2nd February 2022
Every time there is some political drama there will be those who will make a critical comment and then add “and that is why we need a written constitution”.
They will. no doubt, nod as they type this, and many will also nod as they read it.
There is no political problem imaginable to which somebody will not say “and that is why we need a written constitution’.
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In my commentary I have been sceptical of this stock response.
So critical that some companion commentator will make the accusation that I am against “written” – that is codified – constitutions.
“Look at all this,” they will say as they survey that day’s political devastation, “look at all this, how can you be against a written constitution?”
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As we look down together at the smoking ruins left by that day’s political events, I wonder if they have a point.
But this is what I would mutter in response :-
“I am not – actually – against a codified constitution for the United Kingdom.
“Not in principle.
“My two primary reservations are that, first, there is no mechanism – given the doctrine of parliamentary supremacy – for enacting or entrenching such a constitution.
“It would only be an Act of Parliament away from repeal or wrecking amendment.
“There is therefore no point in such make-believe.
“And second, a codified constitution can entrench executive power and make it more difficult to check and balance that power.
“A written constitution in our current post-Brexit hyper-partisan politics would simply be gamed by the authoritarians.
“Codified constitutions are not necessarily liberal and progressive devices.
“A codified constitution is not a panacea.”
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My companion would shake – not nod – their head and say :-
“Fine – you say you are not against codified constitutions in principle.
“But.
“Just look at all this – the collapsed institutions and smouldering conventions.
“The disregarded checks and toppled balances.
“This is the direct consequences of there not being any codification.
“The knaves can do as they wish, and the fools cannot stop them.
“What you get wrong is that you miss that un-codified constitutional arrangements can also be good and bad.
“And what we have here is, in practice, bad constitutional arrangements.
“Un-codified constitutions are also not necessarily liberal and progressive devices.
“An un-codified constitution is also not a panacea.”
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My wise companion may have a point – and their views are unsettling, even disconcerting.
The problem of enactment and entrenchment would remain – well, as long as our national constitutional faith is in the doctrine of parliamentary supremacy.
But an un-codified constitution requires – instead of some portable document – a general sense of constitutionalism.
By which I mean: a sense that there are political rules which are more important than party advantage and personal advancement.
And if constitutionalism no longer has any purchase, then I have to concede an un-codified constitution can be just as illiberal and reactionary as any executive-biased codified constitution.
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“Hmmm,” I say to my wise companion, “you may have a point.”
We then watch as the surviving political debris all crashes to the ground.
“Brace brace,” they say.
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I’m not sure if this is a fair observation to make (like that has ever stopped me before…) but I suspect (without a shred of proof, mind) that there is a vast difference between setting out to establish a constitution at the moment in time when a nation is founded – of course here my example is the United States… when compared with the potential challenges of trying to introduce a constitution to a well-established nation that already possesses an established structure of governance.
In my childish simplicity, I look at those options and think that of course the enactment of a constitution in an established nation will necessarily require those well-entrenched in power and quite happy about it, thank you very much, to relinquish some of that control. It is my experience that once a government has taken a power for its personal use, it is – a bit like taxes – virtually impossible to get it to release that control.
And there’s a problem with the model that the UK now holds. Despite ostensibly laying claim to hosting the “Mother of all Parliaments” and with it the introduction of parliamentary democracy to the world… what we actually have is not entirely dissimilar to an “elective dictatorship”. Every 4 years or so, we get to elect our next dictator; once the vote is made, true power is wielded by a relatively tiny cabal of typically very isolated individuals.
As an alternative strategy to the “big bang” approach of conversion from whatever-we-have-now to a “constitutionalised democracy”, would you be willing to consider an incremental approach: devolve more power to county councils; adjust legislation and the central oversight of government to matters of national import; impartially divide funds around the nation based on population count – with a discretionary balance held by ministries for the strict purpose of correcting numeric iniquities; and push for the widespread adoption of modern technology to put more decisions in the hands of those directly impact – the voters.
In other words, do an end-run around the thorny question of introduction of a constitution and just put more power back in the hands of citizens. We’ll make mistakes, sure. It will take time, of course. But emotionally/subjectively, it feels as though what we need is not simply a “constitution”, but an entire rethink of both the relationship and the balance of power that exists between citizen and state. As of today, that pendulum has swung far too far in favour of the state… Maybe if we could nudge it back the other way a bit, we’d acquire the freedom/flexiblity/authority to fix some of the other issues to which a constitution is sometimes proffered as a solution?
Sproggit you write “Maybe if we could nudge it back”. The only problem is you are asking “if” to do some very heavy lifting. I think David is right, if I’m reading him correctly. Ultimately we cannot expect either a written or unwritten constitution to come to the rescue. The future will be determined by politics and not law. Brace, brace indeed.
Like other respondents you begin with apparent acceptance of our inherently corrupt electoral system which relies on its skewed majority algorythm. Ie The cadidate obtaining 1 or more votes is often declared by the political establishment to have gained “a majority”. They are extremely careful not to use the phrase “a numerical majority”. This process can and does produce dictatorships but because of this corrupt “counting of votes” the resulting dictatorship can be and often is more abysmally incompetant than if an honest electoral system were used.
Any proposed constitution would be doomed if The People used this system when asked to install said constitution.
Hello.
You say “It would only be an Act of Parliament away from repeal or wrecking amendment.”
Is it possible to pass an Act of Parliament that requires a supermajority (or something like that) to repeal or amend it?
If so, that might be a way of addressing that concern.
That point got me wondering about other countries approach to this.
The fact that there are amendment in the US constitution shows that it can evolve – but slowly with check and, one would assume, the need for cross partisan support.
In France even if half the politicians want to “amend the constitution” to “enshrine something in law” there is very little chance of this happening. I believe the only way to change the constitution would be if two third of the “Congrès” , i.e the “Assemblée Nationale” + ” Sénat” ( would be a parallel to the Commons and the Lords) vote for it – the other way is a 50% +1 vote referendum ( and we all know anything is possible there)
I think you are entirely right to draw attention to amendments to the US constitution, although perhaps not for the reason you might expect.
The most recent amendment, the 27th, delays laws affecting Congressional salary from taking effect until after the next election of representatives. It was first proposed on September 25th, 1789. (And ratified on May 5th, 1992 – 202 years later!).
My point being that I’d caution against any assumption we might make about the ability to make substantive change to a constitution once initially enacted.
I actually see this as detrimental. At the risk of picking a particularly sensitive topic, I note that the opening wording of the 2nd Amendment to the US constitution begins, “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed”… If you think about it, the 2nd Amendment was written before the US had a standing army. It now has probably the most powerful armed forces in the world. So is there still a need for a “well regulated militia”? Probably not. That it remains in the Constitution in original form seems a little odd.
That it seems to be *selectively* quoted (i.e. with emphasis on “the right to keep and bear arms” be cited, but the obligation to serve in a “well regulated militia” being conveniently ignored, might also serve as a helpful hint to guide the design an implementation of a constitution able to side-step these challenges…
And all this before we face up to the consequence of a constitution – like any legal document – being written in a living language, one that changes with time. In the instant of its passing in to law this may seem a triviality, but consider the debates in the US, for example those US Supreme Court Justices who are avowed “textualists” – and those who are not.
This ignorant observer would note that writing law is easy. Writing *good* law is hard…
Their problem is the sacralisation of an 18th century document whose gaps and sheer vagueness would by today’s standards make it a prize exemplar of how not to draft a legal instrument. With the result that ever since it has been made to yield answers to questions that never entered its drafters’ heads.
It’s a basic constitutional principle that parliament can’t pass a law that parliament can’t change, or, as in the case of the Fixed-Term Parliaments Act and the 2019 election, simply bypass with another Act.
A set of metalaws governing the lawfulness of laws, i.e. the core feature of a written constitution, would be liable to the same fate if it was just another Act of Parliament. There’d be nothing to prevent a later Suspension of the Constitution Act. Or an Act that by implication repealed the relevant clause of the would-be constitution.
Bringing in a written constitution would have to be done by ultra-parliamentary means. The Queen dissolves parliament. The Privy Council presents the document for her approval. She then announces it by proclamation. Parliament is reconstituted on the basis that members swear an oath of loyalty to it. Or something like that.
Picture the scene at Buck House.
“La Reine le veu— Hang on! What’s this? ‘Monarchy abolished’??!!
F*^> off, you plebby little s%$”!!! Guards! Seize him!”
Given the current level of concern about checks and balances in the UK, do you think it would be useful for an independent body (a constitutional convention, Royal Commission or similar body) to review UK’s constitutional arrangements with a view to improving them?
Any such commission would either be too important to be left ungamed, or too impotent to do anything.
Is there something like a independent institution in the UK that is not at the same time a Crown Institution. And I am not argueing to end the Monarchy. But i am afraid changes of such magnitude, dont marterialise because they make sense or are rational. I dont wish the UK any harm and there are modern european Monarchiest that are functioning in the 21 century, but i honestly dont see anything in the UK that could change the way it is, other than a terrible catastrophe which would make such change necessary. Well maybe i am to pessimistic and a simple divorce of the 3 Nations would be such a necessity, but what would that mean for the Crown.
“The problem of enactment and entrenchment would remain – well, as long as our national constitutional faith is in the doctrine of parliamentary supremacy.”
To an outsider, faith seems an odd description of an overarching legal principle. Be that as it may, you appear to be suggesting that that faith could change. How could such change come about?
But if you are not suggesting that, are you instead saying, in the manner of another Dave Allen: “I wouldn’t start from here if I were you”.
The trouble with the current constitution is not that it is uncodified, it is the gradual erosion of checks and balances. The last time this happened in what became the United Kingdom was the 1600s, when the monarch exercised almost unchecked power. That lead to some historical nastiness, a few people losing their heads and eventually the Glorious Revolution, where the monarch was kept in check by the Lords and the Commons.
Over the intervening centuries, the power has shifted from the monarch to the Prime Minister, held in check by the House of Commons and the House of Lords. More power has been centralised in the Prime Minister and the party whip system so hated by Dicey has meant the PM controls the Commons. The Parliament Acts have defanged the Lords, and the monarch is a 95 year old widow hardly up to the cut and thrust of modern politics.
The Supreme Court remains the last check and balance against the tyranny of minoritarian PMs who only need scrape a narrow majority of seats in a General Election. Unsurprising perhaps that recent right-wing press headlines have turned their fire on that institution.
Would a codified constitution fix this? The evidence suggests that is not necessarily the case. South Africa had a codified constitution in the 1950s with entrenched provisions preventing the disenfranchisement of voters. Nevertheless, the National Party managed to eventually work around the constitution because there was nothing stopping them from packing the Upper Chamber and being able to win a supermajority to change the constitution, thus removing the intended checks and balances.
The lesson here seems to be that it is not the codification of a constitution that matters for stability, but the robustness of its checks and balances.
I agree with this Zoe
Yes, but who writes these checks and balances? Who enforces them?
Who enforces them is relatively easy to answer, an independent supreme court. I add independent and lower-case supreme court because I am not certain that our current Supreme Court is entirely independent of the executive, and it certainly is not immune from legislative interference.
Who writes can be answered two ways. Who *will* write it depends on which particular potential constitutional crisis leads to a constitution. For example, a renegotiation of the current devolution settlement that was catastrophic and major enough to overturn the doctrine of parliamentary sovereignty would result in a negotiation led by various members of the devolved and central administrations for example. Whereas one caused by King Charles III having to intervene in a dysfunctional parliament following a year of nobody managing to win a vote of confidence as PM would involve a whole different set of people.
Who *should* write it? I think you could get a very good first draft by engaging some of the more politically-aware senior judges and legal academics. But that is probably my pro-lawyer, anti-politician bias showing – despite my being far, far more of the latter than the former.
Thank you Zoe for taking the time to suggest some pointers to my (perhaps naive) questions. My concerns were perhaps best expressed in other comments I made on this topic. To recap, I think we all agree that we need checks and balances etc. I guess a written constitution could address them? More to the point, though, albeit that I am aware that analogies are not ideal analytical tools, I don’t know why but every time I think about the UK’s constitutional ‘arrangements’, I do not refer to history (however useful), but think of Victorian plumbing – lots of unnecessary bits and pieces, unsuited to modern living, and requiring constant ‘tweaking’; made up of added compromises (often forced) that never address the fundamental issue – which is how do you construct a ‘constitution’ accessible to all? I have asked before and I will ask again – which piece of paper can a British citizen wave at the current government for the blatant abuses we witness on a daily basis? I think the MP Caroline Lucas was correct – it is not the case of a rotten apple. It is the case of a rotten tree. Lastly, she also made a valid point way back (as did Churchill – as always!); never underestimate the power of the physical institution itself, which influences behaviour. I think Churchill’s words, paraphrased, we’re that we shape our buildings, but they in turn shape us. There is plenty more I would like to add, but I am conscious that I may appear to go on a bit!!!
Curious to know what Zoe and David think of the German Constitutional Court in Karlsruhe.
I do not follow German politics or have any particular knowledge of their laws, so I cannot express anything resembling an informed opinion on that topic. From what little I know, the system seems to work but I am sure there are examples where it has not.
A ‘Ranking of Countries by Quality of Democracy’ by Universitat Warsburg, ranks Germany 5th. The U.K. is 17th, and the USA 36th. This may not be of much use in the context of the matter under discussion, but it may torpedo the constant refrain that British democracy is the envy of the world – it isn’t; by some margin, and it is getting worse.
Agree with your assessment completely… But on the question of the un-checked power of the monarchy being neutralised in the “Glorious Revolution”… I might have this wrong, but I thought this came about when the King wanted to make war with Spain, but lacked the funds to do so. A negotiation followed in which the primacy of the monarchy was relinquished in return for funds for war. Happy to concede if mis-remembered, it has been a long, long time since I sat in a classroom studying history!
That sounds familiar, but my own history is not good enough to place it! It was not the proximate cause of the Glorious Revolution though, as that was the barons offering William and Mary the crown in exchange for limitations on the power of the monarchy after James II’s departure over religious differences.
In the early 1600s, I wouldn’t say that the monarch exercised almost unchecked power. Rather, some powers lay with the crown and some (especially financial) lay with Parliament. The struggle developed in the liminal zone between those two, partly because the crown regularly attempted to bypass the financial powers of parliament. The pendulum then oscillated wildly up till the flight of James II. After William and Mary, the crown’s powers diminished steadily, and the zone of contention was between Commons, crown, and Lords, with ‘sides’ capable of changing. I do not mean this as mere historical pedantry: one possibility for checking the power of the Commons is a new second chamber, more representative than the present, with review powers rather stronger than at present.
At its simplest, which ‘document’ exactly can a British citizen throw at the current government’s shenanigans? In contrast, the ‘abusers’ resort to prorogation of Parliament, Henry VIII clauses, Erskine May, Edmund Burke (always handy) etc. etc. etc. Also, it took 2 Supreme Court judgements, raised by a private citizen to boot (Gina Miller), to tell the country that it was the Parliament that should serve Article 50, and that the most recent prorogation of Parliament was null and void. Both, or either of which, British people could not utter any view on at all. And neither could the Executive or Parliament – hence g there need for a court to tell them. So much for the British constitution which should serve the ‘people’ and their representatives.
Even the Bill of Rights is only an Act of Parliament, or a wrecking amendment away from repeal, but the fact remains that it has stood for the most part, substantially unamended, since 1689. I share what appears to be your view (at least I think it’s your view) that a good constitution probably has to be a bit messy, and a bit flexible, because it has to embrace an inherent tension that is one of the essential strengths of a good one. Better a slightly leaky valve than one which holds fast until it explodes under the pressure.
While their is no single overarching constitution there are a number of constitutional acts relating to the status of the 4 countries that make up the Union and each country has a unique status with regard to that of the others.
We already have ample evidence this government does not believe laws apply to it and this very evening we have an unfolding constitutional crisis with the unilateral decision of Edwin Poots Minister of Agriculture of NI who is a part of the multiparty NI Executive to order those civil servants under his control to cease all customs checks mandated under the NIP which is a constitutional document and the law of the land.
The Belfast High Court threw out a DUP claim that the NIP was illegal some weeks ago and confirmed it as the law, so Minister Poots is very deliberately setting off a process of nothing less than an attempted constitutional coup. In this the DUP is being aided by the Westminster government with last week FACO Sec Liz Truss saying that if the DUP ministers ordered this then the Westminster gov would not overrule them via the NI SoS even though the NIP is signed and ratified and, as I have laboured a constitutional Act relating to NI and also an international treaty with the EU.
I see a further comment by the FACO spokesperson tonight confirming this position of Truss and even worse saying that it’s the EU’s fault for not giving in and scrapping the NIP.
What we have here is a government gone utterly rogue.
David Henig in his Twitter feed this evening comments that it’s become clear to the EU and the US that the Westminster government is working with the DUP to destroy the NIP.
Certainly the NI SoS and NI MoS are hardline ERG members and British Nationalists and for months they have swept aside the constitutionally mandated neutrality of their office (as per the GFA and Gov of NI Act 1998) and only dealt with the DUP completely ignoring the moderate non-sectarian parties and the SinnFein who hold a supposed coequal role in the NI Executive.
The speculation here in NI is that the head of the NI civil service will refuse what is an unlawful order and that will open a whole new set of issues. I imagine that the three paramilitaries associated with the DUP will be back at menacing workers in NI ports – they had a spell of this some months ago and then were called off.
Thank you. A very good exposition to my mind of the situation in NI. “The Pouca” – an Irish or of Irish extraction lawyer and commenter in the FT, made these points too very cogently. Pooter has been “shopping” for a legal opinion. The DUP are acting with at least the connivance of London – as they did when trying to foment violence a few months ago.
The trashing of the “good fellow” understanding of UK checks and balances will continue as long as this Administration is in power. But UK needs a much more fundamental constitutional revolution than a codified / written constitution: the voting system, the monarchy, the Lords, regional devolution, the tax system, tax havens, police reform etc etc. Perhaps secession by Scotland and a referendum on unification in NI will be the catalyst. It is likely to get a lot worse before it can begin to get better. The English are very slow to rise up – “mustn’t grumble” being the watchword – but rise up eventually they must. The “Glorious Revolution” was essentially a stitch-up by the aristocracy and landed gentry. The Civil War was not – though as in almost all revolutions, one ruling elite was merely replaced by another.
I think that it would be too hard to write down a functioning constitution for the UK. It evolves, sometimes slowly, sometimes quickly. There is too much going on, and it adapts and evolves according both to precedent and to laws generated by parliaments and, crucially, by Judges interpreting the combination of facts and rules in cases put before them. Recently we had a period of change wrought by the aftermath of the 20th century wars and since have had around half a century of evolution largely determined by corporate/owner interests (dressed up in various clothes). The mutations have been incremental, sometimes insufficiently regarded and sometimes do not work. The failure of the move to introduce PR through a referendum is such a case. As a counter-factual, imagine the UK with that reform in place rather than missing and then remember that at least some of the money that got NO on that occasion was the same money that got LEAVE in 2016. These processes were ‘gamed’, surely, but at the time the government concerned thought it had the matter sorted……How are the mighty fallen?. Currently, we are watching, again, the action of the rules governing the leadership of the Tory party, stimulated by the poison of leadership impunity, eroding the power of the PM. How will this turn out? It is indeterminate, but people who want to have influence when the mutation happens need to be standing by with a plan. Merely being braced puts us all the same position of the aeroplane passenger in an emergency – pretty helpless. Even having an opinion and laying out here is better than just watching. (Note that the above is a ramble and needs a re-write…but that is for another day).
Do you think a viable alternative might be to take an incremental approach?
First, without addressing any specifics, lay down a framework that would set out the scope and general topics that such a constitution, when fully-formed, would take.
Then – with public input on prioritisation – address each of the topics in turn. As an element of the new constitution came up for review, any existing legislation could either be replaced, imported, or deprecated as redundant.
In many ways the problem you rightly identify could in fact lead to a (much) *better* end result, because instead of being asked to deliberate on a massive platform, with numerous elements, the nation would have the option to fully consider each constituent part and to determine how they group together to shape the whole.
But we need to remember that a constitution alone will not return “fairness” to government. There are so many injustices that have been enacted on us, it is difficult to know where to start… but I make the observation that just enacting a constitution may not “be enough” – it has to be matched with a determined move towards things like more equitable wealth distribution, the elimination of “postcode lotteries” in any public services; sufficient care to allow basic dignity in later life and so on. We spend so much time being deliberately distracted by white noise from Westminster that there’s never enough time left to establish what sort of society we want to be.
The codifying of your constitution will not provide a magic wand for your problems but it would be a useful tool if you wish to avoid descending into a fully fascist state.
Having attacked your judiciary and police, illegally closed down Parliament (without sanction) and cancelled in full Leveson Two you have in place legislation to firstly limit public protest and secondly in effect condone the drowning of immigrants in the English Channel without enquiring why they are there .
The next stage in the process will be the taking away of all real power from elected MPs; they will perhaps be tolerated but not listened to.
Real power will be limited to the Executive who will decide in private. Large sums of taxpayer money may go missing with no scrutiny whatsoever. You will have Ministers with names like Wilfred Ivanka and Rees Mogg Junior.
Go back in history to 1939. If the Daily Mail had campaigned successfully for Halifax over Churchill you would have sent many thousand more Jews to their deaths.
In the 1930s the written Constitutions of France and Germany failed However post war both constitutions have been developed and improved . Both countries are haunted by history. They do not salivate in it.
Power in parliament should derive “from the people” from a robust and fully functional democracy. A codified constitution would require a supermajority in parliament (based on a 90% turnout and an 80% vote in favour of change by the house) AND a supermajority at a referendum based on an 80% turnout.
The question is if the will is there as it would be turkeys voting for Christmas to enact it.
An unexpected benefit once we start on the process to determine the form of the codified constitution. Westminster will need to concentrate on this on a cross-party basis and the nonsense of “we need a new law for this problem” that is all ready covered by existing law should recede for a term or two.
As I see it, it is not a binary choice between “a written constitution” and “an unwritten constitution”, but rather where a country wants to sit along the continuum of “nothing written down” and “everything written down”. I don’t believe the UK is at the “nothing” end of that spectrum, and I don’t believe other countries are at the “everything” end either. There is always oil between the gears. And occasionally sand.
We have some documents with constitutional status, but plenty that is not formally written down a way that could be pointed to and enforced, even when there is the will to enforce it.
And countries with “a written constitution” have elements that (at least arguably) are not written down in a constitutional document. For example, the US Supreme Court created its power of judicial review. Where is that written down in the US Constitution?
Rather, for me, it is a question of whether it would be helpful for the people of the UK to have more of our constitution written down in a way that is clear, accessible and intelligible, so it can be relied upon and enforced, and there would be a political and legal cost to ignoring it or changing it.
We’ve tended to do this sort of reform on a piecemeal basis as the need arises – a charter here, a treaty there, peppered with legislative acts of one sort or another. Short of a full blown constitutional convention – and a pressing reason to convene one – I can’t see “A Written Constitution” (with capital letters) happening.
But there are smaller pieces we could chew on, if the will is there, to move further along the continuum towards the “more written” end – for example, continuing the reform of the House of Lords, electoral reform (particularly PR), the unresolved problems arising from devolution of power to three of the four nations of the UK, and so on.
None of this is a panacea, and it won’t be quick or easy. But we might eventually find some remedies with a more limited and specific scope.
I would live with that.
A codified Constitution is not a panacea. Electoral reform is not a panacea. Reform of the House of Lords is not a panacea. We could make a list of all the things that are not. You are right, we cannot simply codify the Constitution and say “job done”. As the wreckage of our constitutional arrangements falls around us (look out behind you!), it’s clear we have to reform it all. Sticking a few tiles on the roof will not save the building. That’s right, it is a huge job. There is no point being put off by the enormity of the task. It has to be done.
We need to stand back from the present troubles and take a longer view. That our constitution has survived for so long is because the principles of fair play and a distrust of power have been baked into the British psyche in all classes for so many centuries – even before they enabled Magna Carta to be conceived. In contrast, copies of the British model in former colonies have struggled or failed becuase the population did not have a network of common understanding that was sufficiently strong to support it. In others, notably Australia, the principles of fair play and a distrust of power are even more evident than they are in the mother country.
British history is a continuum of muddling through, and will continue to be so. This present circumstance has been created by none of the government ministers wanting to avoid inheriting the mess, leaving a vaccum for one particular oddball personality to run amok. It will pass, and there will be a small adustment somewhere to ensure it doesn’t happen again. That will probably be a tweak to the rules of electing leaders of the Conservative Party.
On this, I came across a piece in the Atlantic on the American Constitution – and what it doesn’t say: https://www.theatlantic.com/ideas/archive/2022/02/unwritten-constitution-originalist/621410/ – and how this keeps the Supreme Court occupied. And so how a written constitution doesn’t solve all problems.