The a codified constitution in the United Kingdom,

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Last updated: February 13, 2019

The United Kingdom does not have a single written textconstitution. This is uncommon as many modern and major countries have opted touse a codified constitution such as France and the USA. Although this mayultimately come down to the stability of the United Kingdom over many yearsthere are many aspect to back up the argument that the United Kingdomconstitution should be codified in a single written text and many that suggestit should remain uncodified.

The United Kingdom constitution has changed overmany years. The constitution in the United Kingdom first formulated with theMagna Carta in 1215. This laid “the foundations of constitutional Government inEngland.”1 Thisranged right through to 1998 when the Human Rights Act 19982 made theEuropean Convention on Human Rights3enforceable in courts within the United Kingdom.  With the lack of a codified constitution in the UnitedKingdom, Lord Neuberger states, “we have no constitution at such at all…”4 Thispoint suggests that there may be a need for a codified constitution within the UK.There are many factors that aid this argument. This includes the fact that itwill give the people of the United Kingdom the ability to have full knowledge oftheir rights meaning they will be able to protect themselves from the state.

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Additionally,there is no real balance in powers within the Westminster Parliament due to theexistence of Parliamentary Sovereignty. Therefore, a codified constitutioncould solve this problem.  Although, the formulation of a codified constitutionmay be too difficult to create, meaning there are many practical implicationsto reforming the UK constitution to that of a codified one.

The creation of acodified constitution could also undermine the Parliament. The fact theconstitution is uncodified means it is able to be kept flexible and change tomatch and meet the demands that of a modern society. This essay will argue thatthe constitution in the UK should remain uncodified for many different reasonsthat will be assessed.  There are many practical difficulties surrounding thecreation of a codified constitution. This includes that society isever-changing.

Nowadays, society has become very diverse and modern. Therefore,a new UK codified constitution must cater for everyone. Professor RobertBlackburn states that a codified constitution for the UK “has been debated… bypoliticians of all parties for several decades.”5 In the UKthere is no direct process laid out to codify the constitution6. Dr.Andrew Blick emphasises the question of, “What particular feature of UKpolitical and constitutional culture need to be taken into account?”7 Thisleaves many legal experts with what can only be described as a mammoth task ofincluding the needs of all people in the constitution. With the UK having anuncodified constitution, it is quite difficult to exactly define what it is8.

Thereare great implications and debates on what conventions and legislationswholeheartedly make up the constitution, with Elliot and Thomas affirming, “Thereis no straightforward, formal way of identifying such legislation…”9 As theconstitution is uncodified, the legislation that may make up the constitutionis not branded as ‘Constitutional’10. JackBeatson compared the creation of a codified constitution as, “like pulling on aloose thread of wool on a pullover.”11 In thesense that you are unsure whether you are going to fix a problem and tidy it upor you are going to completely damage it12.

Thistherefore leaves what should be included within a codified constitution open tointerpretation13.In turn, many disagreements could happen during the formulation of a codifiedconstitution. The many practical implications on creating a codifiedconstitution within the UK supports the view that there is no need for acodified constitution as it may be too difficult to create. In contrast to this point, the UK could benefit from acodified constitution as it would improve the separation of powers.

Theexistence of Parliamentary Sovereignty14 meansthere is no full balance of powers within the UK Parliament. Within this Parliamentthere is the legislative, executive and judiciary. The lack of a codifiedconstitution means this separation of powers is never perfect. Parliament hasthe ability to ever increase its powers’ through the simple passing of an Actof Parliament.

Parliament has passed and created many measures to limit theimportance of Parliamentary Sovereignty. This includes the Human Rights Act199815 and theentry of the UK to the European Union in 1973 with the European Communities Act197216. Thesehave placed European Law at a higher regard than UK common law. This in a senselimits the power of the Parliament. However, in theory this does not fullylimit Parliament as they could repeal any of the laws that created thesechanges. The ability of Parliament to increase their power means there is whatLord Hailsham described as an “elective dictatorship”17meaningthe balance in powers is not apparent.

 As the current separation is not perfect, a codifiedconstitution which would clearly define the separation could aid this. BaronMontesquieu expressed this view in 1748 by stating, “There would be an end toeverything”18if the same person were to exercise the legislative, the executive and thejudiciary as it would be impending on the liberty of the subject in court.19Although this is not calling for a complete separation, it suggests that animproved separation could be beneficial. Sir William Blackstone reworked BaronMontesquieu’s idea of a separated but mixed power structure. He remainedcentral in the idea that to avoid tyranny the powers must remain separate.20 Howeverhe also ensured it was crucial that the powers were somewhat mixed. This is toavoid what Hilarie Barnett describes as “constitutional deadlock”21. Thatbeing said, it is also key that constant checks are made to ensure that noinstitutions begin working too closely with the other.

22However, with the lack of a codified constitution it is hard to decide whenthis is happening. Therefore, the creation of a codified constitution in the UKwould be beneficial to this as it would clearly illustrate the guidelines ofhow the powers of the Government were originally separated.  Moreover, with UK not having a codified constitution,the rights of citizens are not clearly outlined and are not protected by asingle document. There is no mention of rights and freedoms’ within the manysources of the uncodified constitution. Former Justice Secretary Jack Strawstated, “Most people might struggle to put their finger on where their rightsare?”23 Thistruly articulates the lack of provision the UK Government has allocated tofully protecting the rights and liberties of their citizens. These rights andliberties play such a pivotal and important role in a totally revolutionised,diverse and modern society.

In 2014 the Conservative Government set out onlimiting the use of Human Rights24 to onlycases that were deemed serious enough by the Parliament. This completelyundermines the rights and liberties of the people within the UK who should haveeasy access to their human rights through a British Bill of Rights and codifiedconstitution. Hilaire Barnett commented on this intention stating that itwould, “limit the territorial scope of human rights to the UK”25 and itwould not cover the British armed forces that are fighting overseas.26 Thiswould create many constitutional difficulties and prove to have very limitedbenefits.  The European Convention on Human Rights27 hasprotected the people of the UK from the virtually unlimited power of the statesince 1998. Implications to the rights of people caused by the onset of Brexitare an increasing issue in 2017.

The people of the UK are protected by theCharter of Fundamental Rights of the European Union28. Thisis a combination of the many rights of people living within the EU. Manypoliticians have stated that the charter will no longer be effective and willnot be law when UK eventually leaves the EU. A Bill of Rights which combinesand legitimises the rights and liberties brought by the EU could solve thisgrey area. Andrew Lesser QC supports this view and states, “Itmight give the public a greater sense of ownership. It could ensure theconsistent protection of rights across the United Kingdom.”29 In theBelmarsh case30,Lord Bingham of Cornhill in the House of Lords was only able to issue a’Declaration of Incompatibility’ on the ‘Anti-terrorism, Crime and Security Act2001’31 withthe European Convention on Human Rights32 regardingthe nine appellants who were unlawfully detained in Belmarsh Prison33.

The UK’shighest court was unable to protect the liberties of individuals in this casedue to the Parliament reigning supreme which is a definite problem relating tothe current uncodified constitution within the UK. A codified constitution andBill of Rights could possibly combat this problem as it would safeguardcitizens to a higher degree and protect the rights and liberties of individualsliving in the UK. TheUnited Kingdom currently benefits from an uncodified constitution in the sensethat it is flexible and can be easily adapted. James Bryce said that thedefining feature of the UK’s uncodified constitution is its “flexibility”.

34 Everylaw can be changed legally in the same way within a flexible uncodifiedconstitution. Dicey stated that the whole constitution in the UK can be changedand curtailed as easily as any other law.35 Diceyeven went as far as describing the uncodified constitution as “the most flexiblepolity in existence”.36 The UKGovernment avoids a deadlock in Parliament with their uncodified constitution.For example, the Commonwealth of Australia Constitution Act 190037 statesthat an amending Bill must pass through at least one House of Parliament by amajority and the proposed amendment must be endorsed in a referendum whichapproves the measure by an overall majority in at least four of the six states.

38 Betweenthe years 1900 and 1990, there were forty-two proposals of amendments for theAustralian constitution put forward. Of these forty-two proposals, eight wereapproved by a majority of the national electorate and a majority of electors ina majority of states.39 Thishas left Australia in what Geoffrey Sawer described as “a frozen continent”40, constitutionallyspeaking. The UK avoids this deadlock in Parliament by having a very flexibleaspect of their uncodified constitution which is that a majority vote in Parliamentcan amend the constitution. No court is allowed to make an Act of Parliamentvoid.41 It canbe said that this aspect of flexibility may be outdated as it was originallyimplemented as it “enabled easy incorporation of new territories”42 to theBritish Empire which is no longer of great importance to the UK. Although, the UKbenefited from this flexibility in many major ways that still exist to thispresent day.

The flexible uncodified constitution “has been flexible enough toadmit… the union of Great Britain and Ireland.”43 Theunion of Northern Ireland with the UK still remains today which proves that theaspect of flexibility in the constitution has served the UK well over many yearsand ultimately proved beneficial.  Furthermore,many countries have struggled to amend their constitution for important reasonsand have suffered various tragedies for this. The USA features a codifiedconstitution and a Bill of Rights. The second amendment in this Bill reads, “A well-regulated Militia, being necessary to thesecurity of a Free State, the right of the people to keep and bear Arms, shallnot be infringed.”44 Theeasy access to firearms to US citizens has led to people using the firearms forsinister motives. Mass killings in the US are on the rise and are often “carriedout with guns… most of them obtained legally.”45 Over146 events analysed, 168 out of the 292 firearms used were obtained legallythrough the second amendment right of every US citizen.

46 Due tothe strict nature of the US constitution, Congress has been unable to pass vitalgun control laws as the amendments have become entrenched in society. Alternatively,with the flexible nature of the UK’s uncodified constitution, firearms lawshave been and can be easily passed just like any other law. There are strictcontrols on the use of firearms under the Firearms Act 196847 whichin turn proves how beneficial the flexibility of the uncodified constitution inthe United Kingdom is, as in a sense; lives and liberties are protected, evenwith the absence of a written Bill of Rights, with the ability of Parliament topass any law. Tofully conclude, the United Kingdom is unusual in having an uncodifiedconstitution. However, it is this uncodified constitution that has beensuccessful for many years and is the backbone of the United Kingdom as a whole.It has allowed for the protection of its citizens in a unique way.

Although therights and liberties of citizens are not protected by a written Bill of Rights,it is the job of the Parliament to ensure that these rights are protected throughthe passing of Acts of Parliament and many unwritten conventions which make upthis constitution. The fully flexible constitution that currently exists isvital in what has become a diverse, modern day society as it has the ability toadapt to suit the needs of society. Therefore, the constitution of the United Kingdomshould remain uncodified as it has been for many centuries.1 Jowitt’s Dictionary of English Law (4thedn, 2015)2 HumanRights Act 19983 EuropeanConvention on Human Rights 19504 Professor MarkElliot, ‘Is Lord Neuberger right to suggest that the UK “has no constitution”?'(Public Law for Everyone, 13 February2014) accessed 15 December 2017 5 ProfessorRobert Blackburn, ‘Britain’s unwritten constitution’ (British Library, 13 March 2015)>accessed 15 December 20176 Dr.Andrew Blick, ‘Codifying- or not codifying- the UK constitution: A LiteratureReview’ 20157 ibid8 Anthony King, The British Constitution (firstpublished 2007, Oxford University Press) 109 MarkElliot and Robert Thomas, Public Law (3rdedn, 2017) 4210 MarkElliot and Robert Thomas, Public Law (3rdedn, 2017) 4211 JackBeatson, ‘Reforming an unwritten constitution’ L.Q.

R. 2010, 126(Jan), 48-7112 ibid13 ibid14 Doctrineof Parliamentary Sovereignty15 HumanRights Act 199816 EuropeanCommunities Act 197217 JackBeatson, ‘Reforming an unwritten constitution’ L.Q.R. 2010, 126(Jan), 48-7118 HilaireBarnett, Constitutional &Administrative Law (12th edn, 2017) 8119 ibid20 ibid21 ibid22 ibid23 NigelMorris, ‘The Big Question: Why doesn’t the UK have a written constitution, anddoes it matter?’ Independent (London,14 February 2008)24 HumanRights Act 199825 HilaireBarnett, Constitutional Law (12th edn, 2017) 48726 ibid27 EuropeanConvention on Human Rights 195028 Charterof Fundamental Rights of the European Union29 Michael Zander, “Willit ever come to pass?’ 2015 165 NLJ 7657 11, 1230 A and others v Secretary of State for the Home Department 2004UKHL 56, 2005 2 AC 6831 Anti-terrorism,Crime and Security Act 200132 EuropeanConvention on Human Rights 195033 A and others v Secretary of State for the Home Department 2004UKHL 56, 2005 2 AC 6834 DylanLino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ 2016 OJLS 36(4): 751, 76735 ibid36 AlbertVenn Dicey, LOTC (1st edn,1885) 11437 Commonwealthof Australia Constitution Act 190038 Commonwealthof Australia Constitution Act 1900 (UK), s 12839 HilaireBarnett, Constitutional &Administrative Law (12th edn, 2017) 940 ibid41 ibid42 DylanLino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ 2016 OJLS 36(4): 751, 75543 DylanLino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ 2016 OJLS 36(4): 751, 76744 Cornell Law School, ‘SecondAmendment’ (Legal Information Institute) accessed 16 December201745 BonnieBerkowitz, Lazaro Gamio, Denise Lu, Kevin Uhrmacher and Todd Lindeman, ‘Themath of mass shootings’ The WashingtonPost (Washington D.C., 20 November 2017)46 ibid47 FirearmsAct 1968

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