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 passing of significant pieces of Brexit and Covid-19 legislation via delegated legislation with little scrutiny, has meant that MPs ‘are not providing effective oversight of major changes in these and other areas’ (Institute for Government).

■ 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.

• According to UCL’s Constitution Unit in 2022, 77% questioned in a wide-ranging poll felt they had too little influence over how the UK is governed.

Historian Linda Colley's article in the New York Times in September 2022 suggested ‘the queen’s death and the accession of a less popular Charles III will contribute to increased levels of turmoil and lead to unstoppable pressure for radical constitutional change, even a new British constitution’

Cambridge University's  Center for Public Law  carried out a research project the 'Constitutional Law Matters project' with the aim being to evaluate whether the UK constitution is still working. The the project concluded that Boris Johnson’s tenure in Number 10 and  post-Brexit political activity in general, saw a decline in the parliamentary procedures that support effective levels of scrutiny. It cites the Elections Bill that sought to ‘bring the Electoral Commission’s strategy and policy under government control’ in a bid to ‘reduce the Commission’s independence and increasing the government’s influence and power over the election process’.

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.