Evaluate the view that there are more advantages to having a codified and entrenched constitution than remaining with an uncodified constitution

In the UK we have an uncodified constitution meaning ultimate sovereignty lies in parliament and they can override any decisions. This can be seen as beneficial due to the flexibility, ability to meet current demands and accountability of MPs but it can also be seen as damaging as it means the government has the power to make decisions which could harm our rights. Ultimately there is not a massive demand to have a codified constitution and an uncodified constitution fundamentally gives the government flexibility which is in the interests of the public. 

Having a codified constitution would provide benefits to the people in the UK as it would prevent the government enforcing laws which could harm us and our rights. If these rights were further entrenched then governments would not be able to remove rights with a simple majority, as Dominic Raab is currently attempting with the repeal of the Human Rights Act 98. This is specifically prominent in an elective dictatorship, as the nature of our FPTP voting system often provides a majority government without a majority vote, which means the government possesses the power to control the rights of citizens who didn’t even vote for them. This is very damaging and a codified constitution would prevent this taking place. For example UK data retention laws allow the government to keep personal data for ‘as long as there is an administrative need’, this is an invasion of privacy to the citizens of the UK but the uncodified constitution means that rights of its citizens are not protected by a higher law making this legal. However, an uncodified constitution provides ultimate flexibility with regards to our rights which is arguably even more beneficial as it gives the government the power to respond to current issues. Moreover, this ability ensures sovereignty remains in Westminster parliament which is a key aspect of UK governance. An example of how this is beneficial can be seen through the outlawing of guns after the Dunblane Massacre, which killed 15 children and their teacher, and has prevented any future school shootings. In the USA, where they have a codified constitution, the right to bear arms is entrenched in their constitution and cannot be changed meaning school shootings continue. When social attitudes changed, the Cameron government passed a civil marriages act and this progressed rights. Consequently, we can see the flexibility of the UK constitution far outweighs the codification of our rights as parliament already safeguard our rights effectively and the benefits of the flexibility is far greater.  

A codified constitution would also be beneficial as it would place powers in the hands of the judiciary who are politically impartial. They are impartial and trained to do so which means they can truly guard the constitution and prevent the government making decisions which could be motivated by a desire to retain power as opposed to what is best for the public. A codified constitution would place checks and balances on the government and stop ministers, much like Boris Johnson and the partygate incident, from evading justice and failing to take responsibility for their actions. However, codification places too many powers in the hands of an unelected judiciary and could even politicize our judicial system. Judges can already use the HRA which means they have a large amount of power already. In addition to this, our elected politicians are accountable to the people whereas judges aren't, which would lead to a democratic deficit which is not in the interests of the UK political system. Whilst there is the argument that politicians are partial they often act in very impartial ways to appease backbenchers, such as the Conservatives wanting to remove rights to protest to appease backbenchers, which proves that they are held accountable, at very least more so than judges which makes them better placed to protect our rights allowing us to argue that the advantages to having a codified constitution don’t outweigh the benefits of having an uncodified constitution. 

The final reason which a codified constitution could be seen as more beneficial is because it would clarify the roles of the PM, cabinet and parliament and relations between them. Blair was able to break cabinet government for his entire 10 years and run a sofa cabinet (as dubbed by Lord Butler) whereby he conducted one to one meetings rather than with the whole cabinet. This is not fair as it prevents free discussion and debate around the proposal of new laws which is certainly not in the interests of the public. A codified constitution would place into statute the prerogative powers of the PM and hold them accountable which would prevent this kind of cabinet fiasco. However, our uncodified constitution allows the government to act in a nimble way and respond to current issues. The government already has conventions that provide a guide of how to act and the flexibility to suspend these, such as the suspension of collective cabinet responsibility during the Brexit referendum allowed MPs to campaign freely and allowed the public to make the decision they deemed best. Therefore it can be argued that the flexibility provided is of the utmost importance and in fact enhances democracy as it increases the free will of the people and the formality of a codified constitution would remove this which leads me to argue that the advantages of a codified constitution certainly don’t outweigh the benefits of an uncodified constitution.

In conclusion, an uncodified constitution provides ultimate flexibility to governments and their ability to act flexible means they can respond to the needs of the public which an uncodified constitution doesn’t provide. Moreover ministers are held accountable whereas judges aren’t, by having a codified constitution we would be giving far too much power to an unelected, unrepresentative body. Finally codification would remove sovereignty from parliament and whilst it would solidify our rights we elect MPs to do this for us and it would show a lack of faith in our ministers. Thus it is completely justified to argue that the benefits of a codified and entrenched constitution do not outweigh the benefits of an uncodified and unentrenched constitution. 

Chloe Tame