PUBLIC LAW

Public Law

Public Law

Introduction

Codification of the British constitution, even codification that does not alter the structure of state in a significant way, provides three remedies to the current situation. Firstly, and most importantly, the codification of the constitution would elevate a written document to supreme status, displacing Acts of Parliament as the supreme law of the land. As demonstrated by the gradual rise of the House of Commons and the recent examples of boundless and arbitrary lawmaking, there no longer exist sufficient checks and balances in government to render Acts of Parliament suitable for such supremacy (Alan, 2007, 10).

Discussion and Analysis

A codified constitution, and a judiciary equipped with the power of judicial review to ensure adherence to the constitution, would act as a ring around Parliament, however broad or narrow such constraints may be, that would act to confine its actions and provide explicit limits on government power, replacing the implicit checks on the Commons that have gradually been eliminated over the course of the preceding three centuries. Some such confines already exist informally, such as the desuetude of bills of attainder and ex post facto legislation throughout the preceding two centuries.

Yet these are not real limits and must be codified, as Parliament has legitimately passed such legislation in the past, and retain the power to do so due to Parliamentary sovereignty. Second, codification of the constitution would slow the rapid changes in the structure of government that has accelerated in recent years. For example, the unsettled and volatile status of legislatures in Wales, Scotland, and Northern Ireland would be resolved, the powers of government would be delineated, and a great deal of arbitrariness would be eliminated as further change would presumably proceed through a more level-headed and controlled amending process, a significant improvement to the system of majority vote in Parliament that can radically alter the structure of government overnight.

Third, codification would accumulate centuries of constitutional procedure and tradition into one, readily available document that could be accessed and referred. This would illuminate and decode the obscure and unfamiliar parts of the constitution, freeing scholars, members of the government, and, perhaps most importantly, the general public, from the uncertainty that currently defines much of the constitution. As mentioned above, a codified constitution need not imply radical change in government.

Similarly, the Crown could be accommodated under such an arrangement, and would maintain its informal and formal duties and privileges. Limits on government power that already exist in statutory law could be translated into constitutional restraints such as accepting twenty--eight days as the upper constitutional limit on detention without charge. Codification could be used as a tool not to remake government, but simply to strengthen the rule of law, increase stability, elucidate the powers and limits of government, and prevent the recession of future government into a more intrusive or authoritarian form (Graham, 2005, 320).

Nevertheless, more than the mere codification of existing conventions and the displacement of Parliamentary sovereignty with constitutional government, the codification of the constitution would ...