‹ All questionsPaper 2 · 2023 · 30 marks
Using the source, evaluate the view that the UK now needs an entrenched and codified constitution.
Constitution
Source
Source 1(a) explores the question of whether the UK now needs an entrenched and codified constitution.
The case for codification
The fact that the UK constitution is not clear has made recent political crises worse. The legal status of referendums in relation to parliamentary sovereignty is not obvious. The constitution fails to properly protect fundamental rights; the Human Rights Act is not entrenched and does not have any special protection, so the Act could be repealed or updated.
The constitution fails to properly detail the position of the devolved bodies as was clearly exposed by Brexit and this risks the UK splitting apart. Some sort of federal arrangement is needed to give entrenched protection to devolution. It is important that the people should write the rules which govern them and be easily able to refer to the laws and principles of the state.
The case against codification
If democracy requires that we write our own constitution, each generation must be given the same opportunity and this would destabilise the constitutional order. Would we really want the devolution settlement, the Human Rights Act, and the electoral system rewritten every two decades? Written constitutions quickly go out of date and the current constitution has shown itself flexible enough to deal with the political crisis created by Brexit.
The best way to enable a clear understanding of the constitution is to draft legislation in an accessible fashion, like the Human Rights Act, not codification. Codification also results in divisive questions which don't need to be asked, such as whether or not we should have a monarchy. Finally, codifying the constitution would risk giving too much power to the judiciary by enabling judges to become more involved in our political processes.
Mark scheme: agreement
codified constitution.
Agreement
The lack of clarity in the current constitution means we need a codified constitution.
The lack of clarity has caused political problems, making recent political crises worse such as Brexit in relation to
referenda vs parliamentary sovereignty and the separation of powers in the Miller cases (AO2); this suggests that the lack
of clarity is hurting UK politics so codification is needed to help bring stability and a clear set of rules.
The failure to properly protect rights means we need an entrenched and codified Bill of Rights.
The HRA is not entrenched, meaning it can be easily repealed with a majority whilst the lack of codification does not give
judges enough power to protect the rights of the people and allows governments to pass laws some consider to remove
rights (Anti-terror laws, Police, Crime, Sentencing and Courts Act). A Bill of Rights would more clearly protect human
rights (AO2); this suggests that the constitution needs codifying and entrenching to effectively protect human rights
(AO3).
The lack of clarity over devolution is a threat to the United Kingdom, so codification and entrenchment could provide a
clear set of rules.
The lack of clarity over where power lies has led to conflict between the devolved administrations and Westminster – i.e.
over the calling a second referendum and where the powers coming back from the EU belong making the splitting of the
UK more likely (AO2); this clearly shows that creating a codified and entrenched constitution with a clear federal solution
to maintain the integrity of the UK is a priority (AO3).
The current constitution is not easily understandable nor was it written by the people it governs so needs codification.
By getting the people to write the constitution and having it available in a codified document we can increase
transparency, understanding of and trust in political institutions at a time of low public trust in politics (AO2), which means
a codified constitution is necessary as the rules of government should be written by and accessible to the people (AO3).
check and sort out
Mark scheme: disagreement
codified constitution.
Disagreement
Codification and entrenchment will mean that the constitution becomes obsolete with time.
Codification will mean that the constitution will quickly go out of date, providing new political crises for the United
Kingdom whilst its current flexibility is its key benefit whilst codified constitutions are often unusable so need constant
interpretation by the Courts (AO2), meaning that codification is unnecessary as it will create a set of rules that are not
flexible, not usable and will become obsolete with time (AO3).
Codification will open up divisive questions that create new problems for UK politics.
In codifying the constitution, key political debates around issues like rights, devolution and the monarchy would be bitterly
divisive and create more problems than they resolve. (AO2), suggesting that the process of codification would be hugely
problematic by opening up divisive debates so there is no need for a codified and entrenched constitution (AO3).
A codified and entrenched constitution would not be welcome due to the power it would give to judges.
A codified and entrenched Bill of Rights would increase the power of judicial review, increasing judicial activism by
allowing judges to strike down Acts of Parliament taking judges into the role of making law and giving them too much
power (AO2), reflecting the view that the UK does not need a codified and entrenched constitution as it would tilt the
balance of power too far in favour of unelected judges and away from an elected House of Commons (AO3).
If the people are to write the constitution, this chance should be open to every generation which is impractical and
destabilising.
If each generation was to write its own rules, the constitution would be in a constant state of flux and difficult to
understand suggesting that codification is an impractical idea (AO2), reflecting the view that an ongoing process of
codifying the constitution would be divisive, damaging and create confusion (AO3).