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Analyze the Quote “Codifying the [UK] Constitution Is Either Unattainable or Pointless” Joshua Rosenberg, Law Society Gazette, July 2014

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Do we need a written constitution in Britain? The question is not a new one – I seem to have been writing essays on it since my schooldays – but it has now been raised by no less a body than the political and constitutional reform committee of the House of Commons. Looking ahead to the forthcoming 800th anniversary of an earlier constitutional document, the MPs ask whether it is time to start writing a new Magna Carta. For now, they have studiously avoided answering that question, though the committee would not have commissioned a four-year research project leading to a 420-page report if all its members were happy to leave things as they are

Reminding us that the UK, Israel and New Zealand are the only democracies in the world that have not codified their constitutions, the MPs are seeking public responses by 31 December, so that they can make recommendations before the general election.

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Furthermore, as mentioned above, constitutions differ enormously in substance. Although some rights are considered fundamental and shared by majority or all people, others are not. Should the UK constitution include e.g. social rights of citizens

Should it start with a preamble referring to ‘fundamental rights’ and if yes, what is the scope of those rights? This and many more difficult questions would have to be answered. Another problem with codified and supreme constitution is that it is likely to impinge on the separation of powers and create significant tensions between legislative and judiciary. Any Act of Parliament, voted for by majority of MPs, could be screened for compliance with constitution by judges who are not democratically elected. This would mean that there is still a possibility that there will be ‘elective dictatorship’, albeit in a court not in the Parliament. Although it may be argued that the constitutional court would add an additional ‘layer’ of protection, it may also mean that this potential benefit is offset by a decrease in legislative efficiency, increased controversy, delays and costs. On the other hand it may be argued that judges are impartial, able to make well reasoned and necessary but unpopular decisions. Given the above, it appears that there is no need to make a fundamental change to the system which has been working successfully for over 300 years. The fact that the majority of countries have a written constitution is not an indication that UK should follow the same path. Furthermore, it appears that both theoretical and practical problems involved in codification and the extinction of the doctrine of Parliamentary Supremacy well outweighs the potential benefits.

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The first step to find out whether the UK has a constitution is to determine what exactly constitution is. According to Oxford Dictionary of law, “constitution” is defined as “the rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state” (Martin, 2003, p. 108). The dictionary entry further mentions that the majority of the countries dispose of a written document as their constitution. One of the main properties of such a disposal is a possibility to alter a constitution through a special procedure, whereas no such procedures are needed to change the statutes, of which the UK constitution partly consist. However, it also consists of common law rules and constitutional conventions (Martin, 2003, p. 108), which are hard or impossible to amend. Constitution establishes principles that dictate who is allowed to make laws and how, what should be the relations between the main institutions of government, what are the rights and freedoms of citizens and how those are protected and guaranteed (Elliott & Quinn, 2007, p. 1). In general, the term “constitution” refers to the set of rules, according to which a government operates, rather than to a document. In case if those rules are not written or codified (i.e. collected in a single document), they are still defined as a constitution.

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Usually, for the judges’ views to carry weight, their position in the constitution must be secure. The government — and parliament — must agree in advance on the courts’ ability to limit prerogative powers. In other countries, such an agreement would form part of a written constitution. But codifying the UK’s uncodified constitution would be an endless task

The way forward is clear: we need another Constitutional Reform Act.

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Elliott, C., & Quinn, F. (2007). English legal system (8th ed.). Harlow, UK: Pearson Education Limited.

King, A. (2001). Does the United Kingdom still have a constitution? London, UK: Sweet & Maxwell.

Martin, E. (2003). Oxford dictionary of law (5th edition). Oxford, UK: Oxford University Press.

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