Is Britain moving towards a codified constitution Essay Example

way, nor can any parliament bind its successors. Following the unification of Scotland and England in 1707, Scottish jurists argue that parliament in Westminster lost its sovereignty, particularly in relation to Scotland. Therefore, the idea that Westminster's sovereignty does not apply in Scotland strengthens the case for codifying the constitution to safeguard civil liberties, particularly now that devolution has taken place. The current focus on Britain's constitution is mainly due to several political issues that have evolved over the past 30 years.

Britain's participation in Europe, where codified constitutions are common, has led some to believe that Britain is out of sync. The government's 1980s initiatives - such as the community charge and Trade Union Acts - have also fueled the ongoing debate. Additionally, the Thatcher years' public apprehension over the large majority government's influence has been revived with Labor Party's monumental win in '97. As a result, the natural checks and balances of the British system have been weakened and an all-powerful government has developed. Without resistance in Parliament, however, the courts can't challenge such a government. The judiciary's support is vital for a codified constitution's implementation since they become its guardians. Unfortunately, this is improbable in today's atmosphere. Europe's impact on British parliamentary sovereignty may be a significant step toward a codified constitution, though.

The integration of Europe has led to the acceptance of EU legislation and even the codification of parts of the constitution in order to ensure conformity across member states. While the concept of sovereignty was fiercely debated during the ratification of the Maastricht Treaty, pooled sovereignty was created, with implications for Britain's constitutional debate. Parliament's decision making power has been

moderated and negotiation with other EU countries is often key to new policies. If an EU army is established in agreement with Britain, it could severely limit cabinet's control over foreign policy and its supremacy in declaring war. A written document would likely be needed to define the rules and regulations regarding its implications on foreign policy.

There is a valid argument that if Europe is creating documents on an ad hoc basis, Britain should take advantage of this opportunity and codify their entire constitution. Incorporating the Human Rights Act into domestic law has partially politicized the judiciary and constitutes a significant advancement in British constitutional law. Although they cannot nullify legislation, judges can declare it incompatible with ECHR and provide for remedial legislation. This means that it would require less political change to adopt a codified constitution now than in previous years.

Despite the need for significant parliamentary support, Lord Irvine has emphasized that the current administration's ambition for change can still be accomplished using the current framework of an uncodified constitution. The power of parliament remains unaffected by the influence of the ECHR or our growing European perspective, as the assertion that no parliament can restrict its successors still stands, allowing for the annulment of any legislation or treaty established under the EU. There is also uneasiness surrounding the status and entitlements of the monarchy concerning the discussion of codification.

Even MPs have found the current issue controversial as it has been forbidden from official discussion. Although codifying the constitution may not necessarily change established rules, it could offer a chance to challenge aspects of Britain's parliamentary system. However, there is no certainty that a codified

system would be the only way to safeguard democracy and address the issues at hand. Obstacles such as the politicisation of judges and their appointment would pose valid challenges to any application for change.

The question is whether it would limit democracy for the unelected judiciary to have the power to decide on fundamental issues and set aside the will of elected Parliament. To avoid possible abuse, Britain could consider an election system like that of the USA, but there are associated problems. Some argue that court rulings in America are now based on public emotion as judges fight for re-election, as seen in the Louise Woodward case. Additionally, Griffith points out that the interpretation of what is in the public interest and politically desirable is determined by the individuals and their societal position.

The perception that judges come from aristocratic and conservative backgrounds and are out of touch is often held, but if this were truly the case, a written constitution would not benefit a socially diverse society in Britain. Some argue that constitutional conventions not only limit parliamentary power, but also adapt to changing political circumstances, making a codification of the constitution unnecessary. Conventions consist of informal practices that relate to practical legislation. While they are not binding on parliament, they are generally accepted practices that the government adheres to. Examples of conventions include the representation of minority opposition groups in various areas of parliament to restrict the unlimited power of a majority government and ensuring government action is accountable to the public through parliament.

Although safeguards can help protect democracy, there are limits to their effectiveness. The Parliament is restricted from certain actions because they

would be unconstitutional and morally or politically inappropriate according to most people.

According to Lord Reid, although it may appear that Britain is moving towards a codified constitution, Parliament still has the authority to make alterations. It is improbable that Britain will completely embrace a codified constitution as it differs from the current constitutional method.

Given the current state of British politics, it may not be feasible for Parliament to willingly surrender their sovereignty even if they hold supreme power. Additionally, determining the specific content of such an agreement could prove challenging. Although the arguments for relinquishing sovereignty may be persuasive, the impracticalities involved make it an unlikely option.