‘Why we need to stop talking about a written constitution’ – my November 2020 column for Prospect magazine

15th November 2020

My column this month for Prospect magazine is on something I have wanted to write about for some time.

It is about the issue which both dominates and ruins constitutional discussion in the United Kingdom: the topic of a ‘written constitution’.

Whenever there is some constitutional calamity, the instant – knee-jerk – response of many liberals and progressives is to demand a ‘written constitution’.

And that is where their response also then ends; it is the entirety of their reaction.

As such it is not so much a way of thinking about constitutional issues in the United Kingdom, but an excuse for not thinking about them.

In my Prospect column I set out various reasons why this preoccupation with demanding a written (more correctly, codified) constitution is misguided: 

– written constitutions are not inherently liberal and progressive, and even those which purport to be so may not guarantee rights and freedoms in practice;

– there is no plausible path for the United Kingdom to get to an entrenched constitution, absent a war, invasion or similar – and even if there was, the process would still be hijacked by an executive eager to strengthen its powers and privileges;

– the subject is a distraction from putting in place actual reforms to the constitutional arrangements of the United Kingdom.

For many this may seem like a heresy or a blasphemy, so wedded are they to all constitutional conversations having to be about their hobby-horse.

Others will say that somehow we can spend our finite time for discussing constitutional issues on both particular reforms and idealistic projections.

But as we get drawn again and again into this A-level essay topic of an issue, real constitutional changes are not taking place that could and should be taking place.

And so, although I realise the Prospect column is provocatively titled:  I aver that it is time for us to stop talking about a written constitution.


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35 thoughts on “‘Why we need to stop talking about a written constitution’ – my November 2020 column for Prospect magazine”

  1. You may be right to say that we should not concentrate on appealing for a written constitution, but we should have a serious discussion about Britain’s constitutional and parliamentary arrangements. Andrew Blick and Peter Hennessy set out reasons in their report for The Constitution Society ( http://www.consoc.org.uk ) “Good Chaps No More? Safeguarding the Constitution in Stressful Times”, 2019.
    The Conservative Party promised to set up a Constitution, Democracy and Rights Commission in 2020. That is not going to happen but, in due course, government should initiate a process in which all parties can work together to consider Britain’s constitutional arrangements.
    That consideration might lead to a written constitution or to codifying some constitutional conventions. The nature of the result doesn’t matter as long as improvements to the current unsatisfactory arrangements are found and agreed by all political parties and the country as a whole.

    1. I am not saying that we should not have ‘have a serious discussion about Britain’s constitutional and parliamentary arrangements’ so the ‘but’ in your first sentence is redundant

      On the contrary, the preoccupation with a written constitution inhibits if not prevents that very discussion

  2. I’ve found myself a little irritated trying to read DAG’s single sentence paragraphs (shallow, I know, but true). This article (despite sentences etc) is essential reading, whatever its structure. Don’t forget though, there is another route to a written constitution. That is revolution or (in most cases) civil war. Things must go very far to result in revolution; but it was revolution which created to the best known written constitutions (ie US and France). (And all in one para….)

    1. If you don’t like my style of writing on my own blog, other blogs are available – if I did not blog like this, I would not blog independently at all

      I write in paragraphs at Prospect and FT

    2. David

      The problems with revolutions are, they’re relatively easy to start, horrendously difficult to control, and just about impossible to predict whether the final destination will any improvement on the starting point?

      And of course, being the “best known written constitutions”, is not necessarily an indication they are also the best written or most effective.


      1. I entirely agree. I only proferred ‘revolution’ that as a fourth means (after DAG’s three) occasionally employed to change a constitution; and generally very messily. The ‘Glorious Revolution’ of 1689 was surprisingly bloodless; though it was preceded by – perhaps was the real culmination of – the Puritan Revolution of c 1642-1660.

        If asked I would say electoral reform was essential; and stick with what we have. It gives flexibility (and avoids the dangers which the US Supreme Court may soon face with its Republican ‘majority’). To override what we have, would require a minor – even major – revolution. At present our Parliaments cannot bind a later Parliament.

        1. The ‘Glorious Revolution’ of 1689 was, self-evidently, a long time ago and pre-union so we need to take that into account when considering the context of revolution in this country today. It was also far from bloodless outside of England, and has lead to a legacy of religious bigotry that persists in my part of the world and in Ireland to this day. Also one of the problems we have in Britain is that many of our politicians are too inward looking and self-satisfied about our constitutional arrangements try reading Hansard on this, it is cringe-worthy. There is a much wider constitutional experience beyond these islands which often seems to be disparaged, while our “constitution” is given sacred status. This is one of the issues which has led us to the xenophobic heights of the hubris that is bexit.

          1. Considering all this talk of revolution, I would like to ask what people think is the role of the monarchy in a revolution.
            That would obviously depend upon whether the revolution is against Her Majesty herself, or only against her government.
            I suggest that the latter is the only sensible course because that logically puts Her Majesty in the role of referee, and she can deploy her forces to ensure fair play.
            In a revolution against her, the army and police could be used to simply quash it.

            I’ll expound upon my logic there, but it is quite simple: the crown is constitutionally prevented from getting involved in politics, and war has been reasonably described as a continuation of politics by other means.
            If that is true of war, then it is doubly true of civil war, and to be blunt, if the Crown does not serve this purpose, then what is the actual point to it?

          2. Unless (1) you have a political party which is dedicated to securing a written constitution, and (2) which gets a majority in the Hse of Commons and Lords; (3) which can somehow – a massive somehow – persuade a majority in both houses to back the idea; and (4) do away with parliament and a good deal more then, as I see it, without a revolution it cannot happen. A revolution can mean a lot of things; but it must fundamentally mean profound – even violent – change. Since 1795-1815 France have had five more changes to their constitution, all much less bloody than the first; but each time there was acceptance of the concept of a written constitution.

            I’ve had three goes: should I shut up now?

  3. Thanks for this well-reasoned, thoughtful consideration.

    Two things that written constitutions tend to attempt to provide are primacy (the idea that they’re fundamental, and can be used to invalidate other laws which may violate them), and long-term consistency (they can’t just be amended by having a majority, they have higher thresholds for amendment or repeal). Do you envision ways to get these effects for the specific reforms you suggest?

    As a specific example, say public procurement were made more scrutable, what’s to stop a government with a loyal parliamentary majority of 80 from saying “except company X”? Would this simply be a PR/politics issue? Or could it be prevented by law?

  4. David

    I totally concur.

    This has been the my argument for sometime.

    Where we need to start, is with electoral reform. Any system which allows a minority government to be transformed into a government with an 80 seat majority, with an increase of just 1.2 % in vote share (270,000 additional votes) is clearly not fit for purpose.

    It allows this government to project itself as having the overwhelming support of the electorate, which is, at best disingenuous.


    1. Electoral reform and history are two answers. Prominent is that so long as parliament is supreme – the one constant in UK constitution then anything one parliament does can be changed by another. In our constitution a written constitution – right or wrong – is impossible. Surely though a helpful definition – prepared by the like of DAG and 11 others (academics and bright lawyers etc), and revised every year could be published. It would not bind anyone; but it would help enormously to inform the averagely intelligent layperson.

      1. I have serious misgivings about any written Constitution because protecting it from compromise and opportunism in an environment dominated by entrenched partisan politics would be nigh on impossible.

        But we also need to remember exactly why this is an issue at this particular moment.

        The evolved ‘constitution’ such that we have is entirely dependent on a reasonable parity between the three pillars that defend it, the Executive, Legislature and Judiciary.

        This in turn relies on the Executive in particular, to abide by the constitutional conventions which enable the separation of powers to remain balanced. And that’s where the system is under severe stress.

        This Government and the one before it, has knowingly dispensed or attempted to dispense with those conventions to achieve its agenda

        Where it was prevented from doing so by Parliament it sought to bypass it & effectively transfer greater power to the centre or pit ‘the people’ against it.

        Where it was prevented from doing so by the Supreme Court, it now seeks to “review” its role.

        Where it felt frustrated implementing it by the Civil Service, it now seeks to to reform it.

        All of these actions potentially undermine the checks & balances needed to make the constitution work and each involves an avoidance of scrutiny.

        So, on one hand, these are people we can least trust to formulate or supervise any kind of transition to a codified Constitution, on the other, doing nothing carries potential and actual threats to our democracy.

        Not to forget either we are experiencing a real time reduction in our rights as citizens, through the action (or inaction) of the same Executive.

        I don’t have the answers. They require more expert minds than I possess. The questions scare me enough already, But for sure, doing nothing likely takes us on one trajectory inconceivable for most of us just 5 years ago, or so.

  5. Anyone who thinks that a written constitution would be a panacea for our ills would do well to consider the example of the US, where there are persistent arguments both about the general principles governing the interpretation of that document – “originalism”, “textualism” and so on – and about how it mandates on particular contentious matters such as abortion and the right to bear arms. Indeed the US constitution probably obfuscates, distracting, as DAG suggests constitutions tend to, from serious consideration of the issues.

  6. Personally, I don’t see how it is practicable to have a ‘serious’ discussion about constitutional reform without considering the pros and cons of a written constitution. Having said that , I share your misgivings about the utility of written constitution’s generally. We have seen for ourselves over the last four years the inability of the much vaunted US Constitution to rein in the wider excesses of an undemocratic oligarchy. But it is painfully obvious even to a dimwit like me that Brexit and COVID-19 has tested our constitutional protections to destruction. We have a Government that abjures the rule of law, parliamentary sovereignty and worse. Speaking for myself, I don’t think that ‘knee-jerk ‘ calls for a written constitution should or actually do stifle informed debate about constitutional reform. They have, for example, emboldened you to write an excellent piece in Prospect magazine giving three reasoned arguments why written constitutions do not always work.

  7. It is interesting to note that that when GB divested itself of its colonies, one of the first thing it insisted on were written constitutions. There is an aura of “We know what’s good for you, but we’re different – we don’t need a written constitution – it’s beneath us”. I’m also minded of the political reflex Westminster Ministers always display when defending a rotten political system – “if you think it’s bad here, what about Italy” (for example)? Basically, defend the mediocre by pointing out what seems to them to be worse.

    Sarcasm aside, there is a serious debate to be had, and DAG raises very good points – as always. But at the outset, perhaps we should agree that the US is not so much currently “struggling” because of its written constitution, as its inability (or unwillingness) to adapt it to modern needs (something the Irish Republic is able to do because it is enshrined?). In that sense, the UK and the US, the former without a written constitution and the latter with one, are not much different.

    I have always favoured a written constitution, but I am prepared to go along with DAG’s suggestions – but if a written constitution “would not by itself lead to more liberal government”, how do we know that an unwritten constitution would?

    Space does not permit me to expand on all the points I would like to make by way of contributions, but what I need to know is who (which British political party etc. etc.) is going to deliver the changes (including electoral reforms) we all seem to be wanting? Let us assume that, with good inning, I have 15 or 20 years left on this earth, can I rest assured that the British political establishment is to seek to favour “certainty” (to the extent possible) over “flexibility” (which permits rampant abuses)? GB, for example, is one of the few countries to have no “rule” about the legal status of referendums. No doubt laws could be devised – but then, as we have seen, the UK Parliament has the ability to undo them all. Not to put too fine a point on it, Parliamentary sovereignty is what needs to be addressed (what the UK Parliament gives it can take back; it cannot bind future Parliaments; although unconventional, it can legislate retrospectively; and it can pass inhumane or immoral laws (through Parliamentary majorities – Lord Lord Hailsham’s ‘majoritarian autocracy’)). Do we seriously believe that an unwritten constitution will address these profound historical anomalies and aberrations?

  8. I think that you have argued before that the UK does have a (written) consitution, but it is not put down in any single tome. Perhaps, the issue at hand is not in amending our constitution, but rather ensuring that its various strands can be colated together such that the people, rather than constitutional afficinodos such as yourself, can identify and understand the patchwork of laws that do underpin the constitutional functioning of our state. Not so much a written constitution then, de novo, but an Executive Summary of what we have always had.

    And I wholeheartedly endorse calls for economic reform, particularly where fully proportional representation can be hybridised onto the model we have of constituencies having an identifiable responsible (ho, ho) local MP – this being about the only advantage of the current indefensible sytem.

  9. I am against a written constitution for the simple reason of the number of times that the Lords have been accused of acting unconstitutionally as they haul our arses out of the fire.

    While I might agree that there is no plausible path to a new constitution save war or invasion, I would only agree that literally because there is a constitutional path to as much change as we need, and if we walk that path, then we can leave it open for next time that such change is needed.

    Let us look to history and see where there has been constitutional changes before: the most significant one lately appears to have been around the English Civil War.
    Why does that not set the precedent for constitutional change?
    The obvious answer to that is because it was a war, but it is often the case that the obvious answer is not the right one, and that is true here: the war is a distraction, it is not in itself relevant.
    If we look past the war to see what happened constitutionally, and we disregard the mistakes that they later overturned, we are left with a straightforward change of regime, brought about by advancing the Royal Succession under the auspice of a parliament which represented the people.
    The only reason that they fought a war was because the regime they faced was a tyranny that did not allow its authority to be questioned.
    If we put aside the war, we have a clear constitutional precedent for regime change and we can start with as blank a sheet as we deem appropriate.

    All we need to do is to convene a parlyament, that has a better democratic authority than the incumbent one, then challenge their authority and push forward the progression.

    1. A lot of constitutional matters are delivered by act of parliament, and over time it adds up to a lot. The Parliament Act 1911 was a pretty big change, limiting the power of the House of Lords. Changes in the franchise, devolution, the supreme court, equalities and human rights legislation, all these things can be seen as incremental peace-time constitutional changes. Though it is a matter of taste what you consider constitutional.

      I disagree that the English Civil war resulted in a large and perment step change in our constitution. With the restoration of Charles II, the formality of rule was not much different from under Charles I.

      The big step change in our constitutional affairs came with the Glorious Revolution, as the winners of that war rebranded it. To obtain the throne without resistance, William came to an accommodation with parliament to allow him quiet enjoyment of his new realm. That made Britain, ironically, a “constitutional monarchy.”

      1. You are right of course. My memory is not so good and the 17th century is all a bit of blur to me now.
        However, I think the principle remains that a new monarch can herald a new regime, provided that the regime governs according to a properly convened parliament.

  10. Your key argument seems to me, that there is no plausible path leading to an entrenched constitution. Maybe but we need urgently to devise one, because the lack of entrenchment is an important factor driving the demand for independence in Scotland, there being nothing to stop a parliament dominated by the government of the day sweeping away devolved powers, and local authority rights on a whim. Your proposed amendments may be significant, but relatively, with respect, minor

  11. While I would agree with the difficulties of the United Kingdom attaining a written constitution, and I am very aware of their limits, as a citizen of a country which has a written Constitution (Èire) and as one who looks forward to being a citizen of a country which will have a written constitution (Scotland), I would suggest that the problem with the UK constitution is that it depended upon all parties acting with the `utmost good faith. When power was exercised by a fairly homogenous group, as happened from the early 18th Century and that group evolved that was fine for them, and the effect on the rest of society was minimal.
    Once the “Big State” happened with society playing its part in so many more parts of the life of the community than it did historically, and when that power was subsequently privatised, the assumption of good faith no longer obtains, and the setting of the Constitution by the Supreme court is not the best way of doing it.
    The suggestion is that there cannot be a written constitution without a revolution. I would suggest that without a written constitution there will be some king of revelation, especially when Scotland leaves the Union.

  12. I do not believe that there will be meaningful constitutional reform in the foreseeable future, only unambitious tinkering at best. The major British political parties do not wish to dilute the control they can exert when they gain a majority, usually on the basis of 40% or less of the popular vote due to our unrepresentative voting system. As a Scot I look forward to the blank slate I hope we will be afforded by independence, which will allow us to create a constitution based on modern pluralistic democratic principles. The “UK”, (a contradiction in terms as it is far from united – and do we really think kingdoms are the stuff of the 21st century ?) governed by a clunky archaic pseudo constitution, will lumber on like a sick elephant until it inevitably collapses under the weight of its own absurdity.

  13. While there may be no path for the UK to attain a written constitution, you noted on twitter that an Independent Scotland will certainly have one. In the event of an independent Scotland and a united Ireland I think there would be a necessity for what remains to codify its constitution.
    I don’t think a simple reversion to a Kingdom of England under the current arrangements would be sustainable.
    “United Kingdom of England and Wales” – I don’t think so.
    Maybe the solution would be a new Kingdom of Britain – with its own written constitution.

    1. It seems to me that the more straightforward answer is for England to leave the UK, which would leave the UK free to remain in the EU.

  14. Unfortunately the headline itself is a distraction from the root & branch reforms needed in the UK’s political system. Every tone a crisis like that in the US currently, those invested in the UK status quo loudly proclaim their faith in the monarchy & the inherent benefits of a “flexible” constitution. Politicians in all parties have a vested interest in reform (or none) which is why they must be removed from any reform process. A “people’s assembly” in Ireland managed to overcome vested interests, especially those of hard line church leaders, in reform of abortion laws. Despite the fact the process wasn’t invented here, it could still work.

    1. I am endlessly puzzled by the calls for a “People’s” or “Citizen’s assemblies” because such calls are usually made by movements with enough members that they could simply call them.
      The Local Government Act 1972 allows ordinary people to call a formal meeting of their local area which has the power to call a local referendum over that area if they deem it appropriate.
      A large movement such as eXtinction Rebellion could easily call a series of these meetings and with their reach could probably cover most of the country.

      1. I think you made the point yourself above; a parliament elected with sufficient clout to engage and introduce change. Grand, except the process still involves the vested interests of politicians; turkeys voting for Xmas.
        Leaving the possibility of Scottish independence to one side, the first step will be a parliament that introduces genuine PR which, after the following election could begin a process of reform; unlikely in my lifetime but delighted to be disabused.

        1. I can only assume that you meant that reply in response to some other comment to the one you have posted it under.
          I have offered a clear mechanism for proper democratic engagement that bypasses parliament altogether.
          Parliament is of course sovereign and they may choose to ignore the will of the people, no matter how clearly it is expressed, but they could not reasonably still claim to be a democracy.

  15. I agree that a written constitution can never be a panacea, although I am sure that we could identify some other countries that we would regard as successful examples. But it’s also hard to see why an unwritten constitution is intrinsically a better idea, unless its semi-mystical obscurity makes it less of a temptation for politicians to tamper with it. More broadly though, I think there are separate aspects of this discussion here that might usefully be disentangled.
    I agree that seeking a written constitution at the present time would not be wise, not least because we couldn’t trust the present government to do it. On present form they would (a) make an incompetent mess of it, and (b) seek to seize further powers for themselves and also to limit the ability of others to challenge them.
    But we should also admit that the present rag-bag of historical stuff that comprises our constitution is far from satisfactory, and would benefit from being codified into a more understandable form – whether that is regarded as a written constitution (i.e. becoming the law and replacing its sources) or just a guide to what all these sources are without actually replacing them.
    The next issue is that such a process of codification would also make the defects of our constitution seem more evident. For example, some of it looks very archaic in a 21st century parliamentary democracy – do we really want to maintain the fiction of the royal prerogative as the justification for certain Executive powers, for instance? It would also highlight the many inconsistencies that presently exist – think of the mess that has resulted from several different versions of devolution that have been introduced at various times. A codification exercise is likely to lead to a desire to resolve some of these issues, but whether you think that is a good thing or not depends on your point of view; is it safer to leave the present ramshackle edifice as it is and leave it to the courts to probe its darker recesses if required, or risk inviting politicians to get involved in changing it?
    As some others have commented, however, the real priority should be electoral reform. We should not be proud of the fact that the only other European country that clings to a First Past The Post electoral system is Belarus. Again, though, it seems unlikely that the present government would give up a system that serves to facilitate their own minority rule.

  16. In your Prospect article, you allude to an other problem. The UK Constitution isn’t codified, something that many seek; but it also seems to an outsider to be incomplete. If this is correct, what remedies are there?

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