Wednesday, 3 February 2010

Do we need a written constitution?

A written constitution seems to be an idea which is not going away. Gordon Brown raised it again yesterday (2nd February) in a speech to the IPPR.

Is this just an idea based on the simplistic notion that because almost everyone else has one then so must we? Will it actually increase the powers of the government and reduce the freedoms of the citizen or will the reverse of that apply? I am not persuaded that we need one. Even if we have one, what should be in it and what should be left out? If we get one, how would it be amended? Who tells us what it means? The USA has one but it hardly stopped the President opening Guantanamo Bay.

I would not entirely rule one out but I need a lot more persuasion of the need for it. Here is another person's view – Of Interest to Some Lawyers – blog.

Addendum 30th March:  The views of barrister Carl Gardner may be seen at Head of Legal.


  1. If Noo Labor had any hand in it it would increase the powers of the executive and decrease the freedoms of the citizens. Actually, I suspect that would apply almost regardless of the makeup of the government but possibly to a lessor extent.

  2. I cannot see what a written constitution would give us. The US needed one because it was a new country and needed to show how it would avoid the mistakes that existing ones made - obviously we know how well that works in more recent times.

    Having a UK constitution would mean a torturous document that would have to be carefully worded so as not to contradict existing English or Scottish laws and so as not to contradict EU regulations and laws. How would one put the right to trial up against the European Arrest Warrant?

    This is a terrible idea as recent governments seem unable to draft simple regulations, let alone a constitution!

  3. There is a written constitution all ready to be enacted - lawyers drafted in for the IPPR years ago. I cannot find a copy on the web - but this article describes it -

  4. My argument is not a complex legalistic one: rather a simple thought based on recent experience. we have seen a large number of cases where ministers are saying "we didn't think xxx would be the outcome of the new law/regulations". Examples include the implementation of much health and safety legislation (abolition of doormats in old peoples' homes), prosecution of homeowners for posession of knives, age validation for purchase of a slice of quiche or at the other extreme, conditional cautions for serious assaults.

    If I thought the constitution would be drafted to be comprehensive and appropriate then I might (note might, not would) be in favour. The portents however are not good. If we have a constitution where the response from those framing it is "we wpould never do that in England (Scotland in this one? Wales??) then the whole document is pointless.

  5. Old Codger – you have expressed very well a fear which many of us have. We have seen a great deal of action by government which appears at first blush to be beneficial but then we discover that there are nasty stings. Legislation tends to be written in a way which enhances official powers. Trust in politicians is at an all time low as exemplified by the appalling expenses scandal and the callous disregard by some MPs of basic standards of honesty. Expenses Scandal – Independent 4th February and Times 4th February. Just what faith do we have in the politicians of today to bring forward a written constitution which would be beneficial to the ordinary citizen as opposed to one which enhances State/Executive power?

    Ray refers to how some countries came to have written constitutions. People may have thought them necessary after war or revolution and, of course, many written constitutions were necessary for newly created States upon independence. The UK has not endured such seismic changes and our arrangements have been able to develop incrementally. Evolution and not Revolution. Interestingly, even in States which have a written constitution, it does not necessarily follow that all the constitutional arrangements are spelled out in a single document. To understand the situation it is necessary to examine numerous other Acts, judicial decisions and practices. A written constitution, no matter how lengthy, cannot include everything. Choices have to be made.

    Barrister in London gave us a most interesting link to a speech by Professor Goodhart.

    The views of Professor Goodhart deservedly command considerable respect. However, the article was written in 1991 and there has been much water under many bridges since then. A more up to date review would be necessary. We now have the Human Rights Act. We are signed up to the Lisbon Treaty – remember how the promised referendum was refused on the political chicanery that the draft Treaty was a very different document to the proposed European Constitution? We have “devolved administrations” in Scotland, Wales and Northern Ireland. We now have a Supreme Court (maybe introduced out of an over zealous approach to the separation of powers) and there is a new Judicial Appointments Commission with new (but possibly problematic) processes for appointing judges. The historic judicial/executive and legislative role of the Lord Chancellor has gone though the title survives. The Attorney-General’s role has survived despite severe criticism

    All those changes have been possible without a written constitution. It is possible to find problems with all of those changes but some of those changes were inevitable and there are beneficial aspects to most of them. Might a written constitution have made it more difficult to bring about change?

    Rex points to unforeseen and unintended consequences. I think that is a risk when you do anything in this life but, in constitutional arrangements, it is a very good reason for retaining flexibility and for having a careful evolutionary approach.

    Any written constitution has to be interpreted by someone. This usually falls to some form of Constitutional Court. Opponents of written constitutions claim that this would give the judiciary too much power.

    I continue to be undecided about the need for a written document. If there is no real need then why have one? Nevertheless, I shall do more research and see where it leads. As the lawyers say: curia advisari vult.

  6. I find it interesting that you would even debate this. A constitution will give you the people to rule over your government, not the government over you.

    It will lay out the duties of each branch of government from the local level to the federal level. It will give you to levels of government (state and federal laws).

    I think it is a necessary to protect the people from tyranny.

  7. We debate it because our Prime Minister has raised the idea though others have also done so. Personally, I lean against the idea because it inhibits flexibility to adapt to changing situations.

    Whether it protects the people against tyranny is debatable. Many nations with written constitutions have some very tyrannical things going on.

    Nevertheless, there is force in the argument that the British people do not have any inherent rights. They are "subjects of the Crown" and not citizens with inalienable rights. Even the European Convention on Human Rights is something which the government has entered into but is legally free to extricate itself from though it could only do so at considerable political cost.

    The British people also have a distinctly jaundiced view of politicians who try to drive constitutional change. The immediate question is "what is in it for the politicians"?

    A further issue is that written consitutions tend to increase the power of the judiciary. The British are quite happy with the judges being in their present box and do not seem to have any enthusiasm for releasing a judicial genie.

    I submit that we are right to be very wary of moving to a written constitution which might have serious hidden problems.