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At present, although the British constitution contains written sources such as statutes, it is not codified into one document. In Britain, we do not have a written constitution, but instead a collection of laws and customs which govern our political system. This essay will outline and explain some of the proposals and challenges that have been brought forward for a written constitution. It will then argue that even though it is suggested that codifying the constitution would result in stability and more power. Britain should not adopt a codified constitution due to its history and principles of the constitution. The United Kingdom’s fundamental principle of the British constitution is the fact that Parliament is sovereign. This means that Parliament is the supreme legal authority and has the right to make laws and reverse laws. However, in section 2 of the European communities Act 1972 it states that ‘in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly’.
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Therefore, as a basic principle of EU law is that it takes priority over laws which conflict between its state law and EU law, which shows its Supremacy. These two proposals heavily contrast and contradict who actually has supreme legal authority. The UK’s entry into the EU had triggered a constitutional paradox, whereby by the British constitution insists sovereignty lies with Parliament, yet the entry to the EU proved to be that the EU was a Supreme authority. This consequently means parliamentary sovereignty is suspended for as long as the UK remains a member of the EU, however, a written Constitution would increase its power as it is suggested that by introducing a written constitution the control of legislature would not effectively amount to changing the constitution. This would be further controlled by the constitutional courts.
Furthermore, it is implied that by having a written constitution and having an entrenched document as the highest source of law instead of Parliament, the constitution would be more stable as it will be more difficult to amend. On the other hand, a reason as to why the British Constitution should remain uncodified is the contradiction it creates to Parliament’s sovereignty. The notion is that parliament is supreme and can make or break laws and that no parliament can bind its successors by law or be bound by its predecessor’s law. If the UK were to adopt a codified constitution then this would make the constitution the supreme authority, and goes against its principle of Parliament having sovereignty. The idea of having a codified constitution would not be able to support the current principles held by the unwritten constitution and shows how codifying the constitution will not better the challenge of sovereignty. Furthermore, if the constitution was to be written, it would remove one of the constitutions main features which are its flexibility. Flexibility allows changes to be made to the constitution in timekeeping with societal and political circumstances. However, a challenge to the current uncodified constitution is the process of Devolution.
Devolution, as described by V. Bogdanor, is ‘The process of devolution involves the dispersal of power from a superior to an inferior political authority. More precisely, it consists of three elements: the transfer to a subordinate elected body on a geographical basis, of functions at present exercised by Parliament. These functions may be either legislative, the power to make laws, or executive, the power to make decisions within an already established legal framework.’ Devolution has transferred power from the central government in Westminster to bodies in Scotland, Wales and Northern Ireland. This then creates a limitation to the sovereignty of Parliament, as it is no longer sovereign to the domestic affairs in Wales and Scotland. This is visible in the example of the Government of Wales Act 2006 and a referendum in 2011, which led to the Assembly having primary law-making powers. This shows that complete power does not lay with Parliament, rather it is dispersed. This further develops on the issue of Devolution questioning the constitutional principle of the United Kingdom being a unitary state. Its unity has been questioned since the introduction of devolved governmental bodies, which are the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly. The process of Devolution, as a result, led to the Passing of the Scotland Act, Northern Ireland Act and Government of Wales Act in 1998 which has provided Scotland, Wales and Northern Ireland significant powers over affairs within their countries. This questions the constitutional principle that Britain is a unitary state and could be argued that it appears to make Britain seem Federal. However, had the British constitution been written, the roles and level of government could have been outlined to each extent, allowing parliament to maintain sovereignty but still delegate some form of power to lower levels of government.
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Nonetheless Even though it could be argued that Scotland, Wales, and Northern Ireland have some kind of a power, the Scotland Act, Government of Wales Act and Northern Ireland Act which were all signed in 1998 does not affect the United Kingdom as a whole, rather it only affects their respective jurisdictions and does not challenge the principle of unity. Furthermore, in the perspective of legality and constitutional principle, devolution does not affect the unity of Britain, or the Parliament’s because unity does not exclude other levels of government, which are subsidiary to the sovereignty of parliament. In a unitary state, there is only one sovereign center of power. Devolution challenged the United Kingdom being a unitary state by the creation of devolved assemblies in Scotland, Wales, and Northern Ireland but ultimately the power is still in the hands of Parliament.
Additionally, devolved powers of the subnational power can be temporary and are reversible, parliament can at any time dissolve the devolved assemblies, in theory, and also legislate on all matters. The legislation created by devolved parliaments or assemblies can be repealed or amended by the central government in the same way as any statute, without the burden of amending a written constitution. In reference to why the United Kingdom should not have a codified constitution in this matter is because subnational authorities are protected by the written constitution , so the powers of the sub-units cannot be withdrawn without amending the constitution, therefore sovereignty of power no longer resides within parliament, once again going against a key principle of Britain’s current uncodified constitution, which links back to why a codified constitution would not better contemporary challenges.
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