Our constitution is far from perfect – but written codification is not the answer

By Ian Adderley

I read with interest the article published yesterday calling for a codified constitution. It is clear that our current written but uncodified constitution – made up of an array of legislation, case law, and convention – isn’t perfect, far from it. However codification, or an attempt to create a new constitution, is not the way forward.

Whilst an uncodified constitution does not provide an easily accessible document detailing governance of the country and the rights of the individual, it does provide a living constitution. It is a constitution that can adapt and evolve with the ever-changing conditions in which we live. It is a constitution that has allowed, taking only recent examples: our entry to the European Community in 1973; the use of referenda as first seen in 1975; devolution in Scotland, Wales and Northern Ireland; the Human Rights Act in 1998; the removal of most hereditary peers from the Lords (unfortunately 92 remain); freedom of information; and separation of powers, to name but a few examples.

Therefore it is not rigidity or the inability to enact change that is the problem. On the contrary, perhaps the real problem is that the constitution, in its current state, is too flexible. If this is the case then we must seek to ensure safeguards are put in place. But we need not to codify our constitution to achieve this.

Our entry into the European Community in 1973, bringing with it the European Court of Justice (ECJ), has provided a safeguard against infringement of rights since the decision in Factortame. The European Court of Human Rights, deciding on breaches of the Convention of Human Rights, acts as a further safeguard (although I admit its decisions are not binding).

Importantly, the separation of powers provides further safeguards. We have a judiciary, which – thanks to the Constitutional Reform Act 2005 – will soon be fully separated from the legislature. It is free from political manipulation and the whims of whatever party governs and ensures that abuses of power do not take place – cases that involved detention of foreign subjects suspected of terrorism is just one example.

However many argue for a codified constitution neither on the basis that the current uncodified constitution is too restrictive, nor that the alternative is too flexible, but on the basis that we need a statement of values. We need to assert positive rights to make us feel British. If only there were a list of positive rights then people would come to understand the constitution, know what they are entitled to, and be able to emulate the citizens of America in their ability to recite their rights.

But we already have such a list. It is the Human Rights Act. Yet despite it clearly laying out a list of positive rights I can probably say with some degree of certainty that outside the bubble in which the legal and political apparatchik spend their time the majority of people cannot name even 5 of those rights.

Some argue that we should codify our constitution to outline basic entitlements, to education and healthcare, for instance. However, this presupposes that the UK is still a unitary state. It forgets that in a system of asymmetrical devolution, Parliament no longer legislates on education and healthcare in Scotland; unless of course we intend to go back on, or weaken, the policy of devolution.

Even if devolution hadn’t occurred and we were still a unitary state, then such entitlements would be meaningless without the right and ability to enforce them. We would need a constitutional court, similar to the Supreme Court in the US to be able to strike down contravening legislation.

Yet this goes against the very safeguards the Labour Government has strengthened since the enactment of the Constitutional Reform Act 2005. It would weaken and undermines the separation of power; the second we give judges the power to strike down legislation we would spark a flurry of political interest in their appointment. And we would see situations such as those in the US – fierce political battles of judicial appointments; Conservative judges blocking Labour policy and vice-versa.

Perhaps instead we may just have rights, or entitlements, that aren’t tangibly enforceable? But were this to be the case, those rights may as well be written on the back of a cigarette packet. For what is a right if it cannot be enforced?

The current constitution isn’t ideal, but a codified version is certainly not the answer.