Does the UK Need a Codified Constitution

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  • Created on: 27-01-17 15:50
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  • Does the UK need a codified constitution?
    • YES
      • Our uncodified constitution makes it difficult to learn about our rights, and how government works
        • In America it is easy for school children to learn about how their government works and their constitutional rights because their is a codified constitution
          • The public understand the different branches of government and that the Bill of Rights explains the rights of the people.
        • But ours is much harder to understand because our constitution is so scattered throughout statute laws, common law, unwritten conventions, EU law and authoritative texts
        • However... the introduction of the Cabinet Manual in 2011, and Human Rights Act (1998) has helped.
          • It has unofficially codified many of the most important rules and conventions of government and even without parliamentary approval and legal standing it is the most official resource produced.
            • Especially useful when the media was speculating over the possibility of a hung parliament in 2010
            • Similarly, the Human Rights Act (1998) has given the people a clear and concise list of rights defensible in UK court.
              • But these aren't fundamental laws and the UK Supreme Court cannot abolish any law that goes against them
      • We are overly reliant on unwritten conventions that are not  legally enforceable, and few   understand.
        • It was argued that the House of Lords had broken many conventions (e.g. Salisbury Convention and the Commons 'financial privilege') when the House voted to block its tax credit reforms in 2015.
          • Many in the Lords however took an entirely different view, leading to a brief constitutional crisis and the government finally backing down
        • The 2015 Strathclyde Report argues the problem with relying on unwritten conventions rather than a legally binding constitution is that 'Parliament sometimes forgets why they exist or the implications of casting them aside'.
          • While many conventions have been followed for centuries they are not legally enforceable.
            • Many believe it is a risk that unwritten conventions such as those that detail the role of the monarchy, use of ancient prerogative powers and under what circumstances the UK can enter armed conflict can ultimately be broken.
              • In recent years there has been a growing convention that the Prime Minister should seek parliamentary approval
      • A codified constitution is needed to establish a proper separation of powers
        • The US constitution establishes a clear separation of powers.
          • Any member of the executive branch cannot also be a member 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 Houses 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
        • But the US has a much clearer separation of powers but this can lead to a gridlock of powers in between the president and the Houses of Congress when they can't reach an agreement
          • Any attempt to weaken or strengthen the powers of the Hoc or HoL could cause issues for a party trying to carry out their manifesto
            • A codified constitution would also politicise the judiciary, which would need to interpret the language of static codified constitution and determine whether the laws are in line with the constitution
              • This could lead to accusations of judicial activism where judge interpretations are questioned as they could be trying to promote their own political agenda
                • Not only that but the decisions are also very divisive as the US Supreme Court has come to learn
              • The House of Lords can only delay bills, and has even more limited power over 'money bills'
    • NO
      • Our constitution has yet to provide a national crisis; it is an unnecessary risk to abandon it now
        • Most of the codified constitutions that exist in other nations were written at a time or revolution or crisis or the granting of independence
          • Non of these circumstances are apparent at present in the UK and so we would be abandoning a constitution that has so far served us well
            • Our main two parties cannot even agree on how to reform the HoL, trying to draft a new codified constitution swiftly and effectively would be almost impossible
              • Trying to write a new constitution would require lots of time and resources and our time may be better spent dealing with existing issues such as the economy and threats to national security
        • But while the UK is not on the verge of revolution it is arguable that recent constitutional reforms such as devolution of powers, our EU membership and the Human Rights Act
          • These have fundamentally undermined the core values of the UK constitution  (parliament's sovereignty and the unitary state)
            • It would make sense to draw up a new clear codified constitution which can make sense of these incomplete reforms and their unintended consequences the West Lothian Question for example
      • 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 how to respond
            • Parliament tends 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 EHCR to challenge legislation.
                • UK minsters must also submit a 'statement of compatibility' to explain how their bill complies with the EHCR
                  • Although these statements are not legally binding, it stills suggests that Parliament is behaving  as if the HRA is fundamental law, even if legally it is the same as any other
        • But these rights are not entrenched and could soon be changed by Parliament
          • In these US, the Bill of Rights lists the rights belonging to people and the Supreme Court can strike down laws that undermine them
            • But in the UK our supreme court cannot strike down any un-constitutional laws as we lack a codified constitution and Parliament is sovereign which some argue makes it hard for the Supreme Court to uphold our rights
              • Judges can issue statements of incompatibility but it is then up to parliament to decide how to respond.
                • Some argue that whilst the Human Rights Act  usefully codifies our rights it does not entrench them and a majority government can easily amend our rights
      • The flexibility of our uncodified constitution is an important asset.
        • The US constitution has been amended 27 times and 10 of those times were made to include the Bill of Rights
          • But the UK constitution has evolved throughout history and because we have Parliamentary sovereignty it can regularly be amended
            • EXAMPLES: the devolution of power to Scotland, Wales and N. Ireland, and the passage of the Human Rights Act (1998)
            • Our constitution also gives Parliament the flexibility to respond to crises, without being limited by higher constitutional
              • EXAMPLE: In america the constitutional right to bear arms has made it increasingly difficult for congress to respond to the rising number or mass shootings  but in the UK parliamennt was able to ban the majority of handguns with the support of the public in reponse to the Dunblane Shooting 1996
            • As society continues to change at  a rapid pace, a codified constitution could soon become out of date
              • The US constitution is intentionally hard to change- it requires a 2/3 vote in congress and 3/4 of the states to agree as the founding fathers wanted to preserve the amendments
                • But the UK can change their constitution just by passing a bill but their is a growing convention to hold a referendum but as a convention is not legally binding, there is no guarantee this additional step will always be taken
  • A codified constitution would also politicise the judiciary, which would need to interpret the language of static codified constitution and determine whether the laws are in line with the constitution
    • This could lead to accusations of judicial activism where judge interpretations are questioned as they could be trying to promote their own political agenda
      • Not only that but the decisions are also very divisive as the US Supreme Court has come to learn
  • Remove the flexibility and adaptability which has helped

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