Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement.

Firstly, the fact that the UK’s constitution is not codified in a single document means that the place of certain key mechanisms is not entirely clear. This lack of clarity has exacerbated recent political crises in the UK. The legal status of referendums, for example, has never been properly set out. Referendums have not traditionally been regarded as a part of the UK constitution – Clement Attlee famously described them as ‘alien to our traditions’ and too often ‘the instruments of Nazism and fascism.’ Do referendums easily sit with the principle of parliamentary sovereignty? 

Secondly, although Britain does have a Human Rights Act, that legislation does not enjoy the same status as a list of fundamental rights in a codified constitution. It is not entrenched, and does not enjoy any special protection – It could be repealed with a majority of just one MP. Indeed, the Conservative Party has in the past said it would replace the Human Rights Act, and its most recent manifesto talks of ‘updating’ it. Brexit may compound the situation, as the EU’s Charter of Fundamental Rights will not be carried over. Professor Douglas-Scott stressed that the entrenchment of fundamental rights in a written constitution would not necessarily entail ‘judicial activism’. There are other ways of entrenching important constitutional fundamentals, such as with a parliamentary super-majority.

Finally, Professor Douglas-Scott argued that the current devolution settlement cries out for a written constitution that properly sets out the position of the devolved administrations. The minimal role played by these administrations in the Brexit process – frequently decried by the likes of the SNP and Plaid Cymru – lays this bare. Some sort of federal arrangement which gives entrenched protection to devolved matters is needed. But it might be too late, and the UK risks falling apart.

It would be possible to draw up a codified constitution for the UK, whether it be by a royal commission, Speaker’s conference, constitutional convention, or by crowdsourcing. It was argued that whatever path was taken, it would be crucial to involve citizens from across the UK; it must not, in Professor Douglas-Scott’s opinion, be a conference of experts.

What should be in the constitution? It would have to accommodate the entrenched protection of fundamental rights. This would necessarily, at times, involve overriding parliamentary sovereignty, which would change the very nature of our constitution. It would also have to entail a complete and clear devolution settlement. Finally, it should involve a re-evaluation of our electoral system. It should consider changing First-Past-The-Post to a system of Proportional Representation, and stifle parliament’s ability to pass (and repeal) extremely important legislation with a majority of just one vote.

The argument against a written constitution: Nicholas Barber

‘Constitutional amendment is like fixing a ship at sea. When sailing a ship at sea, you often need to repair bits of it: repair planks and masts and what not. But on no account should you try and repair the whole of your ship whilst at sea, because you will sink.’

Professor Barber began by contending that over the past few years the constitution has functioned well: ‘The constitution has shown itself flexible enough to deal with what has been an unprecedented political – not a constitutional – crisis.’ He argued that if we had possessed a written constitution none of the constitutional problems caused by Brexit would necessarily have been averted; as a test case, looking at Vernon Bogdanor’s 2007 mock codified constitution shows that had we adopted a written constitution at that point, we might have ended up with exactly the same constitutional problems arising a decade later.

Professor Barber asserted that arguments for a written constitution need to be distinguished from specific arguments for constitutional reform. For example, arguments for Proportional Representation, for addressing devolution, or for reforming the House of Lords are not arguments for an all-encompassing written constitution; they are arguments for constitutional reform. He also disputed the suggestion that entrenchment is impossible without a written constitution. The Factortame case demonstrated that the European Communities Act 1972 is entrenched, as the Merchant Shipping Act 1988 had to cede to it. If there was an attempt to entrench the Human Rights Act, it would probably be upheld by the courts.

So, Professor Barber proceeded by evaluating and countering the arguments for a written constitution, rather than constitutional reform. He identified two groups of arguments. The first of these arguments relates to process: that there is something inherently valuable in the act of drawing up a codified constitution. In his lecture entitled ‘The Democratic Case for a Written Constitution’ Jeff King argued that democracy requires that the people should be the authors of the rules which govern them. For King, not only do we need a written constitution now, we also need this document to be rewritten every 20 years of so: if democracy requires that we author our own constitution, it requires the next generation be given the same opportunity. Though there would be some value in such an exercise, it would radically destabilize the constitutional order. Would we really want the devolution settlement, the Northern Ireland agreement, the Human Rights Act, the electoral system, reconstructed every two decades?

The second argument in favour of a written constitution has been made by Vernon Bogdanor: that people are entitled to know the rules of the club. In other words, citizens of the UK should be able easily to refer to the laws and principles which underpin the state. But the realities of a written constitution, according to Barber, undermine the force of this argument. Written constitutions are either so short so as to be poor guides to the rules which govern the state in reality (like the American Constitution), or so long so as to be, for most people, unusable as a guide (like the South African Constitution). Furthermore, there is always a gap between written constitutions and the actual rules which govern the state: ‘many constitutions around the world are pretty much works of fiction’. Even in cases where written constitutions are representative of the reality, the document will become obsolete with time. The way to facilitate understanding of the constitution is to draft legislation in an accessible fashion, as is the case with the Human Rights Act. It is not, Barber contends, to draw up a codified constitution.

Professor Barber then moved on to the potential harms of a written constitution. The first is that ‘it opens questions which don’t need to be opened’. An obvious example is whether or not we should have a monarchy. A constitutional convention, however, would have to consider this question alongside other issues such as House of Lords reform. Major questions such as these should not be lumped together.

There is a value in allowing different, and sometimes conflicting, visions of the state to coexist within a single constitutional order. People in the UK might identify with its constitution because of the monarchy, or because of the democratic structure of the House of Commons, or because of the legal egalitarianism of the Human Rights Act. A great strength of the UK’s constitution is that it enables people to do so without necessarily agreeing with other features. Codifying the constitution might compromise its legitimacy by exposing and attempting to remove some of its contradictions. ‘Don’t assume that clarity is a good thing in constitutional terms.’

Finally, codifying the UK’s constitution would risk over-empowering the judiciary by enabling judges to get more involved in our political processes: many core constitutional rules in the UK are conventions. Would we want, for example, the Queen’s decision to appoint a Prime Minister to be judicially reviewable? 

This blogpost is a summary of the event, and does not include the contributions of either speaker during the lively Q&A that followed their presentations. The event in full can be viewed on our YouTube channel here. And if you enjoy the Constitution Unit blog, sign up for updates in the left sidebar, join our mailing list for news of our events and research, and support us through a one-off or regular donation. Donations are crucial to funding the blog, and the Unit’s research.

About the author

Harrison Shaylor is a former Research Volunteer at the Constitution Unit. 

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