A ‘Constitution provides a clear, accessible and coherent

A ‘Constitution provides a clear, accessible and coherent account of the body of fundamental rules and principles according to which the state and society are constituted and governed’, The British constitution is uncodified meaning it is ‘not unwritten- a good part of it is written- but it is uncodified’. The lack of a constitution in the United Kingdom has gathered considerable attention, especially in light of contemporary challenges. Many think that a codified constitution, being ‘a written constitutional document which has been consolidated into a single text and formally adopted’ would be more suitable, suggesting it would assist security as the constitution would have more clarity, it would protect rights and hasten the pace of processes. Others disagree supporting that an uncodified constitution allows for more flexibility, as specific rules would not be set, the constitution could make rules to fit with the changing society.

Furthermore the current constitution is not entirely broken so some believe a change is unnecessary. This essay will discuss these issues, featuring which version of the constitution would favour meeting contemporary challenges.177Put line of argument ^As explained the constitution is not codified, but partly written, the reason behind this is that the UK has evolved fairly securely, the constitution reflects this relative stability of the British policy. Having a fixed constitution was not suitable as laws were not constantly changing, due to no specific ‘constitutional moment’ in its recent history. 55The current unwritten constitution is formed of many statutes which are outlined in Thoburn, the earliest being the Magna Carta originating from 1215, since the constitution has sources from 800 years ago, the current constitution is scattered and fragmented, leading to a lack clarity and cohesion. Consequently, codifying the British Constitution would be beneficial since the current uncodified constitution yields clarity, and just one written document would be much more accessible. It would enable citizens to be more aware and understanding of the constitution given it being in only one place, especially as currently the word count is ‘ten times longer than that of the average constitution’, and is made up from numerous documents.

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A written constitution could also have an educative role, in assisting to establish a British identity, similar to what the American constitution has done, for example it states ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States’.This would be constructive given the development of multiculturalism, the perception of the British identity is more and more in need of being reaffirmed due to its expanding nature. Due to the fragmented constitution it is reasonable to say that the common identity is lost as it is so strenuous to find.

The Green Paper highlights the ‘need to ensure that Britain remains a cohesive society, confident in its shared identity’, so key values of Britain are needed to be established and codification would fix these in place, a suggestion could be outlining the 3 principles of the constitution: The Rule of Law, Separation of Powers and Parliamentary Sovereignty and also key features such as the Royal Prerogative Powers. 281This codification would aid the executive and its ability to exercise their power as they would specifically know the limits to their powers, with the principles and values of the constitution laid out within the document. This would have assisted the process of Brexit, the British decision to leave the European Union (the EU). As mentioned there are grey areas within the constitution involving the limits of the certain values and principles of the constitution, such as prerogative powers, being ‘the special pre-eminence which the King {or Queen} hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity’.

The ambiguity of the prerogative powers’ authority and limits, ultimately led to the neglectful decision that the government made, when they attempted to use prerogative powers to trigger the process of Brexit but could not as it was unlawful, given the Parliament only has the power. There was considerable conflict with this as some believed that ‘it would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the executive (government) to act on an advisory referendum without explicit parliamentary approval’.193The specific provision in question is Article 50 within the European Union (Notification of Withdrawal) Act 2017, which is a treaty provision that controls and starts the UK’s exit from the EU. However there’s uncertainty about Article 50 as it is a fairly new concept that has not been confronted before especially by a member state that has an uncodified constitution. Bagehot outlines that it ‘create(d) rifts and ambiguities for which no clear precedent exist{ed}’.

Therefore the triggering of the process in unclear, yet could be resolved by a codification which could specify limits of powers such as only the Parliament has the power to trigger Article 50. The reason being that prerogative powers can be used in foreign affairs, which relate to the EU, but Article 50 does also concern citizens rights, as it involves the movement of people and their rights, which the prerogative powers can not act on, as it involves domestic law which Parliament can act on, as the supreme law making body, this was argued in R (Miller) v Secretary of State for Exiting the European Union 2017 UKSC   5. This would also fulfil the content of Article 50, which states how the withdrawal negotiation is  to be conducted: within section (1)-‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. 226To summarise, if the British constitution was codified clarity would be heightened substantially, the process of Brexit would have been considerably easier, given it would have prevented deliberations over uncertainty since the constitution would have ‘constitutional requirements’ to follow, whereas currently with the uncodified constitution there is hesitation given no requirements exist.52508However, clarity does exist within the current uncodified constitution, given that the argument exists that the constitution does function and is not entirely broken. Above all, there is no public outcry for a codified constitution, some academics feel it would enable the processes which carry out within the constitution to flow smoother, but no campaigns or overwhelming upset over the issue exists suggesting the current uncodified constitution is impractical. Yet, the understanding of the constitution within the public is very limited, given the study of politics is not compulsory within curriculum taught in British school, consequently the lack of public outcry could be due to the lack of understanding of our constitution.

Furthermore, the clarification through a codification would have helped the process of Brexit considerably, however now that we are meeting Brexit, it is too late to codify the constitution since it takes a few years to draft it together given it is a thorough process. However, in hindsight it could have avoided ambiguity, but we have to focus on meeting the contemporary challenge with an uncodified constitution as this is the situation that the we are facing currently.190Codifying the constitution would help clarify other roles in the parliament, such as the role of the Prime Minister, although mentioned in the uncodified constitution in ’16 provisions’, none specify the central role played by the Prime Minister in the British government. Codifying the role of the Prime Minister would be beneficial as it would protect the constitution from abuse and assure the rights of the British citizens, which is critical within a democratic kingdom where the rights of citizens are key. Since exploitation of the constitution would be avoided because codification would give a fixed idea of the powers that the Prime Minister can exercise, which could speed up processes and would prevent deliberations.

It would also avoid any future abuse of power, as the powers which the Prime Minister can use would be limited to those fixed in the constitution, so if an extremist came to power they would not be able to apply their extremist ideas. For example the character of Tony Blair who has been criticised for abusing power within ‘his approach to the Iraq war’, the British constitution was easy to abuse since there were no fixed rules or role of the Prime Minister to follow, which a codified constitution would outline, restricting arbitrary powers.Yet, there has not been a substantial threat of an extremist to the UK government, so the codification of the role of the Prime Minister would prevent an abuse, but that abuse is not likely to happen looking at the political stability of the UK. Furthermore entrenchment could be implemented to further prevent an abuse of power and protect the durability of democracy within Britain, since if the rights of citizens were compromised, democracy would not be maintained. Entrenchment is the concept where a provision becomes difficult to change as certain steps need to be taken to alter a provision, which differ to a change in a normal provision. Overriding an entrenched provision may require a supermajority or referendum, rendering amendments incredibly difficult, sometimes even impossible to pass.

302However, as mentioned given the present-today uncodified constitution has not been abused, there is reason to state that no safeguard is needed as the likelihood of an extremist coming to power is very little. Additionally, there is no surety that a codified constitution will absolutely prevent arbitrary powers, as within North Korea they have a codified constitution which has a thorough human rights policy, yet a study was conducted, asking 103 defectors if they felt their human rights were violated, ‘74.7 percent’ said they felt their rights were breached. So powers can still be abused when rules are fixed in a codified constitution, as Article 67 within their constitution states ‘Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association’, which contradicts the information found in the study above.134Codifying the constitution would further protect and clarify the powers to the cevloved institutions


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