A uncodified or codified constitution for reasons

A constitution
is a set of rules or principles that seek to establish duties of the various
bodies of the government, regulate the relationship between the different
bodies of the government, distribute their powers and define the relationship
between the state and the individual1. House of Lords Select Committee on the Constitution
defines a constitution as being “anything that affects the way we are
governed, the balance between the different powers of Parliament and its
associated repositories of powers. It is about the authorities under which we
are governed”.2

For example, in the UK, there is the
legislative branch that is authorised to create the law, the judicial branch
which interprets the law, and the executive branch that implements the law. Constitutions
can be codified or uncodified, unitary or federal or seen as rigid or flexible.
The UK is an example of an uncodified constitution and can also be considered
unwritten. However, this has been deemed severely misleading as, in actual
fact, elements of the constitution are written for example, legislation that
concerns the role and functions of the local governments’ relationship with the
central government such as The Local Government Act 1972. It is more the case that the UK’s constitution is not
written or codified under one document, labelled “The Constitution”3.
Statutory constitutional law is located within ordinary legislation as opposed
to a separate constitutional document, so there is no simple way of identifying
such legislation. It could be argued that it is unimportant whether or not the
UK has an uncodified or codified constitution for reasons explored in this
essay.

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A codified constitution is one where constitutional obligations
are to be found within one single text, also commonly known as a written
constitution. There are 3 fundamental principles within a codified
constitution. The first being it is authoritative, which means the constitution
occupies a place in ‘higher law’ above customary legislation, giving it more
weight and power. As the constitution takes a greater stance within the law, it
allows other laws to be contrasted alongside it for the judges to then determine
how constitutional the laws are. A codified constitution is therefore
judiciable. It is also entrenched, meaning it is firmly established and extremely
difficult to amend or abolish4.
An example being, in the Republic of Ireland, in order for the constitution to
be altered, it is a requirement that the bill must be passed by both
parliaments, receive a majority referendum and have the assent of the President.

 

An uncodified constitution is one that is formed using rules
located from a variety of different sources, as there is no single legal
document. Differing from codified constitutions, an uncodified constitution is
not authoritative as constitutional laws hold the same legal status as ordinary
legislation. Due to this absence of a higher law, judges do not have a legal
standard against which they can declare things constitutional or
unconstitutional making uncodified constitutions not judicable. They are also not entrenched, they are actually very flexible. In order for the
constitution to change all that it has to do is go through the usual process that
applies to statute law.

 

On one hand, there are many arguments that support the view
that the UK should adopt a codified constitution. One argument being that
codified constitutions offer clear-cut rules for political procedure. This
makes it easier for judges to follow and apply them, because rather than being
unevenly spread through a number of different documents or statutes within
constitutional law, they would be located in one single document labelled ‘The
Constitution’. This would in turn, lead to less misunderstanding about the
meaning of constitutional rules and greater certainty that they can be enforced
confidently and correctly.

 

However, one argument is that codified constitutions are too
rigid as they do not allow for change very easily due to the fact that they
have a higher status within the law. For example, in the United States, in
order to amend the constitution that amendment must be either proposed to
congress and receive at least a two third majority vote or by a convention
called for by two-thirds of state legislatures and must also be ratified 38 out
of 50 states5. The
President is powerless in terms of his/her point of view as their opinion is
not taken in to consideration. The US constitution has only had 27 amendments
since 17876. This shows there is not much room left
for flexibility or change, and in a time where the world is evolving so
rapidly, it is of great importance that the constitution is relevant and representative
of the society it governs.

 

Uncodified constitutions however, are seen as very flexible,
because constitutional laws are treated the same as ordinary laws, it allows
changes to be made easily and frequently in order to stay representative. An
example of this is the legalisation of abortion in 19677 in
England in order to prevent back street terminations that proved unsafe. This
flexibility is one of the major advantages that the UK has due to the uncodified
nature of its constitution. This may be one of the reasons that A. King argues
that it’s not hugely important for the UK to have a ‘capital-C’ (codified)
constitution.

 

Alternatively, A.King could be considered extremely incorrect
in his statement due to the argument that certain laws for example human rights8,
should be entrenched in order to protect rights that are vital. It is argued
that in the UK, because the constitution is flexible, there is no clear formal
protection of the laws that are valued. For example, the fixed term parliaments act9 can be amended or abolished just as
easily as any other law. Parliamentary sovereignty means that the parliament
has the right to make or unmake any law, and no person has the right to
override or set aside the legislation of parliament, making them the supreme
legal authority in the UK. This places a great deal of power in to the hands of
the executives which some people may be uncomfortable with. Even so, it is
unlikely that Parliament would do anything drastic, as it is in their interest
to be re-elected by the public, so there is an element of politics which
greatly influences parliament and how power is used. This would not be an issue
if the constitution was codified, as the constitution maintains a higher status
and as discussed earlier, is much more difficult to change, which deters
governments from attempting to alter the constitution unless absolutely
necessary. Valued laws would be more securely protected as it would be more
clearly defined.

 

Parliamentary sovereignty would effectively be abolished if
the UK were to have a codified constitution. Some may see this as a positive
because it prevents the above scenario, and gives a greater amount of certainty
to the general public that their fundamental rights will remain regardless of
which political party comes in to power. However, others may argue that this
would undermine one of the key principles in the UK’s representative democracy.
The UK is seen to be a liberal democratic country. Liberty became a reoccurring
fragment of the constitution, dating as far back as The Magna Carta 121510
to the current Human Rights Act 1998. In
Ghaidan v Godin-Mendoza11, Baroness
Hale states that “Democracy is founded on the principle
that each individual has equal value … democracy values everybody equally, even
if the majority does not”12.
A number of problems are also bound to arise from this, such as the question of
how parliamentary sovereignty can even be abolished? Being part of the EU
undermines the sovereignty of parliament, Brexit however may bring the doctrine
back to its full capacity which begs the question of whether or not
constitutional reform is needed in the UK.

 

Another point is that codified constitutions can lead to
judicial tyranny. A codified constitution would be ‘policed’ by senior judges
who are unelected meaning they are not socially representative of the general
public. This is undemocratic and in turn means that particular groups within
society for example ethnic minorities, or people with certain religious beliefs
are not necessarily going to have their views listened to. This could be seen
as regression in the UK if this were to happen.

 

On the other hand, this would ensure that the
constitution was correctly upheld. Judges are also act as both neutral and
impartial, so they are arguably the fairest people to be trusted to police themselves
in regard to the constitution.

1 Erin McKean
(editor) The New Oxford American
Dictionary, (May 2005, Second Edn, Oxford University Press) 2051

2 Select
Committee on Constitution, First Report 19 accessed
18th January 2018

3 Mark
Elliot & Robert Thomas Public Law (3rd
Edn, Oxford University Press) 77-80

4 Scott
Thomas Codified Constitution

accessed
17th January 2018

5 The U.S
National Archives and Records Administration accessed 20th January 2018

6 Government
Publishing Office Amendments to The
Constitution of The United States Of America (2018) accessed 17th January 2018

7 The
Abortion Act 1967

8 The
Human Rights Act 1998

9 The
Fixed-term Parliaments Act 2011

10 Robert
Blackburn ‘Britain’s Unwritten Constitution’ (The British Library,13th March 2015) accessed
20th January 2018

11 Ghaidan v Godin-Mendoza 2004 UKHL 30 2004
2 A.C 557 

12 Ghaidan v Godin-Mendoza 132 (Baroness
Hale)