A new Magna Carta? - Political and Constitutional Reform Contents


Part I

THE ARGUMENTS FOR AND AGAINST A WRITTEN CONSTITUTION FOR THE UNITED KINGDOM

Preface

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This Part sets out the advantages and disadvantages of a written constitution for the UK, expressed in plain language and in rhetorical fashion.[7] Many of the arguments overlap with one another and most are inter-related. Some represent a different way of expressing a similar point of substance to another. So too, some consequences of a written constitution are interpreted differently by proponents on each side of the debate in support of their case. No conclusions are drawn in this paper, leaving it to the reader to decide their own point of view.

I. The case for a written constitution

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Stated generally

The case for a written constitution is that it would enable everyone to know what the rules and institutions were that governed and directed ministers, civil servants and parliamentarians in performing their public duties. The sprawling mass of common law, Acts of Parliament, and European treaty obligations, surrounded by a number of important but sometimes uncertain unwritten conventions, is impenetrable to most people, and needs to be replaced by a single document of basic law dictating the working and operation of government in the United Kingdom easily accessible for all. Furthermore, it has become too easy for governments to implement political and constitutional reforms to suit their own political convenience, and entrenched procedures to ensure popular and parliamentary consent are required that necessitate a written constitution. The present 'unwritten constitution' is an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process. A written constitution would circumscribe the boundaries of the British state and its relationship with Europe and the world. It would become a symbol and expression of national identity today and a source of national pride.

The particular arguments

1  The United Kingdom does not have a constitution at all in the sense of a document setting down the rules and institutions for governing the country. The so-called 'unwritten constitution' exists only in the abstract. Matters of such fundamental importance should be codified into a single documentary constitution for all to see.

2  Many basic rules about British government do not at present exist in any legal form at all, but rely instead on unwritten understandings or traditions, most of which only the political elite understands and are inaccessible or unintelligible to ordinary people. Most of the rules governing the office of Prime Minister, for example, together with the powers and method of appointment of the post-holder, is nowhere committed into legal form, but rely instead on unwritten conventions of monarchy and its ancient royal prerogatives.

3  This abstract, mysterious constitution may work after a fashion, and fitted the deferential and class-orientated structure of society in earlier times, but in today's more equal society, and for the health of its democratic involvement, the constitution should be accessible and intelligible to all, not just the politicians who are running the country.

4  Furthermore, constitutional history is no longer taught in any depth in schools today, unlike in the pre-1945 era when it formed an essential part of civics and history classes at school. This means that the population is generally less aware of the landmarks and origins of customary government underpinning the unwritten conventions of the political system, making it all the more important that the constitution is written down in a single document.

5  Even for parliamentarians and experts some constitutional rules operating as unwritten conventions remain unclear or ambiguous, including some of serious national importance. For example, there is a debate over the existence and scope of any constitutional rule that parliamentary approval is necessary before the government enters into armed conflict abroad or starts arming opposition groups in foreign countries. On such matters, there should be clarity which a codified written constitution would provide.

6  The rules about our core institutions of government, especially the executive (ministers and civil servants), the legislature (the two Houses of Parliament) and judiciary, are of a fundamental and different character to other kinds of law. They should be clearly distinguished from ordinary law and codified in a special document, becoming the United Kingdom's 'written' constitution.

7  The process of making political and constitutional reforms in recent years has become seriously flawed, often with inadequate public and parliamentary consultation on important measures affecting the UK's political system. Governing parties can too easily push measures onto the statute book to change the country's constitutional rules simply to benefit themselves. An entrenched written constitution would redress this problem, setting down a minimum set of procedures that govern major constitutional changes.

8  In a democracy the people, not Parliament, are sovereign. The idea of 'parliamentary sovereignty' emanates to a large extent from the seventeenth century, signifying the supremacy of an Act of Parliament over the Crown's prerogative after the Civil War and Glorious Revolution of 1688. It is an untenable doctrine today that there are no limitations at all on what Parliament can legislate about, however repugnant, totalitarian or unpopular. In practice, parliamentary sovereignty is wielded by the government of the day and not Parliament as such. Parliamentary sovereignty is an anachronism in the democratic era, and needs replacing by a written constitution that expresses the sovereignty of the people and circumscribes the powers and duties of members of Parliament in both Houses.

9  The process of establishing a codified constitution would give the people a role for the first time in determining the central principles of the constitution of the UK on which they have never been fully consulted.

10  Currently local government, particularly in England, is subject to constant interference in its legal responsibilities and funding by central government. Its lack of a constitutionally delineated sphere of fiscal and policy autonomy reduces the influence people have on issues relevant to their everyday personal lives, and serves as a disincentive to popular engagement in their local communities. A written constitution would entrench the functions and powers of local government, enhancing their local independence, and end the continuous process of centralisation that has occurred in recent decades.

11  A written constitution would make the different regions of the country more fully integrated within the United Kingdom. The complex asymmetrical structure of Scottish, Welsh, and Northern Ireland government in the United Kingdom, with each at present having different rules and institutions in various statutes and with no regional tier of government for England, needs rationalisation and the coherence that only a written constitution can provide, setting down the underlying principles and processes governing the different parts of the Union.

12  Public trust in ministers, parliamentarians and civil servants has been in a state of decline, if not crisis, in recent times. To help buttress public confidence in the political system, a clear structure of controls and safeguards needs to be codified into a written constitution that ensures their integrity and standards.

13  A written constitution would not mean losing Britain's sense of history. Any historic institutions and ceremonies of past centuries that remain valuable for today, including the monarchy, can simply be codified into a written constitution but with clarity over their modern roles, duties and functions.

14  Opinion polls show clear popular support for a written constitution, especially when asked about the desirability of setting down clear legal rules within which government ministers and civil servants are forced to act.

15  A written constitution would become the most prominent national document in the country, with great symbolic as well as legal importance. It would have a beneficial educative effect in society, for young persons at school and the country in general, on how the system of government should work and people's rights and responsibilities.

16  The present constitution as it has evolved in recent times has become one of 'elective dictatorship', lacking separation in powers between executive, legislature and judiciary, and a system of checks and balances on ministers in office. Under the unwritten constitution, the policies and actions of the prime minister and Cabinet dominate the whole legal and political system through its party majority in the House of Commons, a weak House of Lords, a neutral Head of State (the Queen), and the absence of a constitutional court.

17  There is a growing dissatisfaction among parliamentarians with important elements of our constitutional law, such as the arbitrary nature of the Crown prerogative powers (for example, in changing or restructuring government departments, or entering into armed conflict abroad), and a lack of clarity around the working of certain areas of government (such as the transfer of power following an inconclusive election result). A written constitution would address these concerns, codifying the prerogative powers and making them subject to parliamentary or other controls, and replacing greys areas of constitutional conduct by clear legal provisions.

18  Piecemeal codification of disparate parts of the political and constitutional system has been taking place in recent years, but in an informal and disconnected way. This includes circulars issued by government (such as the Ministerial Code, Osmotherly Rules, and the Cabinet Manual), 'soft' law measures (such as the Code of Conduct for Members of Parliament, and the Code of Conduct for Members of the House of Lords, issued by each House of Parliament), and in parliamentary statutes such as the Human Rights Act 1998 (citizenship rights), Constitutional Reform and Governance Act 2010 (creating a statutory basis for the civil service and for the parliamentary scrutiny and approval of treaties) and Fixed-term Parliaments Act 2011 (codifying the law on general election timing). This process towards codifying government needs to be joined up and completed in one comprehensive and coherent document forming a written constitution.

19  Though not essential or necessary to the enactment of a written constitution, its preparation would provide the opportunity, if wished, for public deliberation on a number of selected individual reform proposals, such as replacing the Human Rights Act with a new Bill of Rights, strengthening the House of Lords, creating a new office of Prime Minister, calibrating the relationship between local and central government, and making aspects of the electoral system more representative. A written constitution would also be an opportunity to settle the future of the monarchy, both its permanence and place in a modern democracy, and codify the often contradictory and out of date laws and conventions that circumscribe how it works.

20  Achieving cross-party and wide public agreement on many core principles to go into a codified constitution would be easier than is sometimes imagined. Few would dispute, for example, the need for regular meetings of Parliament, for governments to command the confidence of the House of Commons, for judicial independence, and for free and fair elections.

21  A written constitution would be a confident expression of the United Kingdom's national identity, both at home and internationally. Such a document would be a proud assertion of British-ness and the institutions, values and principles the country espouses. It would more effectively delineate the legal and political boundaries of the British state in its international relationships, especially those with the European Union, but also with the United Kingdom's Overseas Territories, the Commonwealth, and the rest of the world. Every other major democratic country in the world, except two, has a written constitution, serving as important symbols of national unity and pride. It is ironic that Britain was in the vanguard of major constitutional documentation in the western world, such as Magna Carta 1215 and the Bill of Rights 1689, but has failed to produce one for the democratic era. There are no good reasons or inherent difficulties about establishing a written constitution for the United Kingdom, codifying the law and workings of its system of government and its relationship with its people.

II. The case against a written constitution

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Stated generally

The case against a written constitution is that it is unnecessary, undesirable and un-British. The fact that the UK system of government has never been reduced to a single document is an indication of the success of the Westminster system of parliamentary democracy and the stability it has brought to the country. This is in contrast to most other countries whose written constitutions were the product of revolution or independence. The unwritten nature of the constitution is something distinctively British, it reminds us of a great history, and is a source of national pride. Contrary to claims that it is out of date, it is evolutionary and flexible in nature, more easily enabling practical problems to be resolved as they arise and individual reforms made, than would be the case under an entrenched constitutional document. While some are concerned about the supposed existence of an "elective dictatorship" and inadequate checks and balances in the political system, there is in fact a wide range of considerable pressures exerted upon ministers seeking to make controversial changes. A written constitution would create more litigation in the courts, and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation, when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There are so many practical problems inherent in preparing and enacting a written constitution, there is little point in considering the matter. As a public policy proposal it lacks of any depth of genuine popular support and, especially given the massive amount of time such a reform would entail, it is a very low priority even for those who support the idea. An attempt to introduce one would be a distraction and might well have a destabilising effect on the country.

The particular arguments

1  The British system of government and its unwritten constitution works well in its present form and 'if it ain't broke, don't fix it'. It is impossible to codify the constitution without changing it, and change is not wanted.

2  Written constitutions around the world have almost always been initiated as a result of either a revolution or other domestic catastrophe, or a cessation or grant independence from a colonial power or larger political union, and none of these circumstances exist in the United Kingdom today.

3  The United Kingdom has an evolutionary system of government that adapts smoothly to changing social and political conditions, whereas a written constitution entrenching its institutions and rules would be more rigid and difficult to change with a danger that it might fossilise and become out of date.

4  The unwritten constitution allows a democratic Parliament to be the supreme determinant of law, rather than an unelected judiciary. If the written constitution carried a higher status and priority in law, as written constitutions normally do, then the United Kingdom's Supreme Court would be able to review the constitutionality of particular sections in Acts of Parliament, giving judges rather than elected politicians the final say on what is and what is not the law. If a Bill of Rights were to be included in a constitution of this nature, it would enable the Supreme Court to creatively interpret and apply its human rights articles in cases brought before them in a manner that effectively changes or creates new law, rather than leaving this to Parliament.

5  A written constitution would increase politically motivated litigation in the courts. It would expand the scope of judicial review actions against government ministers and departments; it would allow political opponents of the government to challenge its legislation using the courts; and it would cause uncertainty about the legality of controversial provisions in Acts of Parliament.

6  A written constitution would politicise the judiciary, requiring the courts (and ultimately the Supreme Court) to form judgments on questions of a political nature that should more properly be dealt with by politicians through the normal parliamentary process.

7  A written constitution would detract from the Crown serving as the United Kingdom's symbol of state ('Her Majesty's' government and loyal opposition, the 'Royal' Courts of Justice, the national anthem as 'God Save the Queen', etc.) and thereby diminish the significance of the monarchy that is the most popular of Britain's political institutions both at home and abroad.

8  Where greater clarity over the United Kingdom's political rules is required, an ad hoc process of codification has already been taking place, and can continue to do so. Thus there is a Ministerial Code dealing with responsibilities and procedures for ministers supervised by the Prime Minister and Cabinet Secretary; there is a Civil Service Code regulating ethics for officials supervised by the Civil Service Commission; and there is a judicially enforced code of civil rights and freedoms in the Human Rights Act. This approach is preferable to a comprehensive scheme of codification in a written constitution, because it is an approach that fits with the United Kingdom's evolutionary nature, it allows for each individual issue to be addressed and considered fully on its own merits, and it allows for the creation of particular enforcement mechanisms best suited to the particular constitutional rule or rules being addressed.

9  If advocates of a written constitution seek to argue that stronger judicial controls over government are needed, it is a fallacy that that insufficient judicial controls do not already exist. Judicial review and the power of the courts to invalidate administrative actions and provisions in parliamentary enactments has substantially increased in recent years, especially where European Union Law is concerned, where individual rights recognised by the Human Rights Act 1998 are concerned, or where there are limitations on central government legislation arising out of the Scottish, Welsh, and Northern Ireland devolution settlements.

10  A written constitution would curb the ability of elected representatives and their officials to act quickly and flexibly to meet citizens' needs. When dealing with such matters elected representatives and their officials would find their discretion curbed even more tightly than before because of the new raft of principles and procedures needed to be complied with if judicial review applications to the courts seeking to quash their decisions were to be avoided ('the judge over your shoulder', as this has been termed).

11  If advocates of a written constitution maintain that there are insufficient institutional checks and balances on the actions, decisions and policies of the executive (an 'elective dictatorship'), this is a simplistic analysis and the reality is very different, there being very considerable pressures on ministers making the implementation of controversial new measures or policies very difficult. These pressures come from the Opposition in the House of Commons, intra-party dissent from the government's own backbench Members in the House of Commons, the scrutiny procedures and cross-examination of the departmental select committees, the ability of the House of Lords to postpone and hold up legislation of which is disapproves, and the need for co-operation on certain matters from European Union bodies and Scottish, Welsh or Northern Ireland regional governments, as well as the glare of a critical mass media and the need to court public opinion to avoid the threat of being voted out of office at the next general election.

12  If advocates of a written constitution propose to codify the status quo, this will need to include some elementary guiding principles of the existing constitution, such as the Rule of Law, Sovereignty, and Judicial Independence, which are by their very nature broad and imprecise, open to varying interpretations in different contexts over a period of time. To include such declarations would be meaningless, except in a purely symbolic sense, as they are essentially non-legal and non-judicial in character, but to omit them would make the constitution incoherent and incomplete. In other words, a written constitution would add no benefit, and if anything, detract from the widely recognised underlying principles of the unwritten constitution.

13  A written constitution would most likely enshrine the doctrine of separation of powers, which in its strict form is alien to the essence of the UK constitution. The essence of the British constitution has been not separation of powers but a mixing and sharing of powers that has served the country well in terms of ministerial and administrative responsibility and accountability to Parliament and the electorate. Trying to impose separation of powers onto the British system of government would be an affront to the British constitutional tradition.

14  If a watered-down form of written constitution were to be proposed, codifying the status quo and making it either non-legal in effect or not enforceable by the judiciary, this would be less objectionable or contrary to the principle of parliamentary sovereignty and other fundamentals of the existing constitution, but would be a futile exercise for the very reason that it lacked proper legal sanction and remedies to deal with violations.

15  Any persons or lobby groups who support a written constitution because they regard it as a device for implementing a wide-ranging or 'joined-up' package of reforms (such as a United Kingdom Bill of Rights, an elected House of Lords, and the need for parliamentary approval to all prerogative executive powers), are misguided because each particular reform is better formulated, debated and scrutinised on its own merits, and would be dealt with less thoroughly than if just one item contained within a package of changes.

16  There is in reality no popular demand for a written constitution. Though opinion polls might appear to show majority backing for it when asked in public attitude surveys, there is minimal depth of feeling or support behind it, as well as little understanding of what it would entail. For the overwhelming majority of people, even among those who like the idea of a written constitution, it is a very low priority for government action in comparison to other matters.

17  The preparation of a written constitution would involve a huge and disproportionate amount of time and effort - in preparing the proposal and its various options, in carrying out consultation exercises, in holding debates in Parliament, and in arranging (most likely) a referendum. To attempt to foist a written constitution on the UK would be a diversion of scarce time and resources away from the most relevant social and economic problems facing this country. There are far more pressing public policy issues for the government and Parliament to address, such as economic recovery and improving the quality of public services.

18   If enacted, a written constitution containing any substantive reforms (as is almost certain) would cause disruption to the normal workings of government, and a series of direct and consequential changes in the revised procedures across all branches of state. If given any special status in law, the roles of elected representatives and their officials would be diminished in favour of lawyers with their mechanical rules and requirements that are inappropriate for political and administrative decision-making which requires more organic processes.

19  To initiate the process towards a written constitution would be to invite division and controversy at a time when the government should be seeking national unity. It would stir up conflicting emotions and prejudices about the future of the monarchy, the European Union, the House of Lords, the voting system, and human rights. The public, who do not give high priority to this venture, would be alienated from a government who prioritised such a policy over their main concerns.

20  Any study of written constitutions around the world shows that they only come into existence after a successful invasion, after a revolution, or some appalling failure in the polity and breakdown in the way government and politics were operating. The current malaise in the UK is nowhere near any of these catastrophic moments, and does not require a fresh start and a radical new way of conducting government and politics.

21  In the absence of any national crisis or catalyst making a written constitution necessary, it is idle to pretend that the main political parties could ever agree on the precise contents of a written constitution, even if all were to support the principle and desirability of codifying the constitution. Not only are the parties by their nature adversarial in outlook, constantly wanting to court popularity in media, scoring points over the other or embarrassing them, but there are sharp differences in ideological outlook (Europe, social rights, etc.) that would prove stumbling blocks to completion of the work, particularly if any substantive changes (a Bill of Rights, House of Lords reform, etc.) were proposed at the same time. There is therefore little point in considering the matter.



7  Forfurtherreadingonthedebateaboutawrittenconstitution,seetheancillarypapers,AndrewBlick,LiteratureReview,withbibliographyandcommentary(hereafter'LiteratureReview');andAndrewBlick,TheExistingConstitution,ontheelementsandspecialcharacteristicsoftheUnitedKingdomconstitution(hereafter'TheExistingConstitution'). Back


 
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© Parliamentary copyright 2014
Prepared 10 July 2014