Essay Plan: Should the UK have a codified Constitution?

Evaluating the view that the constitution should be codified and entrenched.

 It warrants reconsideration, especially in light of recent legislative acts, the chaos of the Johnson/ Truss administarions, unresolved issues over devolution, the use of referendums, and the implications of the COVID-19 crisis. 

The focus will be on how different countries make decisions and the potential advantages of a codified constitution. This essay will argue in favor of a codified constitution, considering it a timely and appropriate development.

To begin, it is essential to define key terms. A codified constitution is contained within a single document, serving as a primary source of constitutional law. In contrast, the UK has an uncodified constitution, which is derived from multiple sources, including statutes, customs, conventions, historical texts, principles, and judicial decisions.

The question also involves the concept of entrenchment, which refers to the difficulty of amending the constitution. An entrenched constitution requires a supermajority or referendum for amendments, as seen in the US, France, and Ireland. The UK, however, has a non-entrenched system where constitutional changes can be made through simple acts of Parliament.

Arguments for and against a codified constitution 

This discussion will address several key issues: whether codification would undermine parliamentary sovereignty, the flexibility of a codified constitution, the capacity for governments to govern effectively, and the politicization of the judiciary. The direction this essay will argue is that a codified constitution would not diminish parliamentary sovereignty but could enhance the protection of rights and limit executive overreach.

Parliamentary sovereignty remains a cornerstone of British democracy, as confirmed by the Miller case, which clarified that only Parliament, not the Prime Minister, could trigger Article 50. Critics argue that a codified constitution might threaten this principle; however, unchecked executive power has often led to the erosion of rights, exemplified by recent legislation such as the Public Order Act 2023 and the Elections Act 2022. A codified constitution could establish clear rights and legal protections, making it more difficult for laws to encroach upon fundamental freedoms.

Regarding flexibility, opponents claim that a codified constitution would be inflexible. Nonetheless, countries like France have amended their constitutions multiple times, demonstrating adaptability. A semi-entrenched system could be adopted, where certain laws require supermajorities, thus balancing stability with flexibility. During emergencies, such as the COVID-19 pandemic, countries with codified systems have demonstrated the ability to respond swiftly without sacrificing constitutional principles.

The concern that a codified constitution would entrench executive power is valid; however, proper safeguards and oversight mechanisms can prevent this. For example, an entrenched system could serve as a check on executive overreach, as seen in the US and other nations. Additionally, a codified constitution would clarify the roles and limits of political actors, including the Prime Minister, and reinforce the independence of the judiciary.

The politicization of the judiciary is often cited as a drawback of codification. Nonetheless, the UK’s independent Judicial Appointments Commission helps maintain judicial neutrality. A codified constitution could further formalize this independence, reducing political influence over judicial appointments and decisions.

Finally, concerns about uncertainty over who would write the constitution can be addressed through inclusive processes such as constitutional conventions or citizens’ assemblies. Many countries have successfully drafted constitutions through such participatory methods, ensuring legitimacy and broad support.

In conclusion, a codified constitution would strengthen the rule of law, protect individual rights, and provide clarity and stability. It would not necessarily politicize the judiciary or diminish parliamentary sovereignty if designed appropriately. Instead, it would modernize the UK’s constitutional framework, aligning it with best practices observed in other democracies, and ensure that the country’s constitutional arrangements are fit for contemporary challenges.