A the average constitution’. A written constitution could also

A ‘Constitution provides a clear, accessible and coherent account of the body of fundamental rules and principles according to which the state and society are constituted and governed’, The British constitution is uncodified meaning it is ‘not unwritten- a good part of it is written- but it is uncodified’. The lack of a constitution in the United Kingdom has gathered considerable attention, especially in light of contemporary challenges. Many think that a codified constitution, being ‘a written constitutional document which has been consolidated into a single text and formally adopted’ would be more suitable, suggesting it would assist security as the constitution would have more clarity, it would protect rights and hasten the pace of processes. Others disagree supporting that an uncodified constitution allows for more flexibility, as specific rules would not be set, the constitution could make rules to fit with the changing society. This essay will discuss these issues, featuring that the codified constitution overall has more compelling arguments, especially in regards to the British Constitution better meeting contemporary challenges. As explained the constitution is not codified, but partly written, the reason behind this is that the UK has evolved fairly securely, the constitution reflects this relative stability of the British policy. Having a fixed constitution was not suitable as laws were not constantly changing, due to no specific ‘constitutional moment’ in its recent history. Codification would primarily help the constitution as it would provide clarity; the current unwritten constitution is formed of many statutes which are outlined in Thoburn, the earliest being the Magna Carta originating from 1215, since the constitution has sources from 800 years ago, it is scattered and fragmented, leading to a lack of clarity and cohesion. Consequently, codifying the British Constitution would be beneficial since a constitution that yields clarity prevents citizens from being able to understand and engage with the constitution given it is not in one document, which would be easier to read and locate, especially as currently the word count is ‘ten times longer than that of the average constitution’. A written constitution could also have an educative role, in establishing a British identity, similar to what the American constitution has done, it states ‘the right of citizens of the United States to vote shall not be denied … by the United States’. This would be helpful for citizens to know their rights and also help address the development of multiculturalism, since the perception of British identity is more and more in need of being reaffirmed due to its changing nature. Due to the fragmented constitution it is reasonable to say that the common identity is lost as it is so strenuous to find. The Green Paper highlights the ‘need to ensure that Britain remains a cohesive society, confident in its shared identity’, so key values of Britain need to be established and codification would fix these well in place.Yet, codification could be redundant as citizens can already find their rights within the Human Rights Act 1998, whether the public would truly appreciate a codified constitution is debatable, but undoubtedly the public are unlikely to research into their constitution after it had been codified and simplified, so perhaps the effort into creating a constitution is unnecessary.However, codification would further coherence of the constitution as it could specify and state the powers and limits of the executive so it could exercise its power lawfully. This could have assisted the process of Brexit, the British decision to leave the European Union (the EU). Since there are grey areas within the constitution concerning the limits of the certain principles of the constitution, such as the prerogative powers, being ‘the special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity’. This relates to Brexit as the ambiguity of the prerogative powers’ authority, led to the neglectful decision that the government made; they attempted to use the powers to trigger the process of Brexit but could not as it was unlawful, given the Parliament only has the power. This negligence was met with considerable conflict as some believed that ‘it would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the executive (government) to act on an advisory referendum without explicit parliamentary approval’.The specific provision in question is Article 50 within the European Union (Notification of Withdrawal) Act 2017, which is a treaty provision that initiates the UK’s exit from the EU. However there’s uncertainty about the article as it is fairly new and has not been confronted before, especially by a member state that has an uncodified constitution, given it suggests withdrawing from the EU through ‘constitutional requirements’. Bagehot outlines that this ‘create(d) rifts and ambiguities for which no clear precedent exist{ed}’. Therefore the issue could have been resolved by codification which would indicate that only the Parliament has the power to trigger Article 50. Considering prerogative powers can be used in foreign affairs, which relate to the EU, but Article 50 also concerns citizens’ rights, as it involves the movement of people, which prerogative powers can not act on, as it involves domestic law which only Parliament can act on, as the supreme law making body, this was outlined in R (Miller). This would also assist the constitution in meeting the contemporary challenge better as with a codified constitution, the UK would have ‘its own constitutional   requirements’ to act ‘in accordance’ to when leaving the EU.Although, codifying would have helped the process of Brexit considerably, now that we are currently in the process of meeting Brexit, it is too late to codify the constitution since it takes a few years to draft it together given it is a thorough process of combining and simplifying thousands of documents. However, in hindsight it could have avoided ambiguity, but we now have to focus on meeting the challenge with an uncodified constitution as this is reality.Yet, if the British constitution was codified practicality would be heightened substantially, since the process of Brexit would be considerably easier, given it would have prevented deliberations over uncertainty since the constitution would have ‘constitutional   requirements’ to follow, whereas there is hesitation with the uncodified constitution given no requirements exist. An approach to describing the legislative power within the codification could be similar to ‘the people shall exercise the legislative power through a Storthing {supreme legislature like parliamentary sovereignty},’as found within Norway’s constitution. It continues breaking down its powers; ‘to enact and repeal laws, to levy taxes, imposts, duties…’ This would fit the British Constitution well and would make future challenges easier and faster than before due to further clarity between the roles of the executive and legislative, leading to processes becoming more achievable.Until now, codification seems marginally favourable as it secures security within the future of the constitution, whereas an uncodified constitution brings uncertainty. An uncodified constitution harms the UK’s democracy, since the constitution is constantly open to interpretation by the government of the day. Given Brexit is about retaining control, this does not add up as the process to initiate the process was attempted by the government, in the hands of a few. A Parliament that is deprived of power is damaging for the democracy of the UK, and only a written constitution can conserve our shared values from the whims of the government. Primarily, if the government are already working beyond their powers (ultra vires), little is preventing them from abusing power further since the constitution, being unwritten has no fixed rules to abide by.  However, clarity does exist within the current uncodified constitution, given that the constitution does function and is not entirely broken. Above all, there is no public outcry for a codified constitution, some academics feel it would enable the a better performance of the constitution, but no campaigns or overwhelming upset over the issue exists, suggesting the current constitution is not entirely inadequate. Yet, the understanding of the constitution within the public is limited, given the study of politics is not compulsory to teach within British schools, consequently the lack of public outcry could be due to the lack of understanding of our constitution. Despite this, the UK is democratic and generally follows the public opinion so should leave the constitution untouched, due to no upset.Conversely, codification would help spell out the roles in the parliament, such as the role of the Prime Minister, although mentioned in the uncodified constitution in ’16 provisions’, none specify the central role played by the Prime Minister in the British government. Codifying the role would be beneficial as it would protect the constitution from abuse and assure the rights of the British citizens, which is critical within a democracy, where the citizens’ rights are significant. Exploitation of the constitution would be avoided if codified,  since a fixed idea of the powers that the Prime Minister can exercise, would speed up processes and would prevent indecision. It would also avoid any future injustice of power, as the powers which the Prime Minister can use would be limited to those fixed in the written constitution, so if an extremist came to power they would not be able to apply their radical ideas. For example the character of Tony Blair who has been criticised for abusing power within ‘his approach to the Iraq war’, the British constitution was easy to abuse since there were no fixed rules or role of the Prime Minister to follow, which a codified constitution would outline, restricting arbitrary powers and protecting citizens’ rights.Yet, there has not been a substantial threat of a dictator to the UK government, so codifying the role of the Prime Minister would prevent an abuse unlikely to happen, given the political stability of the UK. Furthermore entrenchment could be implemented to further prevent an abuse of power and protect democracy within Britain, since if the ‘rights of citizens were compromised’, democracy would not be maintained. Entrenchment is the concept where a provision becomes difficult to change as certain steps need to be taken to alter a provision, which differ those of a normal provision. Overriding an entrenched provision may require a supermajority or referendum, rendering amendments incredibly difficult, sometimes even impossible to pass. Entrenchments can be implemented within an uncodified constitution so arguably this a less intrusive way to secure democracy and security.As mentioned the present-today constitution has not been abused, there is reason to state that no safeguard is needed as the likelihood of an extremist coming to power is very little. Additionally, there is no surety that a codified constitution will absolutely prevent arbitrary powers, as within North Korea they have a codified constitution which has a thorough human rights policy, yet citizens’ rights are compromised: A study was conducted, asking 103 defectors if they felt their human rights were violated, ‘74.7 percent’ said they felt their rights were breached. So powers can still be abused when rules are fixed in a codified constitution, as Article 67 within their constitution states, ‘citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association’, which contradicts the information found in the study above.Conversely, codifying the constitution would maintain relations and protect the union when regarding the contemporary challenge of devolution, where there is obscurity over what powers the devolved administrations have. Codifying the Sewel convention would be helpful in the meeting devolution, given the convention allows the devolved bodies, being Scotland, Wales and Northern Ireland, to have a say on laws that directly affect them. This would create more harmony amongst the union and strengthen it itself, as there have been threats from Scotland to leave the UK if there is any unwillingness from the UK government to ignore the convention, which risks the durability of the United Kingdom. The Sewel convention was established so that Westminster would not ‘normally’ legislate on devolved matters in Scotland, Wales and Northern Ireland. Emphasis should be placed on ‘normally’ as this reflects the nature of the convention and how they ‘are not in reality laws at all since they are not enforced by the courts.’ Subsequently, Westminster can ignore conventions, being more ‘understandings, habits or practices,’as they are not recognised as legal rules by the courts, but by codifying the convention it has to be implemented more effectively, which would result in a fairer and clearer diffusal of powers which ultimately would protect the UK’s unity. Additionally, with Brexit comes changes in the UK law and practice and at some point, legislation to cement these amendments will inevitably engage the sewel convention; so the government would be foolish not to involve the devolved administrations in the processes of negotiation, given some necessary changes cannot be made effective across the UK without the cooperation of the devolved administrations. Clearly, the devolved administrations must be consulted substantively in the process of leaving the EU, not to do so would be bad governance, as the administrations will be directly affected by the alterations of law so their presences in deciding these alterations is crucial. If conventions are not codified, the unity within the UK would tarnish and the process of Brexit would become more complicated, so codifying the constitution is necessary to ensure the future of a harmonious UK.However, there is reason to believe that codification would not be able to resolve the difficulties of devolution. Given the considerable time taken to draft and create a constitution  which features the sources from the UK’s current unwritten one, especially with it being over 800 years old and deriving from thousands of sources, codification would not be able to meet the devolved powers that Scotland wants fairly immediately. The timings of a constitution are not practical, notably the average lifespan of a constitution is ‘seventeen years’, for document that takes so long to draft the sustainability of the constitution is slight. The question emerges if whether drafting a constitution combining of thousands of documents spread across 800 years is worth creating if it could need amending only a few years later.It is apparent that the issue of codification ‘is highly divisive in the doctrine of British constitutional law’, codifying the constitution gives the appearance that it will enable the British constitution to meet challenges, notably Brexit and Devolution, yet the practicality of this is constrained as it is almost too late to impact the challenges. However on a broader perspective it seems promising, yet the resources and effort used to create a constitution seems vast, when one that already functions already exists. To finalise, the United Kingdom has always been unique amidst democracies since it lacks a constitutional document yet it is reasonable to say that the constitutional architecture of the United Kingdom works currently so should not be disturbed.


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