Starting sources such as statutes, it is one

Starting with what a constitution is, the House of Lords Select Committee
defined it in 2001; “the set of laws, rules and practices that create the
basic institutions of the state and its component and related parts, and
stipulate powers of those institutions and the relationships between the
different institutions and between those institutions and the individual.”1

A constitution has three main roles. First
they establish the authority and power of each political body, how they will
relate to one another and how the relationship between them can be altered. For
the UK, this is where the separation of powers comes in. the bodies being; the
executive (the government and civil service), the legislature (which makes laws
but does not administer them) and the judiciary (which adjudicates what is
lawful when this is disputed)2.
Secondly, constitutions should define the rights and freedoms of the
individual. For example, the right to free speech, the right to liberty, or
freedom from torture. Finally, a constitution should express the aims for the
country’s society. The aim could be to be liberal and non-fascist as it is for
Germany, or for the United States its “life, liberty and the pursuit of
happiness”3,
although this appears in the declaration of independence not in the US
constitution itself.

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Although the British constitution contains written sources
such as statutes, it is one of few in the world that is not codified into a
single document, or collections of documents (Israel, New
Zealand, Saudi Arabia (though the basic law of Saudi Arabia states that the
Qur’an is the constitution), San Marino and Canada also lack a single document
which outline a constitution). However, the UK does have what is called an
uncodified constitution, meaning that it is spread among many separate
documents as oppose to just a single one. The Constitution of the UK is built
upon Acts of parliament, court judgement and other legal principles. Many basic
rules which are part of the UKs constitution do not exist legally at all, and
simply rely on unwritten understanding or traditions. It is said that a reason the
UK does not have a codified constitution is because it lacks a critical moment
in its history that would encourage the codifying of a constitution, such as a
revolution.

 

The British constitution can be seen to be
made up from many different sources, fundamentals can be seen in
documents such as; the Magna Carta 1215, Human rights, the
Bill of Rights 16884, the
Constitutional Reform Act 2005, Constitutional Reform and Governance Act 2010.
Further principles would be drawn from the rule of law, parliamentary supremacy
and the separation of powers. Also many principles arise from the continued
development of common law. The UK constitution
is often described as an ‘unwritten constitution’, but it is best described as ‘partly written and wholly
uncodified’ (Budge et al, 1998)5.

 

Advantages
to the current state of the constitution is that it has a wide scope for
flexibility, adaptation and development. This means that the constitution can
develop easily over time and can adapt to the changing views of society.

 

As
many parts of the constitution arise from different sources there is the
possibility that conflict could occur between different sources making rights
of the individual even more unclear. By consolidating these various sources
into a single document it would eliminate the chance for conflicting
principles.

 

However
the constitution as it stands is extremely complex, which makes it very hard
for any lay person to fully comprehend and be totally sure of their rights.

Some
unwritten conventions that are considered constitutional rules remain unclear
or ambiguous, including some that are of serious national importance. As an
example, there has been debate over the existence of any constitutional rule
that parliamentary approval is needed before the government enters into armed conflict abroad or
starts arming opposition groups in foreign countries. On issues like this that
can be so important there should be clarity which a written and codified
constitution would be able to provide.

The
constitution should be intelligible and accessible to all, not just the
political or legal elite, whereas just stated even academics aren’t sure about
some details. Having a codified constitution would hopefully mean that many of
the different parts would come together and can be observed within a single
document. Meaning that the ordinary person would be far more able to find and
understand their fundamental rights. A codified constitution would also make it
clear and understandable for the public to know what rules and regulations the
government is accountable to.

 

Creating
a codified constitution would build peoples confidence in the political system
by showing clear and defined controls that ensure integrity and standards. It
would be a gesture to show that government wants to protect the rights and interest
of individuals, especially at a time where many people think that the UK will
be losing human rights following Brexit.

 

The absence of a constitution that supersedes
parliament means that the government can easily amend points within the
constitution, which many think is too much power. An advantage to codifying the
constitution and having an entrenched document would
be to have a source of law higher than parliament that would be a control on
the executive power by making it accountable. The state of the constitution would be
more stable as it will much tougher to amend. Having
a codified constitution makes it far more difficult for parliament to make
changes to legislation, which may be considered good and bad. Parliament would
have a harder time interfering with peoples rights, which may be good, but it
also means that as society develops and views changes, parliament will be less
able to legislate accordingly, resulting in an out of date constitution that
people don’t believe in anymore.

 An issue with having a
codified constitution is that it can cause conflict with an evolving culture.
For example, there is a lot of talk over the need for change to the second
amendment of the U.S constitution (the right of the people to keep and bear
arms6),
this was written in 17877.
Since being drafted and signed much has changed with reference to the
availability of firearms and the public view of the need and use of firearms. A
large increase in the discussion about this argument is to do with the high
rates of gun related crime in the U.S. The issue is the U.S government has a
lot of trouble with whether they can or otherwise should make changes as doing
so may make the power of the constitution appear less credible.  

 

A large reason as to why the UK should not codify its
constitution is that it would be extremely hard and very time consuming to do,
given that the constitution is spread so wide and is so complex. Furthermore,
it would be naïve to think that the main political parties could agree on what
the constitution should and should not include. Each party would want a
constitution that agrees with their political direction.

 

As the government of the time would be the
ones writing the constitution, it would also be wrong to let a single instance
of government create limitations or controls for future governments to obey.
This would go against one of the fundamental principles of parliamentary supremacy:
“Parliament cannot bind its successors as to the
content, manner and form of subsequent legislation” as said by A.V Dicey.

 

If it were to be codified, it would be a definite step
towards depriving the constitution of one of its most important characteristic:
its flexibility. The flexibility, which the British constitution is recognized
for.

 

Therefore, even though it is likely that codifying the constitution
would lead to better accountability, stability and clarity, the current
constitution does already hold these positive aspects. Additionally, Britain’s
constitution has been a success for years and has produced a stable government
in terms of democracy, transparency, and human rights. Therefore, the British
constitution should not be codified because this would only bring practical
difficulties.

 

1 https://owlcation.com/social-sciences/what-is-a-constitution

2 https://www.theguardian.com/commentisfree/2016/nov/30/why-britain-needs-written-constitution

3 https://www.archives.gov/founding-docs/declaration-transcript

4 http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction 

5 http://news.bbc.co.uk/1/hi/programmes/bbc_parliament/2561719.stm

6 http://constitutionus.com/

7 http://www.history.com/this-day-in-history/u-s-constitution-signed