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Uk full
Specification point one, nature + sources of the uk constitution
Codified/uncodified
25 markers to do:
- Should the uk adopt a codified constitution?
- To what extent does the uk constitution protect rights?
- To what extent is the uk constitution good at holding the executive to
account
1.) should the uk adopt a codified constituion
Para one: A codified constitution would give unelected judges too much power.
Ao1: A codifed constitution would increase the power of unelected judges, who would be able to
interpret the constitution to mean as they intend it to. Currently, parliament takes precedence
over judges as in the case of the terrorist asset freezing act. The Act was passed following the
HM Treasury v Ahmed ruling by the Supreme Court of the United Kingdom on 27 January 2010
that asset-freezing orders made under the United Nations Act 1946 were unlawful, because the
1946 Act was not intended to authorise coercive measures which interfere with fundamental
rights without parliamentary scrutiny. The Terrorist Asset-Freezing (Temporary Provisions) Act
2010 is an Act of the United Kingdom Parliament to make provision for the temporary validity of
certain Orders in Council imposing financial restrictions on, and in relation to, persons
suspected of involvement in terrorist activity; and for connected purposes
Ao2: This shows how parliament can utilise the uncodified nature of the constitution to protect
the security of the country. Whilst this does ultimately reduce rights in the uk, it can be argued
as essential to protect the safety of uk citizens.
Ao3: However, under the current system, judges do not have enough power due to the role of
ouster clauses. In the illegal immigration act, Ouster clauses are provisions inserted into
legislation to prevent judicial review challenges that target particular decisions by public bodies.
This is contained in Clause 12, which ousts judicial review of unlawful detention for the first 28
days of detention, except where the Secretary of State or an immigration officer is alleged to
have acted in bad faith or to have committed a fundamental breach of the principles of natural
justice. While the right to liberty is not absolute, the right to liberty to be free of arbitrary
detention is considered one of the oldest and most emphasized human rights in constitutional
thought. By ousting judicial review of broad detention powers, the Bill seeks to remove a key
,requirement of the Hardial Singh principles, which form the cornerstone of UK protections of the
right to liberty. This is that it is for UK courts to decide on the “reasonableness” of detention, not
the UK Government, including what constitutes a reasonable period of detention. In removing
this essential safeguard, the Illegal Migration Bill puts the right to be free from arbitrary detention
at great risk. Barrister, Krishnendu Mukherjee of Doughty Street Chambers, has described this
Ouster Clause as “an attempt to avoid the legal scrutiny of decisions which interfere with the
fundamental liberty of individuals”.
Ao2: As such, the constitution should be codified as under the current system the judiciary does
not have the power needed to adequately defend rights. The power of judicial review being
restrained by ouster clauses shows how unregulated parliamentary sovereignty reduces
individual rights
Ao3: However, the judges have a sufficient amount of power due to common law. (judge made
law) in the case of R v R 1991, the uk judiciary redefined rape to include marital rape, which
was not parliaments original intent behind the law. As such, the unelected judiciary already have
a substantial amount of power, with some potentially arguing that it is too much.
Ao2: Therefore, the judiciary already is powerful, and can use its power to protect rights. In this
sense, we do not need a codified constitution to increase judicial power.
Conclusion: The UK should NOT adopt a codified constitution.
Para two: A codified constitution would better protect rights
Ao1: currently, due to parliamentary sovereignty, parliament is able to take rights away. The
policing crime courts and sentencing act, for example, increased restrictions on “unacceptable”
protests, subsequent “kill the bill” protests were held, arguing it went against key uk rights.
Ao2: Interestingly, the bill can be traced back to the policy exchange think tank, who received
donations from oil, energy and gas companies such as E.ON and drax who would have been
damaged from the use of fossil fuels. The act was introduced in response to policy exchange
calling extinction rebellion extremists. This potentially suggests that corporations have influence
in the uk legislative process, which includes being able to remove rights. Therefore, a codifed
constitution is needed.
Ao3: However, this is not significant, as the house of lords (often called an ammendment
chamber) is able to protect rights. In 2001, 10 defeats in the house of lords led incitement to
religious hatred to be removed as an offence from an anti terrorism legislation, as it would have
threatened the individual right to self expression.
Ao2: as the house of lords is filled with experts, this means the uk does not need a codified
constitution to protect rights, as they do it sufficiently already through the bicaramel legislator.
Ao3: The house of lords does not have the level of power needed to ensure proper protection of
rights in the uk, due to its lack of democratic legitimacy. The salisbury convention means that
will not oppose the second or third reading of any government legislation promised in its
,election. For insatnce, in the UE withdrawal agreement act, they sent it back to the house of
commons with 5 suggested ammendments, such as continuing the ERASMUS scheme. All
were rejected, so the house of lords backed down, recognising a lack of legitimacy.
Ao2: In this sense, they cannot and will not oppose rights violations outlined in the manifesto
on the basis of convention.
Conclusion: A codified constitution should be introduced to protect rights.
Para three: a codified constitution would decrease parliamentary soverignty
Ao1: parliament needs to retain its sovereignty in order to quickly pass legislation. The
coronavirus act 2020. The act was introduced to parliament on march 19th 2020, and receieved
royal assent on the 25th march.
Ao2: therefore, parliament needs to retain its sovereignty to respond quickly in times of crisis. In
order to keep it up to date, Conceding to concerns from both Conservative and Labour MPs
over infrequent parliamentary scrutiny, on 23 March the government itself amended the bill to
require parliamentary renewal of its powers every six months
Ao3: Though, the speed in which acts can be introduced poses a threat to their scrutiny. The
illegal immigration act spent merely two days in the committee stage of the house of commons,
in a committeee of the whole house. CWH is a format poorly suited to detailed scrutiny – unlike
in public bill committee, clauses, schedules and amendments have to be discussed in large
groups, opportunities for detailed discussion and decision on specific proposals are limited and
ministers do not need to respond in detail to all the points made in debate. Because voting takes
up time, any questions pushed to a vote cut at least 15 minutes from debate. And, unlike in
public bill committee, there is no opportunity for evidence taking and there are no pauses in
between committee meetings to allow MPs time to reflect. CWH is suited to wide-ranging
debate, speech-making but not ones like this
Ao2: this shows that standing orders surrounding how the legislative process should function
are not adequate scrutiny. By having a codifed constitution that ensures more rigious scrutiny of
legislation, it avoids legislation being rushed and potentially harming rights.
Ao3: However, this is an exception as bills generally go to public bill committees as opposed to
a committee of the whole house. the immigration Act 2014 had 11 committee sittings and
received 66 pieces of written evidence
Ao2: As such, parliament is not too sovereign as the legislative process means each piece of
legislation receives intrinsic scrutiny which enforces it to be its best self.
Conclusion: parliamentary sovereignty should not be reduced by a codifed constitution as
committees propose essential checks and balances to it if needed, and they need to pass
legislation quickly in case of emergency.
, Para four: a codifed constituion would decrease executive power
Ao1: johnson amended the ministerial code to mean that ministers do not have to resign for
breaching codes of conduct. No 10 said a new version of the ministerial code, published on
Friday alongside a government statement saying it is “disproportionate to expect that any
breach, however minor, should lead automatically to resignation or dismissal”, has the backing
of the Committee on Standards in Public Life and Lord Geidt, the adviser on ministerial
interests. Ministers who knowingly mislead parliament are usually expected to resign – which is
stated elsewhere in the code. However, Downing Street declined to say if Johnson would resign
if found to have done so. One reason given for changing the rules was to “avoid incentives for
trivial or vexatious complaints, which may be made for partisan reasons”.Chris Bryant, the
Labour MP and chair of parliament’s standards committee, said the weakening of the system
was “appalling”. “The new ministerial code is a disgrace. It means that the tiny semblance of
accountability disappears. ‘If you break the rules, just rewrite the rulebook’ is the motto of this
despicable government,” he said.
Ao2: this shows how the ministerial code is not secure enough to guarantee adequate checks
and balances, as it can simply be altered. With a codified constitution, this would be entrenched,
and therefore very hard to change unless deemed redundant potentially by a supermajority.
Ao3: the wright reforms have inceased backbencher powers, and therefore they have better
oversight over the cabinet. The Back bench business committee (BBBC) established through
this limits executive dominance of the parliamentary agenda and timetable. They held a debate
in 2023 where they scrutinised the future of the NHS, for instance.
Ao2: as such, an uncodified constitution means that there already are checks and balances,
which have been solidifed via key reforms.
Ao3: the power of backbenchers and thus their scrutiny is limited by the carrot and stick whip
system. In the 2023 parliament the rebellion rate was merely 2% with the most rebellious mp,
david davies, having 12.6% rebellion rate.
Ao2: this can limit checks and balances in parliament as backbenchers may not even read the
bill theyre voting on, merely vote along parliamentary lines
Conclusion: a codified constitution is essential for checks and balances.
2.) to what extent does the UK constitution protect rights?
Para one: the human rights act
Ao1: the human rights acts aim was to incorporate into UK law the rights contained in the
European Convention on Human Rights. The Act makes a remedy for breach of a Convention
right available in UK courts, without the need to go to the European Court of Human Rights
(ECHR) in Strasbourg. This is secured by a joint committee on human rights, which consists of
members from both the HOC and the HOL. For instance, they noted that the rwanda bill is not
compatible with human rights,
