Original post by alevelpainOne commonly-cited advantage of a codified constitution is that it can limit the power of theexecutive. That the UK both has a system of parliamentary government and an uncodifiedconstitution means that governments can be extremely powerful. Lord Hailsham described thepower exercised by Prime Ministers as “elective dictatorship,” because with a parliamentary majorityit is usually possible for them to do as they please. And because the House of Commons canoverrule the House of Lords by invoking the Parliament Act, a majority in that chamber is all that’snecessary. This almost gives the government arbitrary power, because of the principle of thesovereignty of Parliament: whereas the institutions of government in most states have their powersdefined and limited by constitutions, Parliament is not legally restricted at all.
As well as restricting the power of the executive, and indeed as part of doing so, a codifiedconstitution could also protect citizens’ rights. At the moment there is some protection, boththrough the Human Rights Act and because the UK is subject to the European Court ofHuman Rights, but a government supported by a majority in the House of Commons couldtheoretically repeal the Act and withdraw from the Convention in the admittedly unlikely event thatit wished to do so. A codified constitution, provided it was entrenched, and provided it contained astatement of rights, would be a stronger legal protection for those rights. In the USA, for example,which has a codified constitution, freedom of expression is secure: even if both Congress and thePresident wanted to restrict it they could not. Introducing a codified constitution could providesimilar protection in the UK.
And a further problem with an uncodified constitution is that it can foster constitutional instability.Since 1997 governments have tended to meddle with the constitution, often for party politicaladvantage (such as the removal of most of the hereditary peers from the House of Lords) or toresolve temporary issues (such as the Fixed-Term Parliaments Act). It could therefore be arguedthat this recent willingness to exploit the constitution’s flexibility supports the argument that theadvantages of a codified constitution (which could prevent such frequent changes) do nowoutweigh the disadvantages.
However, recent constitutional reforms have actually reduced the powers of the executive, whichrather dents the argument that this is a reason to codify the constitution. Prime Ministers can nolonger choose a convenient moment to dissolve Parliament and call a general election, for instance.There is even already an element of entrenchment, with the European Union Act guaranteeing a referendum for any further transfer of powers to European institutions and the precedent of theAV referendum establishing the principle that significant constitutional change will need areferendum to approve it. This is not an absolute guarantee, but the opprobrium which would beheaped on governments which tried to sidestep these laws and conventions would be risking itsexistence. This has all diminished the "elective dictatorship" which Lord Hailsham complainedabout. So one of the supposed advantages of reform has already been achieved, suggesting thatactually the advantages of a codified constitution no longer outweigh the disadvantages.
One of those disadvantages is that drawing up a codified constitution would be very difficult. Themajor political parties are divided over constitutional reform with the Conservatives broadlyopposed, the Liberal Democrats enthusiastic and Labour ambivalent, so the options areunappealing. It could emerge through compromise, perhaps devised by an all-party constitutionalconvention and requiring a referendum to ratify it ... but then the substance would be determinedless by principle than by what was politically expedient. Or it could be a partisan settlement,whether imposed by the current Coalition or by an alternative government ... but then such aconstitution might well be seen to lack legitimacy, and the political parties not in office when it wasestablished would probably seek to amend it. Such a situation would not be conducive toconstitutional stability, and it’s difficult to see an advantage which could outweigh this veryconsiderable disadvantage.
A possible solution to this dilemma might be to codify the constitution exactly as it is, but thatwould raise further questions, such as that of entrenchment. Were the constitution to remainunentrenched the executive would remain over-mighty and able to trample on citizens’ rights andchange the constitution at will. But entrenching the constitution would damage one of its bestfeatures, which is that it is democratic. The doctrine of the sovereignty of Parliament means that thewill of the people, as expressed by their democratically-elected representatives, prevails. Allowingunaccountable judges to overturn laws would be undemocratic, which is quite some disadvantage –and where this is already possible, in human rights law, it’s unpopular. The correspondingadvantage is that it might prevent governments from acting tyrannically, but governments in the UKhave shown no inclination to be tyrannical: indeed, recent constitutional reforms show just theopposite. This advantage to codifying the constitution, therefore, would be insignificant and clearlyoutweighed by the advantage.
The traditional defence of the UK’s constitution is that while unusual and theoretically defective itworks effectively. In theory the UK’s current constitutional arrangements would allow a tyrant,once elected and supported by a majority in the House of Commons, to exercise arbitrary power.But in practice this does not happen (indeed, constitutional reforms since 1997 have tended toreduce rather than increase government power) and basing constitutional reform around theprinciple that it might is unreasonable. Until this threat becomes more substantial thedisadvantages of codification will continue to outweigh the advantages.