prorogation of parliament in 2019, when Boris Johnson suspended parliament for up to 5 weeks, and the subsequent Supreme Court challenge to the prime minister’s use of prerogative powers

■ recent independent reviews — into Administrative Law and Human Rights — that look set to shape future constitutional changes relating to the protection of rights

■ proposals to restrict the scrutiny powers of the senior judiciary through legislation such as the UK Internal Market Bill which prevented them declaring parliamentary laws incompatible with EU law

■ the repeal of the Fixed-term Parliaments Act to return the calling of general elections to the prime minister’s prerogative powers

■ the coronavirus health crisis that necessitated three lockdowns and a re-evaluation of the extent of emergency powers wielded by the state

■ pressure on devolved arrangements, driven by support for the Scottish National Party and by developments in English devolution

■ escalating tension between the government and the civil service leading to multiple resignations of permanent secretaries in 2020 and 2021, including permanent secretaries in the Home Office, Treasury and Justice Department.

These changes have given rise to the view that the UK’s traditional constitutional strengths of flexibility and a lack of codified rigidity are hampering the effective and successful functioning of the state and increased calls for constitutional settlement for the United Kingdom i.e. Codify the Constitution.


For

It would still be possible to amend the constitution but through a careful and considered process and only when there is general agreement.

Codification would educate the public about their rights, responsibilities, and duties as well as encouraging a greater understanding of politics and political processes.

An entrenched Bill of Rights would provide stronger protection for individual liberties than the current Human Rights Act- for example, increased police powers and control orders show how easy our liberties can be threatened.

Codification would mean greater clarity about the rights of citizens and the powers of government — for example clearing up the uncertainty arising from conventions governing the power of the PM, the

circumstances in which ministers should resign and what happens in the event of a 'hung parliament' with no clear election winner.

A constitutional court — as in Germany and the USA — staffed by senior judges with expert knowledge, would be able to assess the constitutionality of actions by Parliament and the executive, judging their behaviour by a clear set of rules. This would increase the legitimacy of the political process.

Against

This would put an unjustified degree of power in the hands of unelected, unaccountable judges who may be out of touch with public opinion. A codified constitution would be a direct challenge to parliamentary sovereignty, on which the UK system of government has been founded because it would bind future parliaments.

Much of the historic constitution is written, with acts of Parliament and works of authority providing clear guidance. Few codified constitutions are self-explanatory and (as in the USA) they require extensive interpretation.

A strong executive can act decisively in times of emergency- such as a terrorist threat. They can also respond quickly to changing circumstances.

An uncodified constitution is more flexible and can be modernized or reformed more easily, for example, the reforms to the UK constitution after 1997 such as devolution.

There is almost no public demand for codification and it may well be too difficult since there is no political agreement about what a codified constitution or Bill of Right should look like.