Mapping the path to codifying – or not codifying – the UK’s constitution

Written evidence submitted by Unlock Democracy (CDE 07)

About Unlock Democracy

1. Unlock Democracy is the UK’s leading campaign for democracy, rights and freedoms. A grassroots movement, we are owned and run by our members. In particular, we campaign for fair, open and honest elections, stronger parliament and accountable government, and a written constitution. We want to bring power closer to the people and create a culture of informed political interest and responsibility.

Introduction

2. We welcome a parliamentary inquiry into this area, which is long-overdue. The overall position of Unlock Democracy is that, as a matter of democratic principle, the UK should have a ‘written’ or ‘codified’ constitution. We believe that a codified constitution should be drawn up by a constitutional convention made up of members of the UK population. We have already set out our views on how this should be achieved in our evidence to the Committee’s inquiry on constitutional conventions so will not re-visit those issues here.

3. In the following submission we set out our position on why the UK’s constitutional settlement should be codified in more detail, responding to the research paper published on the Committee website, and in particular to the questions included at the start of the document.

1) How significant is the lack of a codified UK constitution?

4. The lack of a codified UK constitution is highly significant for a number of reasons. First, people of the UK do not know what are the rules regulating the way they are governed. Second, clear constitutional restraints on public authorities, particularly UK central government, are lacking and individual rights are not as well protected as they might be under a codified constitution. Third, there has never been a democratically-designed constitutional convention to devise a constitutional text and express within it the principle that it belongs to the people: the principle of popular sovereignty, which cannot be achieved without a codified constitution. Fourth, it means that the way in which the constitution changes is not subject to any clear procedure, with those already in positions of power best-placed to alter the constitution to suit their own needs. Fifth, it puts the UK in an unusual position internationally. Nearly all other democracies have codified constitutions.

2) What are the main a) advantages and b) disadvantages for the UK of an uncodified constitution?

5. The disadvantages of an uncodified constitution are far easier to discern than the advantages. The lack of popular sovereignty, the uncertainty about constitutional arrangements and how they should be changed, the lack of constitutional restraints on the UK Government, problems with the level of protection for human rights, the failure of the UK to accord to international democratic norms, are all clear defects from a democratic standpoint. The supposed advantages of an uncodified constitution often contradict each other-such as its supposedly being both flexible and possessing continuity, and could just as easily be seen as problems, because they work to the advantage of those who hold power and are able to change the constitution or keep it as it is, according to their particular requirements.

3) Are current arrangements for the amendment of the UK constitution satisfactory?

6. Arrangements for constitutional change in the UK are unsatisfactory because of their inconsistency and the potential for manipulation, in particular by the UK executive. At present the UK constitution may be changed by a wide variety of means: through legislation, sometimes involving referendums, even simply through the development of a new convention (for instance the recently invented principle that Scotland can secede from the Union subject to a referendum in Scotland). Once again it is those who hold power, in particular central government in the UK backed by a majority in the House of Commons, who play the largest role in deciding which methods will be applied. As a consequence some major changes have taken place without referendums-including the introduction of the Human Rights Act 1998 and the establishment of a UK Supreme Court (by the Constitutional Reform Act 2005). Often constitutional change is conducted in an exclusive fashion, not fully involving groups outside central government. Some constitutional legislation, such as the Fixed-term Parliaments Act 2011, has been introduced with only minimal consultation conducted. By contrast other constitutional change has involved the specific assent of the electorate. The introduction and development of devolution in Wales has involved two referendums (in Wales) already; and under the European Union Act 2011 relatively minor treaty changes may require UK-wide referendums. When the people are involved in a constitutional decision through a referendum, the options available to them may be restricted, as with the referendum on voting systems for parliamentary elections in 2011, which did not offer a proportional representation system as an option. While referendums are not the only legitimate means of bringing about constitutional change, more consistency and inclusiveness is required, and a constitutional change procedure set out in a codified constitution seems the best method of achieving it.

7. A further problem with constitutional change in the UK is its piecemeal nature. Because of the relative ease with which powerful players can bring it about, it is often enacted quickly and without due regard to the overall framework within which it will sit. A codified constitution, with specific procedures that have to be followed, might encourage a more reflective and reasoned approach. The existence of a text setting out the constitution would encourage more awareness of the overall system which was being modified.

4) Is the current role for the judiciary in upholding basic constitutional principles and rights satisfactory?

8. At present it is not possible for the judiciary to review any official actions or legislation explicitly on a basis of their constitutionality. The courts may conduct forms of judicial review, including under the Human Rights Act 1998, which take on a constitutional character. But even in these circumstances the courts are limited in what they can do. Except in exceptionally limited circumstances it is not possible for a court actually to disapply an Act of Parliament. The relative constitutional weakness of the judiciary means that constitutional limits on a UK government, supported by a majority in the Commons, are not as strong as they should be; and individual rights are not sufficiently protected. The best means of rectifying these defects would be the introduction of a codified constitution, which would make possible explicit constitutional review by the judiciary of official actions and legislation, and might include within it provision for the disapplication of Acts of Parliament in so far as they were found to be in conflict with the constitution.

5) What difference would codification of the UK constitution be likely to make? Are there any particular difficulties it might resolve? Are there any problems it might create?

9. Constitutional codification could help create a constitution that was better and more widely understood, more effectively enforceable, was amended in a more rational, inclusive fashion, and collectively owned by the population as a whole. Furthermore a democratic constitution-building exercise could provide a means of considering problematic constitutional issues that have proved difficult to resolve, including which voting system to use for elections to the House of Commons and the composition of the House of Lords. In this kind of process any changes could be considered as part of a whole rather than as a series of unconnected one-off changes that may conflict with one-another. A healthy debate about the future of the UK, perhaps promoting greater cohesion for this multinational state, could be held.

6) What are the prospects for the introduction of a codified UK constitution? What sort of circumstances might be conducive to such a development and how likely are they to come about?

10. It is difficult to predict precisely when and how a codified constitution might come about. But we note an increased tendency for parts of the UK constitution to become written down, included in various different codes and laws, and for rapid change in the make-up of the UK constitution in recent times. Both these trends might point towards an eventual complete codification of a new constitutional settlement for the UK.

11. However it is worth noting that New Zealand has taken a different approach and has chosen to codify specific sections of their constitutional settlement, for example the length of term for a parliament, rather than seeking to draw up a new constitution. The Electoral Act 1993 specifies that certain core provisions-sections of this and other Acts-can only be changed by a 75% majority in the House of Representatives or by a referendum. This may also be a model which could be considered for the UK although we would hope that it would be accompanied by a programme of citizen involvement in deciding what the core provisions that we would like to be codified are.

12. Unlock Democracy believes that the best way of bringing about a codified constitution would be through a UK government taking office with a commitment to instigating a constitutional convention; but then taking a step back from the process. It could establish a body, preferably made-up of a balanced sample of the UK population chosen at random, charged with considering the possible content of a constitutional text and making proposals. It would be to some extent removed from the party political arena and better placed to develop decisions for the country as a whole. This convention would be provided with sufficient time and resources, such as expert advisers, to carry out its task effectively. Ideally the Government would commit itself to directly submitting the recommendations the convention made for ratification without altering or interfering with them. This ratification might involve a referendum of the UK population, or perhaps approval by the UK Parliament and all of the UK devolved legislatures.

October 2012