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
__________________________________________________________
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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