Is it time to codify the UK’s constitution?

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Recent controversies in the British government have raised questions as to the competency of the UK constitution in controlling the actions of government officials. The UK has an uncodified constitution, meaning that its content is not contained within a single document, but rather a collection of documents, not all of which are legally binding. 

The loose nature of the UK’s constitution allows for increased flexibility, meaning that the extent of governmental power is frequently up for debate. This is since such power is largely limited by conventions, meaning that the constitution’s functionality is dependent on the honesty and integrity of politicians. The ‘good chaps’ theory of government (as coined by Peter Hennessey) therefore places a significant amount of trust in British politicians, given that it is reliant on such members of government to act as ‘good chaps’ that respect the constitution. In the words of David Gladstone, the constitution ‘presumes more boldly than any other the good sense and good faith of those who work it’. 

In the words of David Gladstone, the constitution ‘presumes more boldly than any other the good sense and good faith of those who work it’

In the wake of Boris Johnson’s government there have been ongoing calls for constitutional reform, with accusations that it is no longer suitable for the needs of the twenty first century. This is because of its failure to control the frequent unconstitutional actions of Mr Johnson’s government, with highlights including Partygate, Dominic Cummings’s ‘eyesight test’, Matt Hancock’s affair, and Mr Johnson’s failure to take disciplinary action regarding the bullying reports concerning Priti Patel. 

The predominant argument for constitutional reform is that these actions violated the Rule of Law (stating that everyone is equally accountable to the law), which is understood to be the most fundamental constitutional principle. 

Academics Andrew Blick and Peter Hennessey have argued for constitutional reform, stating that we can no longer rely on the good will of politicians to ensure the functionality of the constitution. Mr Hennessey and Mr Blick also note the apparent decline in collective responsibility, highlighting the large number of ministers who called for Mr Johnson’s resignation, despite refusing to resign themselves. They consequently argue for reform, proposing the introduction of measures such as a Prime Minister’s oath. 

In the wake of Boris Johnson’s government there have been ongoing calls for constitutional reform, with accusations that it is no longer suitable for the needs of the twenty first century

Barrister Adam Wagner blames the decline of the constitution on the Covid-19 pandemic, arguing that the pandemic not only demonstrated the government’s lack of respect for the constitution, but was also somewhat responsible for the constitution’s decline in the first place. This is because the ‘temporary’ additional powers granted to the government during the pandemic have become convention, setting a precedent that the government’s power extends to the extent that it did during the pandemic. 

Lord Jonathan Sumption has expanded this argument, stating that the government’s actions during the Covid-19 pandemic were unconstitutional in itself. This is due to the government’s evasion of parliamentary checks, and the ambiguity of the Public Health (Control of Disease) Act 1984, upon which many of the restrictions were based. The latter was unconstitutional as, in the words of Lord Hoffmann, ‘fundamental rights cannot be overridden by general or ambiguous words’, which is a basic constitutional principle. The fact that the government was able to act in such a way with minimal protest (or even discussion regarding these actions) demonstrates the inefficiency of the constitution in handling modern crises, as it was ill equipped to prevent a diminishing of checks and balances in the case of an emergency. 

Barrister Adam Wagner blames the decline of the constitution on the Covid-19 pandemic, arguing that the pandemic not only demonstrated the government’s lack of respect for the constitution, but was also somewhat responsible for the constitution’s decline in the first place

The arguments highlighted above therefore demonstrate the need for constitutional reform. However, despite popular calls for codification, those with a less radical ideology continue to assert that the constitution is still functioning in accordance with its original intention, which was to be flexible in order to allow it to adapt as and when needed. 

As the criticisms against the constitution are founded on the inability of politicians to act in accordance with their understood constitutional roles, this issue would cease with the introduction of established rules (rather than just conventions) that place specific limitations on the power of individual politicians. This would be in the place of entire constitutional reform by codification, which would be a much more disruptive method of reform that would create additional issues due to its inflexibility. For this reason, whilst the idea of codification may appear enticing, the most pragmatic option remains the introduction of tighter legal measures specifically intended to contain the government and individual ministers’ power within their (currently only understood) limits.

Image: David Stanley via Flickr

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