Codification of the UK Is Unnecessary and Undesirable - Essay Example

CODIFICATION OF THE UK IS UNNECESSARY AND UNDESIRABLE By Location The United Kingdom has received increasedcriticism for not having a codified constitution. The criticism emanates from other countries in the globe that endeavoured to lay down a unique document that defines their constitution. Despite the wave of codifying a constitution spreading all over the globe, and with many countries adopting it, the United Kingdom, Israel, and New Zealand have remained adamant. However, the case of th4 United Kingdom failing to codify its constitution has proved intriguing to many legal scholars. Some of these scholars from the UK itself have often presented suggestions of models that would serve as guidelines in codifying the constitution. Despite such suggestions, the UK has exhibited no urgency of addressing that matter. Evidently, it is under no compulsion to codify its constitution. A close analysis into the features of the current uncodified constitution, the uncertainties that scholars have defined as surrounding the constitution and its endurance over the years reveals that codification is not of urgent necessity. This paper will present a critical discussion of whether codification of the UK constitution is a worthwhile venture. Definition of an Uncodified Constitution Many countries have designated a specific document that receives recognition as the constitution.1 In other cases, some countries have their constitution contained in several interlinked documents.2 The informal term ‘written’ has been in use to denote the codified constitution, while its negated form ‘unwritten’ used in reference to the unmodified form. Although the UK lacks a codified constitution, it has legislation on a range of sources. According to some government publications, the common law, conventions, principles and practices, the statute law, works of authority and judicial decisions represent the UK constitution. Since the constitution remains uncodified, judicial decisions rely on the principle of common law constitutionalism. This means that courts rely on the uncodified statutes, principles, practices, and common law.3 Features of the Uncodified Constitution The fact that the constitution is uncodified presents it with unique features. Its content and meaning lack the precision and clarity required. Therefore, it proves difficult to highlight in concision what the constitution highlights, and to define its stand concerning different aspects.4 Moreover, because of its uncodified nature, the constitution lacks any specific definitions of the amendment process. Therefore, the amendment of the constitution is a loose process that lacks the stringency defined by many coded constitutions.5 A close consideration of the past centuries reveals that at certain points the UK had certain documents that qualified as codified constitutions. Some of these include the Magna Carta of 1215, and the Treaty Union of 1706. These two are not solitary cases, as others exist, a factor that makes it evident that the issue of codification is not strange. Many of the scholars have analysed the reason that explains the failure of codification of the UK constitution.6 Most of the countries that have a codified constitution settled for the decision to codify under the compulsion of a military defeat, revolution or the termination of colonial governance.7 Evidently, none of these factors exerted any level of impact on the UK, as they are non-existent. Therefore, the UK has never faced the compulsion to codify its constitution. However, experts have presented proposals of the codification process since 1970. Many of the scholars who have the conviction that a codified constitution is a necessity to have defined certain uncertainties that make the uncodified constitution unsatisfactory. The lack of clarity on the content and the meaning of the uncodified constitution has served to limit its interpretation. It is difficult for any institution to interpret the constitution when they lack clarity concerning its specific meaning. Moreover, there are certain concerns regarding the government’s capacity to limit constitutional principles. Analysts have highlighted their concerns that the existing uncodified constitution presents the government with unlimited power, posing a situation where representative democracy in under stringent hindrance. In a different perspective, other critics have highlighted that there is need to address the uncertainty defining the central executive. One of the principles of the uncodified constitution is parliamentary sovereignty.8 According to this principle, the parliament has the mandate to pass any bill without any power superseding its final decisions. Supporters of a codified constitution have highlighted that there is an ardent need to rethink the viability of the parliamentary sovereignty. The fact that the constitution does not define the law that governs the court procedures is an additional issue of concern to the many scholars proposing codification. Other uncertainties surround the need to introduce a level of accountability to the central executive, human rights convention, and definite procedures of constitutional amendments. According to another group of critics, there is an evident failure in cooperation of the judiciary and other critical sectors of the government. In their views, codification of the constitution will address these surging issues. Many of the proposals presented have highlighted the need for the UK to establish a constitution that exhibits a level of supremacy over the existing parliamentary sovereignty.9 Despite the proposals of codification of the constitution, the UK has exhibited no urgency towards the codification process. Such reluctance to adopt a coded constitution serves to reveal that the UK has logical reasons why such a venture is of little necessity. According to the royal commission on Reform of the House of Lords, the UK constitution has certain desirable features. In an appraisal of the constitution by the commission, it became evident that the uncodified constitution presents unique features that are impossible with the codified constitution. One of the attributes highlighted by this commission is the dynamic nature of the constitution. Over many centuries, the UK has managed to adapt to the changing situations in the legal and political scenes.10 It lacks stringent amendment procedures, and is malleable to suit the emerging circumstances. As the society advances, it can advance to suit the emerging salient needs. The fact that such evolution is possible with the constitution, UK has not resulted to the complexities of defining and adopting a new constitution. This has saved the United Kingdom government, both time and finances. This is unlike many countries that have often apportioned funds for amending the constitution in referendums. Moreover, the parliament has an easier time, preventing the unnecessary burden of the stringent amendment procedures of other countries. This is the reason why the commission had the conviction that the UK constitution has proved dynamic.11 Adoption of a codified constitution would mean that the UK has instated a higher form of law than the existing statutes, conventions, and principles. This higher law would present a high level of rigidity, preventing the dynamism that the UK has enjoyed with the existing constitution. Such rigidity would also translate to an unfavourable condition where the constitution lacks the capacity to conform to the evolving political and social needs. Evidently, the existing constitution provides for the flexibility that any nation desires. This serves to discredit the emphasis placed on the need to adopt a codified constitution. A close analysis of some of the changes in the recent past reveals that the constitution has indeed evolved to suit the emerging needs. In 1973, during the formation of the current European Union, the UK made necessary changes in their conventions to define membership in the Union. Moreover, in 1990 when devolution of Wales, Northern Ireland, and Scotland proved necessary, certain amendments served to govern the devolution process.12 In 1998, parliament passed the Human rights convention as deemed necessary because of the need to have a convention that promoted basic human rights. During the following year, a change in the constitution served to terminate the hereditary entry into the House of Lords. A year later, parliament also passed the freedom of information act 2000. Further reforms of the constitution led to the institution of a supreme court in 2005 and the fixed term parliament act of 2011. Notably, through a referendum, the pooling of power in the European Union was addressed. These changes serve as tangible evidence that the uncodified institution has proved highly dynamic, and that it evolves to address the emerging needs.13 In addition, the UK current constitution plays a critical role in the definition of political power and areas of its application. Unlike other countries, the UK constitution designates power to the political realm.14 This implies that politicians have a higher measure of power than the judiciary department. As awkward as it may appear to some scholars, this has worked in the United Kingdom. There is a lack of evidence suggesting that the UK has plunged into any form of crisis because of its designation of power to the politicians. On the contrary, the UK has a clear definition of the difference between the state and its citizens, despite the lack of a codified constitution.15 Some of the criticisms posed by different schools of thought that propose a codification of the constitution only serve to highlight some of the advantages of the uncodified constitution.16 For example, the fact that there is a salient lack of clarity concerning some issues has served to prevent any form of political crises. Many of the people cannot ascertain what the constitution states, and hence lack substantial evidence that would support any claims that would lead to disagreements. Evidently, in countries that have a codified constitution, the clear standing of the document on some issues serves to foster crises among the people. Many politicians and lawyers dedicate much time in the interpretation of each clause in the constitution documents. Since the UK lacks a single document defining its constitution, it is less likely to be subject to criticism and scrutiny. Evidently, efforts to codify the constitution will only serve to highlight such issues that have the potential of fueling conflict among the people. Moreover, the process of codification will take the UK much time and present financial implications and as well as the need for expertise in legal issues. The procedures indicated in the existing proposals only reflect lengthy proceedings, a factor that makes it undesirable for the UK. Many countries faced the compulsion to codify their constitution from the surging effects of a revolution, or the gaining of independence from colonialists.17 The United Kingdom faces none of the factors that would serve to reveal the urgency with the adoption of a codified constitution is an avoidable reality. The absence of any of such pressing issues serves to highlight why the codification process is deemed unnecessary.18 A close analysis reveals that the UK constitution has proven resilient for long. It has withstood challenges and evolved when necessary to address the emerging needs. Therefore, there is lack of justification why the UK should venture in a rigorous process that will serve to alter the existing constitution radically. Despite the potential benefits of codifying the constitution, research reveals that only a small percentage of the population prefers the radical change of codifying the constitution. Although such researches reveal that people have certain issues that need addressing, such can be addressed by the highly dynamic current constitution. As described above, certain issues such as human rights, EU membership, and information freedom have been addressed by introducing amends into the existing constitution. That serves as evidence that other issues that appear in the priority list of many citizens can be addressed by making further changes to the existing constitution. In any case, there is the lack of a guarantee that the adoption of the codification procedure will serve to address the uncertainties described above. The United Kingdom has registered a measure of political achievements that surpass those achieved by countries with a codified constitution. Although proposers of the codification process have highlighted the need or clarity in content, protection of human rights and limitation of the power of the central executive, such benefits do not ensure the level of stability exhibited in the UK even with its current constitution. Over the years, the country has registered a level of stability even when nations with codified constitution shave plunged into tyrannical rulerships. Although the wave of codification has influenced many countries, the UK has preferred to remain unique. Many of the existing criticisms of the uncodified constitution have been developed because of the peculiar instance, that the UK still has an uncodified constitution rather than on a rational basis. After so many years of the uncodified constitution addressing the needs of society through evolution when necessary, the radical change involving codification is not necessary.19 As highlighted above, one of the unique features of the UK constitution is parliamentary sovereignty. This supremacy accorded to parliament has often served as an avenue of democracy. The UK has a reputable history of long-standing democracy resulting from parliamentary sovereignty. The parliament exhibits the mandate to define acts, amend, and even refute certain bills in response to the surging pressure from the people. The fact that nothing hinders the power of the constitution to pass bills only serves to highlight how easier it proves to be for democracy to be achieved. Adoption of a codified constitution would place the document at a higher standing than the parliament. Therefore, parliament would face the compulsion of abiding by the stipulations of the codified constitution in its procedures. This would introduce a level of delay in the passing of bills, placing democracy at a compromise. This forms an additional reason why the adoption of a codified constitution is not desirable.20 Notably, the parliament will lose its standing if the adoption of the codified constitution occurs. Many scholars have defined the process as one of the parliament committing suicide. This is because the parliament would be involved in the process of codifying the constitution, hence formulating a document that supersedes parliamentary sovereignty. This would be abolishing one of the critical principles of representative democracy as it is practiced in the United Kingdom. Moreover, there is a lack of evidence of any significant failure of the existing uncodified constitution. This raises the question of why the UK would endeavour to begin the venture of fixing a constitution that has not registered any failure. Although it has several challenges, the existing constitution has delivered. According to opponents of the codification process, defined to take a span of 20 years, it proves more rational to introduce additional checks to the political system in a bid to limit the power of the executive. Other efforts, including amends of the existing statutes that are highly dynamic would solve the uncertainties highlighted above. This serves to eliminate the necessity of the codification process. Evidently, the UK uncodified constitution has served the people for centuries. Such endurance only serves to highlight its efficiency. Moreover, the UK has registered a long reign of stability, a factor that explains the absence of the pressures that would compel her to adopt the codified constitution. Although proponents of codification have presented their proposal, the UK seems unprepared for a radical change.21 According to opponents of the codification ideology, the UK constitution has exhibited a level of desirability dynamism because it can evolve in conformity with emerging political and social needs. Moreover, the uncodified constitution is the basis of parliamentary sovereignty, a critical avenue of representative democracy. Bibliography A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (Northern Ireland Human Rights Commission 2008). Aughey, A, The Politics of Northern Ireland: Beyond the Belfast Agreement (Routledge 2006). Bogdanor, V, Hockman, QC et al., ‘Towards a Codified Constitution’ (Justice 2010). Brazier, R, Constitutional Reform: Reshaping the British Political System (OUP 2008). Breslin, B, From Words to Worlds: Exploring constitutional functionality (The Johns Hopkins University Press 2009). Bryant, C, Towards a new constitutional settlement (The Smith Institute 2007). Goldsworthy, J, Parliamentary sovereignty: contemporary debates (CUP 2010). Gordon, R, Repairing British Politics: A Blueprint for Constitutional Change (Hart2010). Jowell, J and Oliver, D (eds), The Changing Constitution (6th edn, OUP 2007). King, A, The British Constitution (OUP 2007). Lutz, D, Principles of Constitutional Design (CAP 2006). McLean, I What’s Wrong with The British Constitution? (OUP 2010). Oliver, D and Fusaro, C (eds), How Constitutions Change (Hart, 2011). Pryor, J, Constitutions: Writing Nations, Reading Difference (Birkbeck Law Press, 2008). Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice 2009). Smith, G, Power Beyond the Ballot: 57 Democratic Innovations from Around the World (Power Inquiry 2005). Stuart, G, The Making of Europe’s Constitution (Fabian Society 2005). The Unspoken Constitution (Democratic Audit 2009). Tomkins, A, Our Republican Constitution (Hart 2005). Trench, A, (ed), Devolution, and Power in the United Kingdom (MUP 2007). Turpin, C and Tomkins, A, British Government and the Constitution (6th edn, CUP 2007). Read More