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Pros and Cons of codifying UK constitution

Unlike other countries that had chosen to adopt a formal and written constitution for a variety of reasons.

pros-and-cons-of-codifying-uk-constitution

Unlike other countries that had chosen to adopt a formal and written constitution for a variety of reasons, UK has a unique feature of having an unwritten constitution in a dispersed form. It has been under a debate from decades, whether to codify the constitution or to leave it in a way it is. Many academics and people are in favor of the argument to codify the constitution while on the other hand many favors the evolving feature of the UK constitution and are against to codify the unique constitution of UK. This essay will focus on both, for and against the argument of codification.

Many academics are in favor to codify the constitution of UK. They suggest the government to bring a major reform in the form of codifying the constitution. R. Brazier in ‘how near is a written constitution’ suggested the government and called the politicians as midwives of the constitutional change, the change is impossible unless the political party delivers it while in government and despite them all reforming energies are of limited practical significance. Various attempts had been made by a number of governments e.g. Coalition government by extending the reform era, fixed term parliaments, succession of the monarch and recalls of MP’s. Conservative government also attempted to enact certain laws e.g. House of common boundary changes, British bill of rights, new labor method of reform which is now embedded etc. Moreover, the opinion poll also favored and supported the codification of constitution.

United Kingdom, with an unwritten constitution as considered to be a unique feature of the country, needs proper codification in a single document to bring certainty and stability in the law. World Justice Project’s rule of law index (2014) noted the fact that no law of UK is entrenched, which creates possibility for the significant constitutional change with the change of government. Regarding the index, UK scored 0.74 on a scale of 0 to 1 when measured for amendments made.

Furthermore, the constitution’s basic rules also do not exist in legal form but the actors follow the unwritten traditions and understandings. Additionally, the constitution is so technical in nature that an ordinary person cannot easily understand and could access. It needs to be codified in way which is understandable and accessible to every citizen so that every citizen knows his legal rights.

It has been observed till 17th century that the parliament is overpowering in a way that they could legislate anything they want without any limitations and restrictions. The so called traditional parliamentary sovereignty should be replaced by a written constitution to define the scope and boundaries of the parliamentary powers. Despite of overpowering the parliament the citizens should be given more powers to preserve the democracy in true manners. Moreover, the role of executives, legislature and judiciary should be distinguished and codified.

The present constitution in operation lacks the separation of powers among judiciary, legislature and executives in its true form.The prime minister under the unwritten constitution has been overpowered like a dictator. Additionally, the check and balance on ministers is full of variations. The only solution to these problems is to codify the constitution in a way which clearly defines the boundaries of three institutions to bring efficiency and effectiveness in the operations and monitoring as well. Political parties in a government becomes against the codification as they do not want to limit their powers (R. Brazier, Constitutional Reform: Reshaping the British Political system).

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Furthermore, codifying the conventions and prerogative powers will replace the grey areas in the law and will create a certainty and clarity in the constitution. Moreover, preparation of the written constitution will give an opportunity to dissolve the number of reforms proposals e.g. Bill of rights, House of Lords strengthening, creation of the new office of Prime Minister and the future of monarch will be settled as well. Additionally, it will advantage the citizens in a better manner by considering the HRA while codifying the constitution as argued by V. Bogdanor, ‘Our New Constitution’, that HRA may prove to be the cornerstone of an incipient codified constitution, devolution will render that constitutional (sic) quasi-federal in nature.Such a written document will prove to be a proud for the UK and will become an identity both nationally and internationally.

Apart from the advantages there exist many disadvantages to the codification of constitution. The existing system of government and its unwritten constitution works well and also it is impossible to codify the constitution without changing it. The advantage of existing system is its evolutionary feature which easily adapts to changing social and political conditions. However, the codified constitution will bring up rigidity in the system. It will consequently give a power to the courts to review the constitutionality of particular section in Acts of parliament and it will be a question on elected parliament from unelected judiciary.

Furthermore, written constitution might also politicize the judiciary to form judgments on questions of pure political matters. Moreover, the advocates of written constitution argue that a judicial control over the government is needed. It can be considered as a fallacy since judiciary has a power of judicial review to invalidate administrative actions and provision in parliamentary enactments which has been increases substantially in recent years.

Regarding the advocates of the written constitution, there is an insufficient check and balance on decisions, policies and actions of the executives but the reality is different as the executives are always under pressure of opposition in HOC, Intraparty dissent from the backbench members, the ability of HOL to postpone and hold up legislations, pressure from mass media and the political pressure from the people by not voting in the next election.

Furthermore, the codification of the constitution will still need to include the elementary guiding principles of the existing constitution e.g. judicial independence, Parliamentary sovereignty and rule of law. The existing doctrine of separation of powers is in reality a mix and sharing of powers among the institutions which is working efficiently in its existing manner. Codifying such doctrine will result in rigidity and strictness and will be affront to the British constitutional tradition.

Moreover, codification will require a huge amount of time and efforts to switch into the codified system. Additionally, it will also cause a disruption to normal working of government and all branches of the state due to substantive reform. Such kind of reforms only came into existence after a successful invasion or after a revolution or, due to failure of the policies in the system which is not a case in UK and it does not require a fresh start.

In conclusion, no one can ignore the benefit attached to codification to bring certainty and increase the transparency in the constitutional rules governing the UK. However, in my opinion the un-written constitution is perhaps more democratic and flexible in nature. It might be very difficult for UK to adopt an entrenched constitution. Moreover, it is a long process which will lead to disadvantages more than the benefit. The UK constitution is based on Parliamentary supremacy, ultimately based on the democratic will of the people as expressed via election. So, it should be left in a way it is.

© 2022 Wajid Shah

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