Codified constitution: a remedy for UK democracy?

By Rameen P

In recent years, calls have grown for the UK to adopt a codified constitution. Having a single document where fundamental laws and the overall political system are explained would reduce the need for conventions, outline how power is distributed, and arguably better protect our rights. Although many of the dangers a codified constitution protects against have not yet been fully realised in the UK, it is worth considering as an option.

A codified constitution would diminish the importance of conventions, which are considered non-binding and currently inform much of the UK’s constitution. For example, it is a convention that the government resigns if it loses a no-confidence vote in the House of Commons. However, this could be ignored as it is not legally binding, and one could argue that this puts UK democracy in danger. Some may point out in response that many conventions would be politically difficult to ignore, and that conventions allow for flexibility. For example, a recent convention is that Parliament votes on the use of force and in 2013, it voted against intervention in Syria. Nevertheless, it was flexible enough to allow David Cameron to authorise an RAF drone strike in 2015, which he claimed needed to be carried out immediately. 

However, reducing the need for conventions could remain a benefit of a codified constitution. This is mainly because it is still possible for them to be ignored, which is a dangerous risk to take, especially for key principles such as the Salisbury Convention which influences the power of the House of Lords. In order to have this balance between flexibility and reducing risks, perhaps a pared-back codified constitution, which balances the two, could be a viable option. With regard to conventions, this could be achieved by describing only the most fundamental aspects of Parliamentary procedure (such as when the Prime Minister ought to resign) in the constitution itself. The document would need not go into extended detail about every possible situation, and so allow for flexibility. 

A codified constitution would also outline to a clearer degree how power is split. For instance, one could argue that it is not entirely clear how much power devolved nations should have, or when they should be allowed to leave the union. Some may reply that setting out an entrenched model for the separation of powers would undermine parliamentary sovereignty, which is a key element of UK democracy. Instead, they may claim that constitutional issues should continue to be determined by new Acts of Parliament. However, the principle of parliamentary sovereignty is already being undermined. For example, in the case of R (Jackson) v. Attorney General (2005), Lord Hope (who later became Deputy President of the Supreme Court) pointed out that “Parliamentary sovereignty is no longer, if it ever was, absolute”, suggesting that the rule of law is the “ultimate controlling factor on which our constitution is based”. 

Critics might then point out that it would be difficult to determine exactly how powers should be divided between institutions. The fact that Lords reform stalled after 1999, despite much support for it, could be used as an example of the difficulties of agreeing on how to implement constitutional changes. To mitigate this, again, perhaps a codified constitution which outlines the division of power in general (rather than describing the specific details of every possible circumstance) would be most appropriate.

A codified constitution would also entrench our rights further, and so protect them more effectively. For example, the US Bill of Rights sets out key rights, such as Freedom of Speech. Moreover, amending the US constitution (which is codified) is challenging, with measures in place to ensure that any successful amendments have broad support (the most recent amendment was nearly thirty years ago). This contrasts with the UK where a government could hold a simple majority vote in Parliament to get rid of certain rights. Some may respond that the UK’s current system’s flexibility means that rights can adapt and remain relevant. An example of this flexibility can be seen with marriage, where ideas of what it entails have changed over time. Once again, though, this could be retained if a codified constitution were to focus only on our most fundamental rights, and allow flexibility for those which are less pivotal.

One safeguard of the current system is that it would be politically difficult for the government to take away many of our rights. Even though the current government is considering reforming the Human Rights Act, the most fundamental elements of a new ‘Bill of Rights’ would most likely be very similar to those currently contained in the Human Rights Act. Indeed, the Government is actually planning to strengthen the right to freedom of expression. Nevertheless, although it may be politically difficult to remove our most fundamental protections, it is still legally possible for the government to do so. This could also become a greater risk in the future, which may be a particular issue for minority groups (who do not have as much leverage electorally). Lord Scarman argued in 1974 that when “times are abnormally alive with fear and prejudice, the common law” is at risk, and cannot resist the will of Parliament. In other words, many principles and rights established by common law (or even statute law) which it may seem politically impossible to undo, can in fact be more easily repealed than one may expect.

Although these risks have not yet fully played out, they are still worth preventing. This means that we should engage further in discussions about whether a codified constitution would be the best means of protecting UK democracy. Even a pared-back codified constitution (compared to other countries) may be a useful tool in avoiding putting our rights at risk and give guidance when dealing with certain topics. Although it is true that there would be tricky issues to resolve, such as the role of the judiciary, the potential protections and clarity a codified constitution could provide means it should at least be seriously discussed.

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