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A codified constitution

Public law (University of London)

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A codified constitution where the fundamental or basic laws establishing the framework of
government are written down, with the major duties, powers and functions of the institutions of
government and the rights and duties of individuals codified. An example of a codified
constitution is the USA’s constitution, which is a clearly defined constitutional settlement.The
UK’s constitution cannot be found codified in one document, but instead derive from a number
of written and unwritten sources. These include accumulated conventions, Acts of Parliament,
works of authority, common and EU law. It is increasingly common to hear that the UK's
constitution is "becoming more codified" - in reality, more elements are now written, but that is
not the same as being more codified.

In recent years there has been much debate about the need for a codified (written) constitution. In
spite of the praises heaped on the mysterious virtues of the British Constitution, it’s unwritten, or
uncodified, manifestation is not universally acclaimed.Lord Hailsham Lamenting the excessive
concentration of power in the Government he stated in The Spectator Dimbleby Lecture 1976: ‘I
have reached the conclusion that our Constitution is wearing out. Its central defects are gradually
coming to outweigh its merits. I envisage nothing less than a written constitution for the UK.

The fact that the constitution is uncodified means that it can never be said to be entirely known,
it is always subject to interpretation and dispute. In Britain it is sometimes very difficult to come
to a clear understanding of when a government is acting ‘constitutionally’ or not. Two areas of
the constitutional framework are of particular concern: conventions and prerogative powers.
Conventions are a grey area of the constitution. No rules exist to determine what is or not
convention. ? According to Turpin ‘’Conventions are always emerging, crystallising and
dissolving, and it is sometimes questionable whether a convention has been broken or has simply
changed. If the constitution is codified and conventions codified as part of the written
constitutional framework it would end this uncertainty and vagueness (Turpin). Like conventions
much of the law concerning the prerogative is obscure. Some prerogative powers are very wide
and difficulties arise when courts are asked to decide when an ancient prerogative applies in a
new situation

Critics of the uncodified constitution argue that in the UK the term ‘unconstitutional’ has no
defined legal content. Supporter of the codified constitution assert that if all rules of the
constitution are codified in legal form all breaches of the constitution would be challengeable in
courts like USA, France or India. Dicey distinguished conventions from constitutional laws in
two respects: (a) they are not recognized by the courts and (b) they are not enforced by the
courts; whereas breaches of law are recognized and enforced by the courts. Although Jennings
criticized Dicey’s approach/views the distinction drawn by Dicey regarding enforceability seems
to be vindicated by case law (Adegbenro v Akintola (1963), Madzimbamuto v Lardner Burke
(1969); Re Amendment of the constitution of Canada (1982)). There is not a single case in which
the courts have enforced the breach of a convention including A G v Jonathan Cape Ltd (1976).

A codified constitution lays down a special procedure under which the entrenched constitution
can be changed.The purpose of such entrenchment is to protect key provisions (e.g. those
relating to basic civil liberties) from passing whims and caprice of those who hold political office
from time to time.The UK’s uncodified constitution has no entrenched restraining procedures.

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Critics of the traditional uncodified constitution regard it as outdated and undemocratic.

Prerogative powers exercised by the government on behalf of the Crown are not only ill
defined (like conventions) but also uncontrolled. Codification of the British Constitution
would put most prerogative powers (if not all) on a statutory basis and this would
increase the supervision of the exercise of the powers more efficiently by the parliament
(and also the courts). A codified constitution would also be able to tackle the issues of
relationships with local governments and regional governments. It is alleged that there is
too much power at the centre.A codified constitution would also tackle the centralization
of power by setting out the powers and functions of the central government and
subnational governments. Subnational governments would enjoy constitutional
protection.A codified constitution is also likely to tackle the problem of elective
dictatorship. Lord Hailsham in his Dimbleby Lecture 1976 described Britain as an
‘elective dictatorship’, referring to the fact that, once elected, the leadership of the
majority party in the House of Commons can do more or less what it wants without
constitutional checks and balances.

Supporter of the traditional constitutional arrangement recognizes that improvements are

required but believe that reform should be limited and pragmatic. Conservatives view the
constitution as an organic body of rules rather than an artificial creation. It has evolved
over time and reflects the history and enduring values of the British people.The organic
view argues that a constitution grows and develops naturally like a living organism; for
thinkers of this school it is a thing of untouchable beauty. Edmund Burke suggested that
the constitution should be treated with religious awe as a repository of the collective
wisdom of the ages.Blackstone’s view of the constitution with its veneration of the past
would belong to this category and the cover of Sir Ivor Jennings Book the British
Constitution (1966) is actually adorned with a picture of a spreading oak.

Supporters of the traditional uncodified constitution see flexibility as another positive

feature (as the mechanism of the constitution through which the constitution adapts
smoothly and speedily). Certainly, it is true that the British constitution has been able to
adapt to major changes. Conventions have the advantage that they allow constitutional
change without requiring a formal change and allow the elected government to exercise
powers flexibly in response to political realities. By contrast, it can be difficult to change
a written constitution. A single codified constitution (especially an entrenched
constitution) is subject to interpretation and gives rise to endless and pointless litigation.
If the British Constitution is codified the great virtue of flexibility would be sacrificed: no
longer could changes take place imperceptibly to accommodate restrained social
developments.

Flexibility is also provided by prerogative powers. The existence of prerogative powers

enables the executive to take immediate decisions without need for Parliaments approval,
in circumstances where prompt decisions are required. If the constitution is codified and
with it pps there will be serious implications on this flexibility.

The vital quality of the traditional uncodified constitution is that it provides for a strong
and effective government. The doctrine of parliamentary sovereignty establishes supreme

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authority within the political system. The control of Parliament by the core executive
gives the governing party significant control over the legislative process and therefore the
ability to carry out its electoral mandate without delay and without encountering the
hindrances of too many constitutional restraints. An entrenched codified constitution,
would remove the most basic feature of the British Political System - the sovereignty of
Parliament. Laws and principles that have a higher authority than other legislation would
take away what Walter Bagehot in 1867 called the ‘efficient secret’ of the system.

Supporters of the traditional constitution also argue that the current arrangements provide
adequate safeguards to control the power of the central government.Tony Blair and
Gordon Brown introduced the most important package of constitutional reform in modern
British history. Many of the rules, procedures and principles of the traditional were
affected. Few key institutions remained untouched. Devolution, new electoral systems (at
many levels), the Human Rights Act 1998, Decentralization by changes to local
government, Parliamentary reform, House of Lords Act 1999, Judiciary CRA 2005,
Prerogative powers CR+GA 2010, changed the constitutional landscape.

Labour’s reforms were subjected to criticism from two broad perspectives: a liberal
perspective that argued that the reforms did not go far enough and a conservative
perspective that held that labour had damaged the traditional British Constitution.Liberal
reformers argued that Blair and Brown had adopted a minimalist rather than a maximalist
reform agenda which should include a written codified constitution, federal state, elected
HOL, proportional rep, reform of monarchy, entrenched Bill of Rights, transfer of power
to LAs. Conservative critique argues that Labour’s reforms damaged the fabric of the
constitution so that its component parts no longer form a coherent and effective whole.
The reforms brought new problems and Devolution raised questions about government;
HRA increased the political role of the judiciary and opened up a can of worms on the
nature of rights such as privacy. The Conservatives claimed that legislative devolution
would break up the Union.

The UK has had long-established doctrines, principles and codes of conduct

that are embedded in the minds and hearts of its people. It has made the
society into what it is today and above all the obstacles faced as in every
other system, whether the constitution is written or unwritten they have
managed to develop one of the best legal systems in the world and have an
excellent system of governance.Many people believe that the system of an
unwritten constitution works and works well. It has been created throughout
the years that have seen the UK grow into what is today. It has been
developed based on not only great events but great minds of the region
giving it a distinct flavor of pride. Nothing is like its kind and it is definitely
functional.

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