A British dilemma; To codify or not codify…

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Introduction

The UK constitution is the system of rules that shapes the political governance of the country. It is not contained in a single document, but its principles have emerged over centuries from statute, common law, conventions and the royal prerogative. “The Constitution is more than a written text.  It embraces the entire global system of rules and principles which govern the exercise of constitutional authority.  A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading”.[1] This definition is more suitable for the UK constitution, as we have an uncodified doctrine which has multiple sources. Furthermore, the wider definition implies that the constitution goes beyond text and resembles more of a system than a document.  However, since the Brexit referendum many legal theorists have pointed out a ‘constitutional crisis’ and some advocate for codification of the constitution. However, this argument is misleading. I believe that the UK constitution should remain uncodified.

Part I: A Balance of Power

One reason why the UK should retain its uncodified constitution is because a greater separation of power would allow the judiciary to exercise more power than necessary. The 2010-15 Parliament introduced a new committee, the House of Commons Political and Constitutional Reform, which made an inquiry into the advantages and disadvantages of introducing a written constitution. It pointed out that a written constitution would create more litigation in the courts and politicise the judiciary, as it would require them to pass a judgement on the constitutionality of the government legislation. This argument is extremely convincing, as it is simply undemocratic for nine unelected judges to strike down or create new law. However, I recognise Lord Hailsham’s argument of the ‘elective dictatorship’ and the inadequate checks and balances that may be prevalent within our current system. Nevertheless, as Tomkins argues, Britain has no need for a written constitution as ours has illustrated it is working well.[2] The 2016 referendum required an Act of Parliament to allow the government to trigger Article 50; and so the Supreme Court ruled that this required fresh, bespoke legislative authority. Furthermore, as displayed in Miller No.1[3] Brexit cannot be delivered by the executive alone; thus the power and responsibility is dispersed.[4] Overall, I believe Tomkins’ argument is increasingly compelling and that the UK constitution does not need to be reformed as the current checks and balances remain adequate.

Part II: Flexibility v Entrenchment

Another reason why the UK constitution should remain uncodified is that it offers greater flexibility. If we look at jurisdictions such as the US, France or India, there was a revolution which led to the creation of a codified constitution; which often is very rigid in its structure and reacts negatively to change. However, British history never quite developed the same way which has allowed us to have a more organic doctrine.[5] In 1972, the UK Parliament introduced the European Communities Act, which allowed the UK to become a member of the EU. Similarly, it was the Parliamentary Act (EU Withdrawal Act 2019) which enabled our departure from the EU. On both occasions, referendums were held to ask the people if they wanted to join or not. Having an uncodified constitution allowed Parliament to respect the decisions made by the people and enforce them. However, I recognise there are some limitations of an uncodified constitution. As Scott highlights, “Although, we have human rights laws; without effective entrenchment, these rights cannot be protected against repeal. The EU Withdrawal Act excludes the EU Charter of Fundamental Rights from future UK law”.[6] Therefore, there is an argument that Brexit may threaten the status of fundamental rights and if we were to introduce a codified doctrine it would provide better security. Nevertheless, a codified constitution would create huge obstacles for the government when trying to implement and bring about huge social change.[7] For example, in the USA, the inclusion of the Equal Rights amendment is an extremely contentious issue and, despite public support for it, the government fails to follow through. Whereas, the UK were able to follow referendum results and implement a change that the people wanted. Overall, I find McNaughton and Walker’s argument more convincing as the unwritten constitution provides for the doctrine being more organic and susceptible to change.

Part III: Parliamentary Sovereignty

The final reason why we do not need a codified constitution is because the constitution as it stands allows direct democracy as well as representative democracy to thrive.[8] As displayed during the Brexit referendum it was the people who voted to decide whether the UK should remain part of the EU. Although the decision was not binding on Parliament, they decided to uphold the public vote and passed an Act confirming the departure. However, I recognise Montesquieu’s theory about how the branches of the government should be separated to avoid a concentration of power in one branch; as this may lead to tyranny. Additionally, as stated earlier, many jurisdictions such as France and the US have adopted this approach and it may have worked. However, I strongly believe that it does not apply to the UK. For example, in Cherry,[9] the doctrine of parliamentary sovereignty was upheld in order to prevent the executive acting in a tyrannical and dictatorial manner. It allowed the representatives of the people to pass and scrutinise the Brexit deal, ensuring it benefited the people. Therefore, Yowell’s[10] belief that Brexit has triggered a constitutional crisis is significantly overstated. As a result, I believe there is a more persuasive motion to retain the uncodified constitution.

Conclusion

To conclude, there is more evidence to suggest that the UK constitution does not need to be codified. The aim of the constitution is to establish and regulate the exercise of power of all branches of government and also to regulate the relationship between state and citizen. I believe that our constitution meets these requirements and although Brexit has been a political crisis, it is unfair to suggest it has been a constitutional one. Why fix something that isn’t broken?


[1] Reference Re Secession of Quebec [1998] 2 SCR 217.

[2] Sionaidh Douglas-Scott and Adam Tomkins, ‘Does Britain Need A Proper Constitution?’ (Prospect Magazine, April 2 2019) <https://www.prospectmagazine.co.uk/magazine/does-britain-need-constitution-debate-sionaidh-douglas-scott-adam-tomkins> accessed 17 May 2020.

[3] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5.

[4] Adam Tomkins, ‘In Defence of the Political Constitution’ (2002) 22 OJLS 157–175.

[5] Neil Walker, ‘Our Constitutional Unsettlement’ (2014) Forthcoming in ‘Public Law’ (Summer, 2014), Edinburgh School of Law Research Paper No. 2014/11 <https://doi.org/10.2139/ssrn.2419437> accessed 17 May 2020.

[6] Sionaidh Douglas-Scott and Adam Tomkins (n 2).

[7] Neil McNaughton, UK Government And Politics (Hodder Education Group 2017).

[8] ibid.

[9] R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland (Scotland) [2019] UKSC 41.

[10] Paul Yowell, ‘Britain’s Constitutional Crisis’ (First Things, 26 September 2019) <https://www.firstthings.com/web-exclusives/2019/09/britains-constitutional-crisis> accessed 17 May 2020.

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