Law and Constitution free essay sample

The advantages of a codified constitution now outweigh the disadvantages† Discuss (40) The fact that the issue of the UK’s need for a codified constitution has managed to remain relevant despite centuries of prolonged deliberation, is not only testament to its importance as an issue but equally so to it’s significance and how it could potentially affect the UK as a whole. A codified constitution is a constitution made up of a set of laws that an individual or set of people have made and agreed upon for governmental use and is most importantly documented in a single place. In theory, the documentation of a codified constitution appears to make minimal difference to the executive and judiciary system, however, in common practice the advantages of a codified constitution in present day UK in regards to the executive, judiciary and society as a whole do not outweigh the disadvantages. This is due the fact that many of the issues which point toward the advantages of a codified constitution, such as modernization, rights and adaptability also reveal distinct social and political disadvantages to the incorporation of a codified constitution; ultimately the use of other tenuous links fail to alter the fact that the advantages of a codified constitution do not outweigh the disadvantages at the present moment in time. One of the primary hindrances in regards to whether the advantages of a codified constitution now outweigh the disadvantages is its sense of a lack of social mobility and a failure to adapt, which in many ways branches into the topic of modernisation, whilst also begging the question as to whether or not modernisation is worth taking when bearing in mind the potential extent of governmental paralysis in which it creates in relation to the legislation process. This in affect further prohibits the extent in which the Legislature can maneuver, which as previously stated undermines it’s power of legitimacy. In regards to adaptability however, the fundamental premise in which the implementation of a codified constitution is found wanting is it’s rigid nature in terms if natural progression. This is in sharp contrast to the current uncodified format of Britain’s current constitution which has used its flexible nature to allow natural adaptation to the tune of social change. So, for example, the non-political role of the monarchy has gradually evolved and adapted for over a century showing that odernisation must not strictly take place in the form of a codifying the British constitution. Similarly, Parliament has rarely experienced any dramatic changes to its powers and procedures due to no dramatic need to do so, however, it has still adapted itself to the progressive nature of modern government cautiously, rationally and of course progressively, in both past and present, once again highlighting Britain’s need to continue on this trend of gradual adaptation whilst als o not compromising on the concept of modernisation. Ultimately in practical terms in regards to the issue of adaptability, the documentation of a codified constitution would stifle a fundamental aspect of the current British constitution weakening the view that the advantages of a codified constitution now outweigh the disadvantages. The rigid nature of the constitution as well as being clear in the aspect of adaptability is similarly mirrored in it’s black and white viewing towards declaring the rights of those residing within any given area, in this case the UK. In many respects it could be viewed that the black and white nature of the constitution could be beneficial and remove any grey areas that still remain within the British Judiciary system in particularly in relation to rights. The creation of a codified constitution potentially entails the entrenchment of The Human Rights Act (2000) to protect the rights of citizens within the UK. The codification of the constitution could lead to the rights of those within the UK taking some sort of tangible format, and during a time in which fervent interest in rights is groomed along by those who seek it’s entrenchment, there could potentially be some reasoning behind this being an advantage of codification as well as the prospect of enhanced patriotism. Although, with multiculturalism so prominent within the UK it is difficult to imagine enhanced patriotism being of significant importance. What must be said though is that in anyone’s mind the preservation of the rights of citizens is a firmly reassuring idea. Furthermore, It could be argued that the Human Rights Act does not go far enough as by preserving parliamentary sovereignty and making parliamentary legislation an exception to it’s jurisdiction, the act fails to deal with the fundamental issue in the British constitution; that is, the enormous power of central government and its complete control over parliament. This, in the eyes of cynics at east, feeds into the argument of codification as had the Human Rights Act been binding on parliamentary legislation, it may have represented a major check on governmental power. However, what must be said is that however weak cynics may sight the Human Rights Act and view codification as some form of panacea, there are a few cases of practical evidence to show otherwise with the anti-terrorism legislation of 2004 a primary example which contradicts claims that the Act is weak, this, despite the fact that the issue of Human rights in relation to the creation of a codified constitution and its advantages does on the whole seem a credible one. A final point in regards to this issue would be where the creation of a codified constitution would leave Common Law. Common Law is a system in which law is derived from previous cases in court and is adapted upon. This of course brings together the previous topic of adaptability in regards to Human Rights, making one wonder whether there would ever be minimal adaptation to Human Rights through common law or any issue in the constitution for that matter. However the common misconception that no amendments can be made to a constitution is void; however a significant amount of time and money is usually the cost. This plays into the fact that there is a minor issue with codification in this particular branch of Human Rights, however this issue is not representative in the wider picture as a whole, with Human Rights a credible advantage of codification when weighed against its disadvantages. What must not be forgotten in all of this however is that the nature of the current constitutional format is relatively democratic and whilst in theory the transitional period may run smoothly, the change to a codified constitution may in fact be disruptive to the political process which may indirectly hinder the manner in which democracy is used within the UK in the short-term. However, by the same token, it could be claimed that the codification of a constitution could create clarity in terms of rights linking into the previous topic whilst not only aiding the entrenchment of key concepts in relation to democracy such as rights but creating a plausible argument in favor of the advantages of a codified constitution in regards to the current system. Ultimately though whilst a plausible argument is created in favor of the statement that the advantages of a codified constitution now outweigh the disadvantages is created, it must not be overlooked that there would undoubtedly be a potentially damaging transitional period, and this coupled with the fact that so many of the arguments in favor of a codified constitution seem mainly plausible in theory as opposed to practice equally re-affirms the idea that the advantages of a codified constitution as of now at least do not outweigh those of the current system. Therefore, when all is weighed into consideration the advantages of a codified constitution cannot be considered to outweigh the disadvantages as of now due to numerous flaws, as well tenuous links. Whilst the constitution may be amended similarly to the US and in theory appear to represent an element of stability, the fact that there has only been 1 amendment in the last 20 years, whilst many of its amendments have been due to prominent political issues as opposed to smaller yet highly relevant social matters, is equally as damning in its refusal to keep pace with an ever changing western society. This is highlighted in terms of entrenchment, which aligns society with concepts which in truth are redundant but are upheld purely because of entrenchment, bringing to light the fact that in the short-term modernising the UK in the form of a single document is not worth having it lost in archaic doldrums that will almost certainly hinder society in the long-term. The issue of short-term and long-term is similarly mirrored in regards to the transitional period bound to ensue once codification takes place. This ultimately begs the question as to whether or not the many of the tenuous advantages of codification really supplement the political imbalance and dysfunction that will likely ensue in the short-term especially in an era in which the public’s sense of patience justifiably wears thinner and thinner. As well as this, the inception of devolution and Blair’s Labour Parties other constitutional reforms post 1997 are representative of the flexibility of the current constitutional format, and as of now have made the need for codification ultimately superfluous, as opposed to pre 1997, as in reality the advantages of a codified constitution do not outweigh the disadvantages, and in truth; never will.