Monday, 19 April 2010

Should we have a written constitution? Number 2.

On 3rd February, Law and Lawyers asked whether it was desirable to have a written constitution - (view earlier post).  It is worth revisiting that question given that the General Election campaign is now in full swing.  This is a campaign which seems to be concentrating far too much on the personalities of the main party leaders and how they came across in the recent heavily stage-managed television debate.  Important issues seem to be ignored in this personality contest which one writer has referred to as "Britain's Got Politics".

Whilst not entirely in the forefront of people's minds, various ideas of constitutional reform are hidden away in the party manifestos.  The Labour Party refers to changing how the House of Commons is elected.  They offer an "Alternative Vote" (AV) system which would have to be agreed by the people at a referendum.  They also favour further reform of the House of Lords which would, after a considerable period, become wholly elected.  Further, they state that they will have an all party commission to chart the way to a written constitution though their manifesto appears to fall short of a definite commitment to such a constitution.  The Liberal Democrats state that they would - "Introduce a written constitution. We would give people the power to determine this constitution in a citizens’ convention, subject to final approval in a referendum".  The Liberals also favour a fully elected House of Lords.  The Conservative Party does not promise a written constitution but does promise a "Sovereignty Bill" and replacement of the Human Rights Act 1998 with a U.K. Bill of Rights.  They favour a mainly elected second chamber to replace the current House of Lords.

It therefore seems that, however the next government is formed, "the constitution" will be on the agenda.

Preparing a written constitution for the U.K. will not be an easy task and, if the task is to be undertaken at all, then somehow its preparation must involve the people and, I would add, particularly young people.  The fundamental purpose of a written constitution is that the constitution becomes the fundamental law of the nation.  Very important issues must therefore be addressed such as "where does sovereignty lie".

At present, British sovereignty rests with Parliament which, so it is claimed, is "supreme" in that it may make (or unmake) any law whatsoever.  Such a position is the very opposite of what a written constitution would really require since a written constitution would need to make Parliament itself subject to the ground-rules of the constitution itself.  Without such a basic shift of power, any written constitution would be of very limited value and some might argue pointless.

For a recent and well-argued case for a written constitution I would recommend a reading of "Repairing British Politics: A Blueprint for Constitutional Change" - Richard Gordon QC - Hart Publishing, 2010.

Some will argue that the very doctrine of the Supremacy of Parliament prevents the creation of a constitution in which Parliament ceases to be supreme since whatever constitution is enacted can be unenacted by a later Parliament.  This view is a counsel of despair.  The Supremacy of Parliament is a power-sustaining device which, as Richard Gordon puts it, "... has never received popular endorsement."  It has never been voted for.  If a written constitution were to be adopted by popular referendum, the Supremacy of Parliament could be abandoned in favour of a constitution which also bound parliament.  The Supremacy of Parliament is also seen by many as actually amounting to a "supremacy of the executive" given that the executive controls much of parliament's business - in effect, the "elective dictatorship" which the late Lord Hailsham warned about.

Of course, any written constitution requires interpretation and this is why written constitutions tend to increase the role (some would argue "power") of the senior judiciary.  In the United States there are serious debates about the role of the Supreme Court Justices in interpreting their constitution.  Does the constitution permit an "activist" approach or only an "originalist" approach.  The advocates of these approaches are Justices Stephen Breyer and Antonin Scalia.  A flavour of their debate may be seen at ACS Law.  In essence, the activist would seek to apply the words of a constitution to new situations as they arise whereas the originalist would argue that the constitution says nothing about the new situation and it was therefore a matter for the legislature and not the judges.

Are we really willing to give up the idea of parliamentary sovereignty in favour of a written constitution which limits the power of parliament and the executive and which probably increases the role of the judges as interpreters of the constitution?

Addendum: 20th April: Plans to reform House of Lords leaked - see Current Awareness.

Addendum: 21st April: Is first-past-the-post on its last legs - Telegraph 21st April - Vernon Bogdanor


  1. As you hinted in the earlier post, the value of a written constitution entirely depends on what it says.

    However: That it would limit the power of the legislature and executive is not a disadvantage, it is precisely the attraction of a written constitution.

  2. Personally, I am with the camp that the passing of a lawful consitution to bind future Parliaments would be difficult given the current consitution; however, I conceed that there is almost certainly a way that this can be overcome... most likely by ignoring the problems (or maybe re-convening the old English and Scottish Parliaments from whom the Westminster Parliament derives it's power).

    More importantly, are the questions of whether we want or need a written consitutions. First, the question of want is easy to answer... we'll have a referendum in which people who don't really understand the issues can decide whether they thing we need to do something.

    The question of whether we need a written consitution is more difficult. I have yet to hear an argument that conviences me that we need to change. Things seem to bumble along perfectly well as they are; the saying "if it aint broke don't fix it" springs to mind.

    What would a written consitution actually acheive? Would the people who don't understand current legislation read and understand a written constitution? Would the constitution be so well written that its meaning would be immediately obvious or would it be fought over for year through the courts. Don't forget that the US constitution is more than 220-years-old and its meaning is constantly being fought over in the US courts.

    As with the Human Rights Act, I would expect to see more and more spurious claims being founded on people constitutional "rights" giving us an unending stream of boring and inaccurate press reports and leading to constant amending of the constituion - I think the US consitution has been amended 27 times so far.

    I don't see a need for a written consitution, but I'd be interested to hear other points of view.

  3. "Personally, I am with the camp that the passing of a lawful consitution to bind future Parliaments would be difficult given the current consitution"

    Really? Crown assent is given in Letters Patent on the advice of the Prime Minister - and he may quite lawfully advise the Crown to withold assent. The change would simply bind the PM and Crown so as not to be able to lawfully assent to unconstitutional legislation, and to allow such consent to be invalidated by the Supreme Court.

    Then Parliament can pass whatever legislation it likes, it just won't get Royal Assent.

    The idea that Parliament cannot bind itself is based on a sort of conservation law - the power to change the constitution must go somewhere, and since there is nowhere for it to go, it stays with Parliament. It is no big deal to say that the Crown may not assent to any change in the Bill of Rights unless petitioned to do so by the people, in the form of a 60% majority in a referendum.

    I also am a big fan of "if it ain't broke, don't fix it", but the encroachments on our basic freedoms practiced over the past few governments have convinced me that it is broken.

    The difficulty is finding someone to fix it.

    Discussion turns naturally to the US Federal constitution, since it is prominent, and, as an English speaking country, their debates are most accessible to us.

    But that is far from being the only possible model. There's all the US state consitutions from Carolina to California, Montana to Massachussets, there is France, Switzerland and so on.

    It is interesting that you make the opposite point to ObiterJ, but also as a disadvantage! He bemoaned the fact that the constitution is too difficult to change, you are bemoaning that it changes too often.

    The point about the constitution is not that change should never be made, but that big changes should be made slowly and with great care. 27 times in a couple of centuries is not a lot.

  4. Thanks for the interesting comments,

    Ben, I am not saying that the constitution is "too difficult" to change though preparing a written constitution will not be easy. Let's not worry about "Crown assent" since the idea put forward, notably by Richard Gordon QC, is that a constitution is approved by referendum. This alters the ground rules since the people have taken charge and, provided the written constitution says so, parliament is no longer supreme but is subject to the constitution itself.

    I think the UK has moved much more to a federation in the last 13 years due to "devolved powers" to Scotland, Wales and, more recently, Northern Ireland. The constitution would, I think, have to deal with this.

    A written consitution is attractive precisely because it limits executive power and many see that as being abused massively in recent years.

    Phatboy talks of people not understanding. Of course, not everyone will understand but there needs to be a full debate on this matter otherwise you end up with a written constitution prepared by a cosy team of the "great and the good" which might actually not achieve the fundamental changes needed. There is not point to a written constitution unless it makes fundamental changes. To merely write a description of the present system of governance and call it "The Constitution" would be nonsensical.

    Change will be needed however carefully the constitution is written. Nevertheless, the constitution itself would provide for a method of change which had to be followed. I agree that the USA has not done too badly in 200 years with adapting their constitution to changing times.

  5. The question of devolution was mentioned above. The financial arrangements between Westminster and the devolved administrations are coming under strain - see The Independent 22nd April.