intro of parliament, common law, or academic

intro

The Oxford English dictionary defines a constitution as: “A
body of fundamental principles or established precedents according to which a
state or other organization is acknowledged to be governed.”1 By
this definition, every country in the world should have some kind of a
constitution, as every state has it’s own beliefs and principals that govern it.
However, a constitution is not always written into a single document, it can
come from a range of sources such as acts of parliament, common law, or
academic writings. This is the difference between a codified and uncodified
constitution.

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Codified/uncodified

A codified constitution is where “key constitutional
provisions are provided for within a single written document.”2
The United states is an example of this. The United Kingdom on the other hand
has an uncodified constitution, which means that there are no strict rules set
in a single document; parliament
is legally able to do as it pleases3.

Introducing the question.

The question
of whether the United Kingdom should move to a codified constitution is a matter
whether the benefits outweigh the detriments. Today there are only 6 countries
in the world that have an uncodified constitution, so why have we not moved to
codified? Most countries that use a codified constitution have been forced to
use it, as “when a territory gains independence or there is a radical break
with the old constitutional order, the creation of a written constitution is
almost unavoidable.”4
The United Kingdom has not gone through anything of this kind, and so we are
left with the choice.

Benefit to un codified

There are many positives and negatives to both codified and
uncodified constitutions. One of the main benefits of the current constitution
in the United Kingdom, is the lack of entrenchment. This means that our constitution
can be changed at any point by parliament however they please. However, this
idea raises the problem that a dictatorship would be possible. To control this,
without putting a stop to parliamentary supremacy, the rule of law comes into
play. The rule of law is a constitutional principal which can be seen as “an
envelope that contains a set of more specific principals”5. An
example of the rule of law being viewed this way comes from Lord Bingham, who
suggested at 8 sub rules6
including: “Laws should apply equally to all.”, “The law must afford adequate
protection of fundamental Human Rights.” And “The adjudicative procedures
provided by the state should be fair.”. The idea of the rule of law puts a
constraint on everybody, including government officials, meaning a dictatorship
could not arise.7

Con to Un codified

There are also detriments however to having an un-codified
constitution. One of these is the lack of simplicity. In a codified
constitution, the fundamental aspects can be easily laid out for anyone to find
and understand, whereas in a constitution such as the United Kingdom, it is
very difficult to understand all of the parts of our constitution and keep
track of changes to it, as it is so easily changed.

Codified reform

A codified
constitution would be detrimental to constitutional reform, as entrenchment is
solidified. It often agreed upon that issues within the constitution are more
likely to be solved with smaller changes, rather than large changes often
requiring a lengthy amendment process. This would slow development of the
constitution, and could lead to problems difficult to solve in the near future.

Why not change

The question
of whether the United Kingdom is without a written constitution ultimately
falls down to the need for it to be codified. It is common among academics for
example Dr. Andrew Blick8
and N.W. Barber, that codifying a constitution as large as ours would be a
dangerous and formidable task, which would take years of debate and it would be
hard to see what there would be to gain9.
The question also arises whether such a task would be possible at all, as
dynamic change may apply during the codification process, and so constitutional
reform would be a substantial issue. Many questions would arise such as how
simple would the codification be? Would conventions be a part of it? If so,
which ones? These questions would be very difficult to answer, and could result
in a very lengthy process, for no real gain.

 

Furthermore,
an issue with building a codified constitution would be around the main
principals of our constitution. Dicey suggested that 3 of these principals were:
“the sovereignty of Parliament, the rule of law and the dependence of
conventions upon the law”. A fourth can be considered from Marshall and Moodie,
being ministerial responsibility. Finally a fifth can be considered from the
Constitutional Reform Act 2005, which reinforces the doctrine of the rule of
law, and puts much emphasis on judicial independence10.
A codified constitution would be extremely hard to create incorporating these
principals, without contradicting them often.

 

In
continuation, it would be a large problem of how political conventions would be
interpreted into a codified constitution. Political conventions are

 

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