Should the UK adopt a fully codified constitution?

1500 Words The political climate in the United Kingdom (UK) in recent years has generated significant challenges to our eight hundred year old constitution. This constitution, broadly defined as “a body of rules that regulates the system of government within a state” N Parpworth, Constitutional and Administrative Law (8th, Oxford University Press, Oxford 2014) 3, has ancestry in documents like Magna Carta and the Bill of Rights and has been an underlying blueprint for western democracy and civil liberties. Despite this long tradition however, the modern relevancy and efficacy of the UK’s settlement has led critics to call for a codification of our “unwritten” constitution. This essay will examine the argument for codification - the centralisation of the sources of constitutional law into a single written document – and the argument for conserving our “evolutionary non-codified” constitution. It is something of a peculiar eccentricity of the UK settlement that, in contrast to the vast majority of “mature” democracies, there is no central document governing the interactions and limits of the institutions of state. Bogdanor suggests V Bogdanor, Writing the British Constitution, Kings College London Lecture (London 2015) 33min there are two principal historical reasons for this. The first reason is that there has not been a sufficiently revolutionary “constitutional moment” ibid and secondly; codification would necessitate a fundamental challenge to the doctrine of Parliamentary Sovereignty. The existence of the doctrine of Parliamentary sovereignty which, in the Diceyan orthodoxy, holds that: Parliament is the supreme lawmaker, can make or unmake any law and cannot bind its successor AV Dicey, Law of the Constitution (8th, Oxford 1914) 40, will be of fundamental importance in considering the arguments for and against producing a fully codified constitution. The contemporary re-emergence in support for a fully codified constitution has picked up where Lord Hailsham began in 1967 with his infamous “elective dictatorship” lecture. Implicit in the title of this speech is the underpinning desire to both codify the current settlement but in doing so create some level of popular constitutional modernisation. The principle target of modernisation is the currently imbalanced separation of powers between “the three organs of government: the legislature, the executive and the judiciary” N Parpworth, Constitutional and Administrative Law (8th, Oxford University Press, Oxford 2014) 20 . Pursuant to a re-balancing objective it is argued that the codification of constitutional law would mitigate some executive discretionary power. The most obvious “check” that codification would inject into our currently unbalanced separation of powers would be achieved by rendering “unwritten” constitutional conventions (“social rules” J Jaconelli, Nature of constitutional convention (1st, University of Manchester, Manchester 1999) 1) subject to a statutory or constitutional jurisdiction. These jurisdictions would import “Parliamentary control” and “normal judicial review procedures” Blackburn, R, Mapping the Path toward codifying or not codifying the constitution (1st, House of Commons, London 2014) 10 into an area of executive power, principally the use of the Royal prerogative - the “residues of the Crown’s arbitrary authority” AV Dicey, The Law of The Constitution (10th Oxford 1959) 424-5, which is currently legally unrestricted. An Illustration of the re-balancing effect of codification might be found in the unpopular invasion of Iraq in 2003. This invasion was ultimately achieved through the utilisation of a discretionary power under the Royal prerogative – the power to deploy armed forces. However if Tony Blair, in using the Royal prerogative, had been subject to rigorous Parliamentary control and review, the eventually “symbolic” recourse to Parliamentary consent may have been much more politically problematic. Codification in this context would also clarify current uncertainty over whether a new convention is developing in relation to Parliament’s consent being required before the Prime Minister can deploy armed forces. The second prevailing argument in favour of codification is that codification could clarify the relationship between the state and the citizen Phillis, O H, Reform of the Constitution (1st, Chatto Windus, London 1970) 145. This argument holds that by rigidly entrenching constitutional rights, by making repeal or amendment procedures more difficult N Parpworth, Constitutional and Administrative Law (8th, Oxford University Press, Oxford 2014) 80 , and making these rights justiciable (legally enforceable), then the citizenry will be both; better protected from the authoritarian lurches of modern government and more likely to understand the nature and extent of their constitutional rights. In applying the second argument it seems reasonable to suggest that if our rights were rigidly codified and legally entrenched then it would be significantly more difficult for governments to enact controversial legislation like the Terrorism Act 2006 in which, under S. 23, a suspect can be detained for 28 days without charge. Clearly on the basis of this example, it is entirely subjective whether or not codification would be desirable. Despite the potential benefits of codification, these must be qualified by both the counterproductive rigidity it may bring about and the severe challenge it would offer to the doctrine of Parliamentary sovereignty. This challenge would be manifest in the restriction, due to constitutional restraints, of the law making power of a government, the binding of future governments and the ability of the Judiciary to set aside Parliament’s will. Codification in effect would create a superior tranche of constitutional law or “constitutional supremacy” that would overrule normal laws. This position, due to constitutional rigidity, could facilitate both; political inertia in the face of national crises and a marbury v madison moment whereby, as Benn argued Benn, T, Common Sense (1st, Hutchinson, London 1993) 115-120: power to strike down law would be transferred from elected MP’s to non-elected Judges. Simply legally codifying the current settlement without fundamental amendments, in the election of Judges, would reduce democratic accountability and control whilst being somewhat of a retrograde nullification of the democratising Parliament Act(s) 1911 and 1949. Codification may also be criticised on the basis that it is unnecessary, given that the non-codified constitution has delivered domestic stability for hundreds of years. This is conversely the most obvious benefit of the currently un-codified constitution that has sustained peace because, unhindered by entrenched obstacles, Britain was able to freely adapt its political culture and institutions to changing social demand. Evidence of this reformist tendency is well illustrated by The Reform Act(s) 1867, 1884, 1928, The House of Lords Reform Act 1999 and The Human Rights Act 1998. Alongside the reforming adaptability of statute, there is also significant evidence of conciliatory constitutional conventions that have progressively modernised the constitution. This can be seen in conventions like the Salisbury-Addison convention, where the Lords surrendered their procedural power in favour of Commons Bill’s that carried democratic mandate or the Sewel convention which guarantees that Parliament in Westminster will not legislate on devolved policy areas. The political constitution in the United Kingdom has to some extent been able to satisfy the requirements of a changing society without resorting to arbitrary or authoritarian governance. This would seem to suggest that the un-codified constitution has both functional value and has an adequate separation of powers. This view is supported by Tomkins, who argues that a legally codified settlement is unnecessary because “politics is able both democratically and effectively to stop government” and “check the exercise of executive power” Tomkins, A, Our Republican Constitution (1st, Hart, Oxford 2005) 10. In extending Tomkins’ line of argument further, it is also possible to see the ability of the common law alone to “stop government” without the need for codified Judicial powers. For example, the case of Entick v Carrington [1765] EWHC KB J98 which marked “the emergence of the rule of law as the governing principle of the constitution Gearty, C, 'Entick v Carrington in the 1980's' [1987] NLJ 1, 2” successfully curtailed the arbitrary use of executive power. This ruling demonstrated the inherent constitutional principles underpinning the common law as well as the “evolutionary” adaptability of the UK settlement. Indeed further modern authority in Jackson v Attorney General [2005] UKHL 56 [126] and Moohan v lord Advocate [2014] UKSC 67 [35] (both obiter) has seemingly sustained this theoretical potential for the common law rule of law doctrine to check governmental authority. When Bogdanor summarised the currently un-codified UK constitution as a weakness to some and as strength to others Bogdanor, The New British Constitution (1st, Hart, Oxford 2009) 9, this was evidently true. Whether or not full codification will re-balance and restrain the political establishment or rigidly stifle the operation of modern governance, as in America, is certainly both a divisive and extremely complex proposition. Ironically however, on the 800th anniversary of the “evolutionary” signing of Magna Carta, the current political climate will very probably give rise to a national dialogue of this very nature given the context of a looming general election and the potential re-emergence of the West Lothian question and electoral reform. It seems reasonable to summarise that, if the product of 800 years of un-codified constitutional law is to be continuing popular discontent and political alienation then 2015 is indeed the most prudent time to begin the process of codification. 1500 Words Bibliography Books Heringa, A & Kiver, P, Constitutions Compared: An Introduction to Comparative Constitutional Law (1st, Interstina, Antwerp 2009) King, A, The British Constiution (1st, Oxford University Press, Oxford 2007) Gordon, R, Repairing British Politics (1st, Hart, Oxford 2010) Bradley, A W & Ewing, K D, Constitutional and Administrative Law (15th, Longman, London 2010) Jowell, J & Oliver, D, The Changing Constitution (7th, Oxford University Press, Oxford 2011) Journals Paul, C, 'Political constitutionalism and the judicial role: A response' [2011] IJCL 1, 112 M Elliot, 'Entick v Carrington in the 1980's' [1987] NLJ 137, 470 Articles Oliver, T, 'It's time for a balance of competences review of the UK' [2014] LSE British Politics and Policy Websites Bogdanor, V, 'The crisis of the constitution' (New Statesman 2015) <http://www.newstatesman.com/politics/2015/04/vernon-bogdanor-crisis-constitution> accessed 01/05/2015 House of Commons, 'The Cabinet Manual' (www.gov.uk 2011) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinet-manual.pdf> accessed 02/05/2015 Blackburn, R, 'Mapping the Path toward codifying or not codifying the constitution' (Case studies on constitution building 2014) <https://my.leedsbeckett.ac.uk/bbcswebdav/pid-923842-dt-content-rid-2558574_1/courses/16570-1415/codifying.pdf> accessed 01/05/2015 Tomkins, A & Turpin, C, 'British Government and the Constitution' (Google Books 2007) <https://books.google.co.uk/books?id=QYuF6jmoem8C&pg > accessed 02/05/2015