Codification of the British Constitution - Essay Example

? Codification of the British constitution Codification of the British Constitution This research essay will give a detailed argument on the codification and uncodification of the British constitution. It will discuss the various principles and reasons for and against the codification of the British constitution. Various aspects and issues arising due to codification of the constitution are given with supporting facts. A brief history is also offered in this essay. A constitution is a form of rules which are set that have a responsibility of establishing duties, powers and also functions of the given elements of the government and in addition they offer regulation of the relationship between individuals and the state. The rules that are provided in the constitution include the territories of the country, the language of the country and also the country’s religion (Turpin et al., 2007:41). With this in mind, there are various types of constitution varying from codified constitution to uncodified constitution, unitary to the federal constitution and also they are seen as either rigid or flexible. However, there is a common way of classifying the various types of constitutions in that the constitution is either codified or uncodified. A good example of an uncodified constitution is the British constitution while another example of a codified constitution is the constitution of U.S.A (Beatson, 1998:45). A codified constitution is one type of constitution where the important constitutional provisions are kept in a single document; thus, it is normally referred to as a written constitution. In a codified constitution, there are three main characteristics; the document placed in the constitution has an authoritative power that it may constitute higher law, also it creates a binding effect between all political institution including those who make the ordinary law and finally the feature provided by the codified constitution are said to be entrenched. An uncodified constitution occurs on opposite sides with the codified constitution. The uncodified constitution is a type of constitution that has no legal document or well known as a written document. It consists of several rules that are provided by various types of sources in the absence of a written document. One of the characteristics of an uncodified constitution is that it has no authoritative power in that the government can amend and change the laws any time. Back to the main objective of giving an argument between codifying or uncodifying a constitution, there are several facts supporting the idea of codifying the constitution in the country. Yes, a codified constitution is needed though it is not flexible, and it is rigid. Referring to the discussions above which state the main purposes of the constitution of governing and regulating the government, it clears show that a codified constitution is needed. If a legal document lacks in the country, then how will the power of the government be determined? This means that without a codified constitution then the government of the country will have superior powers hence it will manipulate most of the issues in the country. This fact gives a clear understanding that a codified constitution so that clear and defined rules are set to prevent power abuse and overexploitation of the powers provided to the government (Heywood, 2011:10). When such act is implemented that is if a codified constitution is implemented then the citizens of the country will benefit a lot since their rights will be protected and clearly projected thus giving them the needed protection against the state. This will reduce certain case like that of Burmah Oil v Lord Advocate in case the codified constitution is implemented due to the reasons of similarity in government’s legislative power (Chrimes 1967:42). When a referral is done to the problems seen in regard to the implementation of the codified constitution then there are suggested solutions to such problems. It seems to be a nightmare if one implemented a codified constitution on reasons that the materials needed and mostly required to be filtered through will be so much. This attempt is very unpractical. There are traces of written documents in the British government. The only problem is that these documents are not codified. The reason why these documents are not codified is because Britain had no single approach to such constitution but for a long time it has possessed several written documents. Some of these documents are the Magna Carta, the Bill of Rights and the Human Rights Act. These written documents possess principles that should be included in a codified constitution. Another reason why the British constitution should be codified is because the British leaders have been offering a helping hand in drafting constitutions for other countries. Such constitutions include the post war Germany, Malaysia and many more that have not been mentioned. It is, therefore, unrealistic and unpractical to say that Britain lack the experience of drafting constitutions since they are skilled experts in that sector of drafting constitutions, and if the written documents are given much focus then it will be fairly easy for the British government to draft and codify the constitution. A lot of time will be needed to draft a codified constitution if statements that say the principles in the written documents are not applicable in the modern society come to pass but however less time will be consumed in drafting a codified constitution if such written documents are not used as a guiding principle. As we all know that if less time is used the costs of drafting the codified constitution will be at a low level. It is also healthy to find the other hand of not codifying the constitution. We must take note on the type of constitution that Britain has which is an uncodified constitution. The main issue is what are the issues or problems involved when the British constitution is codified? The real problem is that the scope of the constitution will be a bit hard (Johari, 2006:167-169). This is because Britain is a country that is known of having a long history of not possessing a codified type of constitution. This, therefore, means that it would be very difficult to point out the vital issues to be included in the codified constitution if it were to be implemented. A clear understanding between convention and a political behaviour must be got for one to be able to clarify the above statement. This means that a country that does not have a codified constitution has its independence and own sets of similar practices in its governmental bodies. The practices named are commonly referred to as conventions. KC Wheare states that: A rule of behavior accepted as obligatory by those concerned in the working of the constitution (Wheare, 1951:179). A good example is when the action of a minister in the parliament who introduces a new bill will not be considered as convention, but it will be recognized as a political behaviour which is regarded as generalization of the working of parliament. Such information, unfortunately, cannot be included in the constitution but however it will be equitably important to give a note that the process of a passing a bill of right through identified houses in the parliament is a convention and it must be included in the constitution. This is because it is a practice that has happened over several years thus it is regarded as a norm but not a mere political behaviour (Bagdanor, 2008:46). This is one reason why the constitution of the Great Britain should not be codified. Another problem is that if the constitution of the Great Britain is codified then there will be potential conflicts between the constitutional principles. Reasons for such conflicts are that these principles are commonly general in nature so conflict will be obvious when they occur, for example, the doctrine of the rule of the rule of law. AV Dicey stated that: No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary manner before the ordinary courts of the land (Hilaire Barnett, 2009:6). This possesses a practical meaning that no person shall be imposed unto arbitrary law. In simpler terms, the constitution is meant to deny all rights of the government to make retrospective law (Rodney, 2008:66). But there is a conflict only and only there is a comparison to the doctrine of sovereignty in the parliament. This doctrine is defined by AV dicey as: The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament… has, under the English constitution, the right to make or unmake any law or whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament . The above issue is related to one case of the Burmah Oil v Lord Advocate where it said that the parliament invented a new legislation under the act of War Damage act in 1965 thus it was used to rule out the decisions that were made by the house of Lords, and it led to the foregoing of the supposed compensation (Barnett, 2009:67). This legislation which was made in high speed with few consultations is retrospective type of legislation which occurs in opposite sides with the first postulate law rule which was stated by dicey in that nobody or no individual should be subjected to retrospective law. It is, therefore, noted that from this eye brow raising case that these conflicts between principles in the constitution which are too general in nature may occur leading to certain problems being faced. This then poses a clear condition that British will face such problems if they decide to codify their constitution. The cost for codifying the British constitution is relevantly high. The cost was equivalent to ?966.8 billion and above as per statement in September 2011. This amount is equivalent to about 62.6 per cent of the Gross Domestic Product (Pettinger, November 2011). This huge sum of money gives a clear understanding that Britain with its financial status will stand no chance of allocating enough funds to help in drafting a codified constitution. This means that, such amount of money will not be available anytime soon since the national debt of Britain has put its focus to rising to about 100 percent come in the year 2015. But why is it so costly to draft a codified constitution? This is because not all individuals have the skills and knowledge to draft or make a constitution. In addition, more research is needed before codifying of the British constitution is done. With these aspects in mind, it means that codification of the constitution will take time and when a lot of time is taken more money will be needed to draft a constitution. Now that Britain is well developed country with expanded claws, research to be done before codification of the constitution will equitably exceed that of Zambia. That is why it is difficult for Britain to codify its constitution. If the constitution is to be codified, who is to be responsible? A clear imagination may say that the parliament is best suitable for that post because the parliament holds the symbol of democracy. Another reason for entitling the parliament such a task is that the parliament is the body that make laws in the country, and it has an additional role of holding more authority than other bodies in the country. But it is noted that there are a lot of risks involved when the parliament takes control of the role of codifying the constitution. The parliament is at high risk of abusing powers that is given to it and will also abuse the power of codifying the parliament if it is given to it. There is a proven of such character of abusing powers as related to the government of the Britain where it abused its powers by cancelling the speech of the Queen in 2011. Such character raises a big attention and will lead to loss of trust among the bodies in the government. If such incidences occur then there will be the party that will be held responsible for the codifying of the constitution since there is a level of accountancy and trust. Britain experiences such problems, and that is why it is very hard to codify the constitution of Britain. The last reason why it is difficult to codify the Britain’s constitution is that it will be very hard to accept the fact that the constitution is codified. This brings out the reaction of the people upon codifying the constitution. At first the citizens will show levels of happiness but in the real sense the constitution is not flexible so it will take time to be enacted. This will frustrate people and hence with time they will raise a vote of no confidence on the constitution. This makes the constitution of Britain to remain uncodified. The paper has been very argumentative disclosing out the various reasons why the British constitution should or should not be codified. The argument has given both sides, but it gives a clear advantage over uncodifying the constitution of the Great Britain. But if the constitution is not codified then the constitution will not be democratic as per the discussion above. Bibliography Books Bagdanor, V & S Vogenauer. (2008). ‘Public Law Spring 2008-Enacting a British Constitution: Some Problems’. Sweet & Maxwell ltd and Contributors. Beatson, Jack. (1998). Constitutional reform in the United Kingdom: practice and principles. Benn, Tony & Andrew, Hood. (1993). Common Sense: A New Constitution for Britain London: Hutchinson. Chrimes, S B. (1967). English Constitutional History. London: Oxford University Press. Heywood, Andrew. (2011). Essentials of UK Politics. Palgrave Macmillan. Hilaire, Barnett. (2009). Constitutional & Administrative 7th Edition, Routledge-Cavendish, Abingdon. Lobban, M. (2012). The impact of ideas on legal development. Cambridge: Cambridge University Press. Rodney, Brazier. (2008). Constitutional Reform: Reshaping the British Political System. Oxford: Oxford University Press Tom, Bingham. (2001). The Rule of Law. London: Allen Lane. Turpin, Colin; Tomkins, Adam. (2007). British government and the constitution: text and materials. Cambridge. Wheare, KC. (1951). Modern Constitutions, Oxford University Press, London Internet sources Constitution making process will not cost more than K300 billion Justice Minister’. (17 November, 2011). Retrieved 27 November 2011 from Gardner, Carl. (2011) ‘Parliamentary Sovereignty’. Retrieved 22 November 2011 from < http://www.insitelawmagazine.com/constitutional2.htm> Haroon, Siddique. (13 September, 2010). ‘Government accused of ‘abuse of power’ after cancelling 2011 Queen’s speech’. Accessed 23 November, 2011 from Linda, Colley. (November 2011). ‘Why Britain needs a written constitution’, Guardian News and Media Limited. Accessed 28 November 2011 from Mary, Frances Berry. (13 September 1987). ‘Amending the Constitution; How Hard It Is to Change’. The New York Times-Magazine. Retrieved 13 September 1987 Michael, Winrow. (2008). Discuss and Analyze the Arguments For and Against Adopting a Codified Constitutionin the UK, 1. Retrieved 8 November 2011from Michael, Winrow. (2009). Discuss and Analyze the Arguments For and Against Adopting a Codified Constitutionin the UK, 2 8 Nigel, Morris. (14 February 2008). ‘The Big Question: Why doesn’t the UK have a written constitution, and does it matter?’ The Independent. Retrieved 27 November, 2011 from accessed Pettinger, Te jvan. (2011).‘UK National Debt’, UK Economy. Retrieved 12 November 2011 from http://www.economicshelp.org/blog/334/uk-economy/uk-national-debt/ Journals Bogdanor, Vernom; Tarunabh, Khaitan and Steven Vogenauer. (2007). ‘Should Britain Have a Written Constitution?’, The Political Quarterly, Vol. 78, Issue 4. Hockman, Stephen & Bogdanor V. (July 2010). Towards a codified Constitution. Justice Journal. Newspaper Articles Colley, Linda. (November 4, 2011). Why Britain needs a written constitution. The Guardian. Other Sources Burmah Oil Company (Burma Trading) Ltd. v Lord Advocate [1965] AC 75 The New Oxford American Dictionary, Second Edn., Erin McKean (editor). May 2005, Oxford University Press, ISBN 0-19-517077-6.   Read More