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”1, 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 suggests2 there are two

principal historical reasons for this. The first reason is that there has not been a

sufficiently revolutionary “constitutional moment”3 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 successor4, 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

1 N Parpworth, Constitutional and Administrative Law (8th, Oxford University Press, Oxford 2014) 3

2 V Bogdanor, Writing the British Constitution, Kings College London Lecture (London 2015) 33min

3 ibid

4
AV Dicey, Law of the Constitution (8th, Oxford 1914) 40
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”5.

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”6) subject to

a statutory or constitutional jurisdiction. These jurisdictions would import “Parliamentary

control” and “normal judicial review procedures”7 into an area of executive power,

principally the use of the Royal prerogative - the “residues of the Crown’s arbitrary

authority”8, 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.

5 N Parpworth, Constitutional and Administrative Law (8th, Oxford University Press, Oxford 2014) 20

6 J Jaconelli, Nature of constitutional convention (1st, University of Manchester, Manchester 1999) 1

7 Blackburn, R, Mapping the Path toward codifying or not codifying the constitution (1st, House of Commons, London 2014) 10

8
AV Dicey, The Law of The Constitution (10th Oxford 1959) 424-5
The second prevailing argument in favour of codification is that codification could clarify

the relationship between the state and the citizen 9. This argument holds that by rigidly

entrenching constitutional rights, by making repeal or amendment procedures more

difficult10, 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 argued11: 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,

9 Phillis, O H, Reform of the Constitution (1st, Chatto Windus, London 1970) 145

10 N Parpworth, Constitutional and Administrative Law (8th, Oxford University Press, Oxford 2014) 80

11
Benn, T, Common Sense (1st, Hutchinson, London 1993) 115-120
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”12.

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.

12
Tomkins, A, Our Republican Constitution (1st, Hart, Oxford 2005) 10
For example, the case of Entick v Carrington13 which marked “the emergence of the rule

of law as the governing principle of the constitution14” 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 General15 and

Moohan v lord Advocate16 (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 others17, 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

13
[1765] EWHC KB J98

14 Gearty, C, 'Entick v Carrington in the 1980's' [1987] NLJ 1, 2

15 [2005] UKHL 56 [126]

16 [2014] UKSC 67 [35]

17
Bogdanor, The New British Constitution (1st, Hart, Oxford 2009) 9
 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