5th May 2022
From time to time this blog (and my commentary elsewhere) is accused of being against a codified constitution for the United Kingdom.
(A codified constitution is often also known – inexactly – as a ‘written’ constitution, but uncodified constitutions are usually written down, just not in one place.)
This accusation of being against a codified constitution for the United Kingdom is, in my view, unfair and incorrect.
A codified constitution for the United Kingdom may be a good and welcome thing.
Or it could be a horrible and unwelcome thing, entrenching domestic executive power yet further.
It all depends.
This is because codified constitutions can be good things or bad things.
The view of this blog (and my commentary elsewhere) is that a codified constitution of the United Kingdom is not necessarily a good thing.
And it rejects the casual plea ‘and this is why we need a written/codified constitution’ that often follows some political outrage.
A codified constitution is not a liberal panacea.
It is not even necessarily better than our current constitutional arrangements – so the alternative plea of ‘at least it would be a step in the right direction’ is also misconceived.
A codified constitution could be, from a liberal perspective, very much a step in the wrong direction.
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Codified constitutions are relevant to two of the current main international news stories – the Russian invasion of Ukraine and the likely overturning in the United States of Roe v Wade.
As this blog has previously set out, there are few constitutions which on paper are as liberal and wonderful as that of Russia.
And yet the Russian president had unlimited illiberal powers at home and no check on what he orders to be done (or attempted) abroad.
In the United States, the fundamental right of a woman of access to the means of aborting a pregnancy may no longer be a constitutional right, and thereby enforceable in all the states of the union.
This is because its status as a constitutional right rests only on mere case law, and not on the express provisions of the constitution itself.
And that, in turn, is because the constitution of the United States is difficult to amend generally, and it is practically impossible to amend on the issue of abortion – and so the constitutional right depended on litigation rather than on any formal enactment.
Other rights that seemed significant in the eighteenth century are set out in writing and cannot (easily) be removed.
Americans have the right to a well-regulated militia, but not a right to regulated and safe abortions.
But…. but….
…those are different, will come the defiant response of the constitution-mongers.
A codified constitution of the United Kingdom would be just right – not too flimsy, and not too rigid.
Perhaps this ideal codified constitution will be drafted by Goldilocks.
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Again, nothing on this blog should be taken to mean a codified constitution will necessarily be a bad thing.
But one should be critical, and one should not even presume that a codified constitution would tend to be a liberal panacea.
The government – backed by the considerable resources of the government legal service and the treasury panel of barristers – would seek to game any written constitution in the executive’s favour.
And against such a concert, mere wishful thinking will be no match
But…. but….
…this should be different, will come the response of the gamed constitution-mongers.
But.
Be careful what you clamour for.
A liberal constitutional order is not easy to achieve.
And that it may be the current arrangements without codification are more liberal than anything that the government would permit to be put in place as a codified constitution.
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Every communist state constitution I’ve every read or précised has, in theory, looked liberal and desirable. But all of them make no mention of the MfS or whatever the guy who turn up on one’s door step at 0300h is called.
I’ll stick with the UK ‘as is’ please.
Thank you for your blog. An important aspect of an unwritten ( vs. codified) constitution is that in the UK Parliament is supreme and this provides a greater flexibility for collective (and representative – subject to electoral system flaws) decision making.
“A greater flexibility for collective decision making”?
So a PM, whose party got no more than 43% of the vote, could use his majority to make himself… Emperor of all he surveys?
Written or unwritten, codified or not, we need to address the fact that we have an outdated FPTP voting system, applied to an equally outdated representative parliamentary system with very few real checks and balances and which almost entirely ignores the present day possibilities of direct consultation of citizens, all of which has inculcated a party first mentality and a drift towards personality led politics, which, surprise surprise, has finally delivered a prime minister who, because he can, is acting like a de facto president.
Generally, those who advocate for a codified constitution tend to imagine themselves writing it. But, in reality, they would have to fight many people looking to introduce clauses they might not like, such as a ban on abortion.
As well as describing various rights and responsibilities, a constitution should also be a working document that enables smooth and effective governance.
Looking to the US, we see the danger of a constitution being too well revered. There is survey evidence that more than half of Americans believe their constitution is inspired by god. Over reverence explains why no matter how many mass shootings America suffers, that the constitution bestows a right to bear arms is an argument against gun control.
Most, if not all, of America’s social, economic and particularly political problems are aggravated by a constitution that, having been written for another time, is no longer fit for purpose.
Note that new constitutions are typically written after some terrible war or other “reboot”. Even the constitution of the French Vth republic was grounded in the catastrophy that was Algeria. No one would wish such a disaster on the UK, though we might get it anyway. And, as per the logic of the original post above, no one should want the government to draft a constitution without such a disaster.
As someone who doesn’t find the arguments for a written constitution all that compelling, I found Adam Wagner’s argument on the Better Human podcast to be the most persuasive on the case for, and well worth a listen: https://www.patreon.com/posts/new-episode-uks-31834096
Having said that, I think that most of the benefits could be achieved without the big bang of a single, codified constitution: for instance, parliament can replace prerogative powers with explicit legislation, efforts could be made to better document and explain the existing constitution.
In my mind, the key thing that a written constitution would bring is the ability to entrench certain decisions, for instance by requiring that changing the constitution requires a supermajority in the House of Commons.
As you say, there’s nothing to say whether what gets entrenched would be liberal or not. So the question to my mind is: do we see value in making certain fundamental aspects of our constitution harder and slower to change, both for decisions that you like and ones that you don’t? Perhaps there is value in that stability — for instance, to avoid fundamental changes on wafer-thin majorities, to promote consensus. If there’s value in that, then I think the case for a written constitution should be made in those terms, not because of a dislike for the particular policies of the government of the day.
Or perhaps to ask the more general question: a written constitution would end the concept of parliamentary sovereignty in the UK. If that’s so, what would do we replace it with? And why is that better than what we have?
I think to convince me of the case for going through the effort of introducing a written constitution in the UK, you’d need to convince me that it would lead to a better quality of government, both when there’s a government I favour, and one that I don’t. I’ve yet to be convinced!
It is possible that there are several dimensions that come in to play when considering a collection of legislation as important as a constitution. It was Yogi Berra who gave us the expression,
“In theory, there is no difference between theory and practice. In practice, there is.”
When we discuss the constitution as a concept, I suspect there is a tendency to view it through a rose-tinted lens and see only the good things, the benefits it bestows. (In fact, this may be true of almost any other piece of legislation). Observation of this maxim should caution us that when discussing something as impactful as a constitution on a theoretical basis, there will be a world of difference if or when such a constitution becomes reality.
The “Law of Unintended Consequences”, often cited but rarely defined, reminds us that the actions of people, but most especially governments, almost always have effects that are unanticipated or “unintended”. This maxim should remind us that even when a government brings forward a proposal for a more formal constitution and genuinely has the most noble of intentions, things can quickly go awry.
Taking the next step in our progressive journey, we might perhaps arrive at the “bait-and-switch”, a term generally taken to mean the illegal advertising of goods which are an apparent bargain, with the intention of substituting inferior or more expensive goods at the point of sale. This technique, for example, introduced the UK to the concept of Income Tax. When first discussed by William Pitt the Younger, I believe I am correct to state that he proposed that it would only be levied on the wealthy in society, then only for a limited period (to fund the Napoleonic Wars). What actually happened is almost the opposite – income tax is still with us, more than 200 years later; and, equally unsurprising, the bulk of income tax (expressed as a percentage of either income or net wealth) is paid by the least fortunate in society.
In 2020, university research showed that more than 10% of those earning more than £10 million per year had an effective tax rate of just 21%, less than people earning £30,000 per year. In other words, just because a politician tells you that a constitution would be a good thing doesn’t necessarily make it so.
It’s also worth noting in passing that “with great power comes great responsibilities”… For every “right” afforded by a constitution, the author[s] of that document has the ability to place one or more responsibility on the citizen. It is also worth noting that not all “responsibilities” are treated equally…. For example, in the last 20 years I’ve spent a very considerable amount of time traveling to and working in the United States. In my travels I’ve worked with US-based colleagues who are passionate advocates of the 2nd Amendment (the right to keep and bear arms) and have discussed this with them at some length. On one particular occasion, I asked a colleague if they could tell me what obligations they had in their militia. Puzzled, they asked what I meant. I explained that the 2nd Amendment actually says, “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.” I went on to say I was interested in understanding what obligations were typically placed on armed citizens by their respective militias. This actually caused *huge* offense and it was actually necessary for another colleague to call up a copy of the 2nd Amendment on their smartphone just to placate our colleague and persuade him that I was not being a smart-you-know-what.
Put another way, it isn’t the presence or absence of a constitution that might be particularly relevant, but the way that it is enforced and adjudged that sets the tone and direction of the society that adopts it.
Just on income tax in the UK, it was charged at rates of up to 10% under Pitt’s legislation from 1799 but abolished by Addington in 1802 as a consequence of the Peace of Amiens.
And then reintroduced by Addington when war broke out again and charged at rates of up to 5% from 1803 to 1816.
Peel reintroduced it in 1842, at rates of up to 3%, and we’ve had it ever since.
The rates remained relatively low, and in the main it was paid by a small number of wealthy people, until the expansion of the welfare state and the two world wars. For example, Lloyd George’s controversial People’s Budget in 1909 proposed raising the top rate to 5% plus a 2.5% surtax. And PAYE was introduced in the second war.
A small number of wealthy people still pay a lot of income tax, but as you say often at lower rates than are paid by employees with much lower incomes, particularly if you count national insurance as a tax on earned income, and take account of the low rates charged on capital gains.
This may be straying a little too far off topic, but I am reminded of the changes to VaT during the Margaret Thatcher/John Major administration.
With the widespread “civil disobedience” when it came to paying the newly-introduced Community Charge/Poll Tax, the government decided that it had to do something to reduce the impact, so they increased VaT from 15% to 17.5% and used that additional tax revenue (well, most of it) to approximately halve average Community Charge bills.
The Community Charge/Poll Tax remained a singularly unpopular piece of legislation, and when internal Conservative polling showed that it would likely lose them the next election, plans changed, the “Council Tax” was introduced – back to property-based taxes – and the actual amount being charged on average Council Tax bills was more or less (a little more) than would have been paid had the government simply stuck with the original Domestic and Non-Domestic Rating system.
But, there was a catch. VaT stayed at 17.5%. It should not have been necessary, of course, because the full tax income was now being received from Council Tax. But governments are notoriously keen to raise taxes and notoriously reluctant to reduce them.
Similarly, governments are notoriously keen to grant themselves more powers, equally reluctant to relinquish them.
The history of taxation in the UK is an erudite example of why, as David’s article explores, we need to be somewhat trepidatious when a government pops up and offers to “do us a favour”.
This is straying very far, but you could add that the VAT is based on consumption: that looks progressive because a person should pay more when they spend more, but due to the nature of the goods and services consumed by people with different levels of income, its incidence (as a fraction of income) is regressive.
The Conservatives almost doubled the standard rate of VAT from 8% to 15% in 1979, raised it again to 17.5% in 1991, and then to 20% in 2011. Yet somehow they retain the mantle of a low tax party.
Reviewing which governments borrow how much over time is instructive. Eg https://www.taxresearch.org.uk/Blog/2021/06/24/the-tories-have-always-borrowed-more-than-labour-and-always-repaid-less-they-are-the-party-of-big-deficit-spending/
Off topic but why do you call VAT VaT?
Because it’s written Value-added Tax?
Maybe in general terms as a type of tax, but not legally or officially:
https://www.legislation.gov.uk/ukpga/1994/23/contents/enacted
I’m not clear how, in practice, one could entrench a constitution in UK law given the principle of parliamentary sovereignty. Unless and until that can be solved the wider discussion of whether we’d want one and what is in it is a moot point.
The difficulty of amending the US constitution reflects a wider (fatal) flaw in the federalist approach where a minority rural population spread across low population states have an effective veto over the majority living in the smaller number of populous states. This occurs in the senate and electoral college as well as constitutional amendments.
The difficulty in amending the US Constitution is its strength. If it was easy to amend it would be much easier for an illiberal regime to succeed in attacking constitutional rights.
A codified constitution would have prevented the huge constitutional change created by Brexit being decided on a simple majority by clearly requiring that such change required a super-majority. Our uncodified system allowed that to happen by stealth.
But we joined on a simple majority. Fair’s fair.
The EU treaties are international treaties that bind both the people and the government. I’m OK with the idea that breaking international treaties requires a supermajority; but that goes for making them too. I’m fearful of new omnibus trade agreements negotiated in secret, and presented to the public as a fait accompli.
Actually we joined the EEC without any referendum. The 1975 referendum was to consent to continued membership the incoming Labour government renegotiated the terms.
Trade agreements are negotiated in secret. Any deal the UK signs with the USA will be done in secret without consulting the population. We’ll probably have to accept US standards of agriculture (chlorinated chicken, hormone fed beef, animals pumped full of antibiotics, etc) not to mention US health industry access to NHS markets and service provision. We won’t get a say. Brexit hasn’t given us more control, and we won’t have the negotiating strength the EU has to get good terms.
Almost all the trade deals we signed since Brexit are copy and paste of the deal we had as members of the EU. The much trumpeted Australian deal seems very unfavourable to the UK in terms of agriculture. It will be interesting to compare it with the trade deal the Aussies agree with the EU.
Having a referendum every time we make such an international agreement would soon wear the public down. We are a parliamentary democracy and as such we entrust parliament to decide such things in the national interest on our behalf. Referenda should be reserved for things of constitional significance such as EU membership.
There are lots of good arguments put forward in favour of our unwritten constitution. But I keep asking the question, ‘If I want to change it, how do I go about it?” Nobody has yet provided me with a convincing answer.
There are also lots of good arguments against a written constitution. But if we had to start from scratch, how many people would argue against having it written down in one place.
I would argue in favour of a constitution commission of some sort. It’s task would be to codify the status quo and recommend changes to it over a period of several, perhaps many, years. It’s not perfect by any means, but surely it’s better than our rather muddy status quo.
The Russian Constitution is not worth the paper it’s written on. The numerous clauses and subtlely limited wording creates ways for the apparent freedoms and rights it gives to be restricted by statute or decree. Also Putin has unopposed power to get any amendments he wants adopted. For example extending the consecutive presidential term limits. It is utterly useless.
The US Constitution is a much simpler document based on fundamental and universal rights. That gives it its strength. It does of course rely on judges to interpret it in an unbiased way and Trump managed to totally undo that delicate balance by appointing three right wing judges. That and the weakness of the Rowe v Wade ruling has caused the current problems over abortion rights.
Comparing the two Constitutions is like comparing chalk and cheese. The US Constitution isn’t made weak by one biased judgement demolishing one weak argument. The Russian Constitution only appears strong in defence of citizens rights and its flaws do not mean a codified constitution is necessarily a bad idea.
A codified British Constitution must be drafted by independent lawyers familiar with the unwritten version, the Governing party should have no say in it. It should incorporate the ECHR without limitation. It should be kept as brief as possible, concentrating on fundamental democratic rights. That would give citizens some protection at least against the excesses of an illiberal and extreme government. The present unwritten constitutional framework has recently proved to be almost useless in preventing a determined Government from riding roughshod over it. It’s fluid nature, evolving over time as a result of legislation and judicial rulings, which has worked well for centuries with “good chaps” in charge, is precisely what makes it vulnerable.
Given the choice of having some protection as opposed to almost none at all, a codified constitution has got to be an improvement.
Thank you Goldilocks ;-)
It being hard to do something is not a good argument against trying to do it. Especially when the Big Bad Wolf is at the door, tearing gaping holes in the patchwork quilt that is the British Constitution.
“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.”
Alistair Cooke never tired of praising the ingenuity of the drafters of America’s Constitution for expressing such fundamental principles of humane values in such well-crafted terms that generations of Supreme Court Justices, appointed because of their brilliant intellects and encyclopaedic knowledge — nothing more — would always find something in the text to guide and justify their rulings on absolutely any case brought before them.
It’s a shame that the drafters of the second amendment were second-rate. Whoever inserted that first comma rendered the sentence unsyntactical (if such an equivalent to “ungrammatical” exists) and put a red herring in the path of anyone trying to sniff out an interpretation.
Taken as read, “militia” ought to be the subject of a missing verb straight after “State”,” It would have been better if the document had never been written, but committed to memory and transmitted exclusively by oral tradition. Then the obvious use of the Ablative Absolute would have been taken by later Americans in their strides. (“H’mm! Nice strides! And good chaps, too!”) As the writers, being good Latinists, well knew, the first six words bear the various interpretations “Because/since/while/if/so long as a well-regulated militia is necessary…”, the implication being, though unfortunately not spelt out, that as soon as any of those conditions no longer prevail infringement is perfectly acceptable. However, the one favoured by the NRA is “Because”. It implies that the Founding Fathers knew that a militia (“well regulated”, but we’ll work round that) was going to have to be a permanent fixture.
Afterthought.
A comma hanged Roger Casement.
IMO a single overarching Constitution for the UK would be impossible as the UK is not a unitary state despite the false claims of ‘British Nationalists’ – represented today by the ERG faction of the Tories – since the UK is a union of four countries plus other bits (Channel Islands, Isle of Man, Isles of Scilly) all linked by a number of treaties made and modified over hundreds of years. These treaty documents are the ‘Constitution’ of the UK.
Each part has a different status with NI & Scotland retaining their own legal systems and for example, from 1920, updated in 1998 NI & again in 2021 with the NIP part of the UK-EU WA being a unique hybrid & both in the UK Union & a part of the whole indivisible island of Ireland. Hence all born in NI are citizens of both the UK and the ROI.
The USA is not a single overarching state either. It’s a Federal State. As long as a codified constitution doesn’t infringe on devolved powers where is the problem?
It would take making the UK formally into a federal state – IMO Germany would be a better model for the UK than the US.
I very much agree that discussion of a written constitution only makes sense in relation to where we are now.
Our current arrangements have evolved over a long time reflecting developments in culture, institutions, society, the economy, politics and everything else that makes a nation.
Asking whether constitutions are necessarily a good thing, I would argue, makes little sense in the abstract.
Clearly the example of Russia shows that they are far from sufficient to be a good thing. But are they in some cases necessary for good governance ?
I would prefer to approach the issue rather by asking – what problems are we trying to solve ?
If we are worried about the lack of accountability, then we can consider if codified arrangements would help. If we are worried about the lack of representativity of our Parliament, then there are solutions to that. If we are worried about the culture of secrecy throughout our government, then we can tackle it by promoting transparency.
And maybe all these things are connected, and need to be addressed together.
A couple of additional thoughts.
We have a long history of imposing written arrangements – ‘treaties’ and the like – on others. But not wanting them for ourselves. A culture firmly rooted, apparently, in the highest levels of our current government. If I look at who doesn’t want to be constrained by written rules, and why, then that makes me pause for thought.
As to the ‘necessity’ of written constitutions, theory may be one thing but the practice in almost every other democracy points in one direction. That may be of little relevance for us now. But what about a new state ? Not such a theoretical question in the case of the unification of Ireland. Or independence of Scotland. Or Wales. Maybe such developments would prompt a discussion of federal arrangements. All of them will involve the question of a written constitution. Sooner or later.
A codified constitution is neither necessary nor sufficient, but most other countries – liberal or authoritarian – have one. As David might say, what is more important is a culture of constitutionalism – respect for the rights and duties of citizens, for the rule of law, and for the written and unwritten rules of the social contract that binds a polity together.
For me, the question is simply, would it be better to muddle along as we have, with flexible constitutional conventions that can be changed or ignored at will, or would it be better to attempt to write down as much as we can, in as simple, clear and easily accessible manner as possible?
What use is muddling on with what we have if that gives no protection against an illiberal populist government? Muddling on is only acceptable with “good chaps” in power.
That is certainly one way to answer the question.
But if that constitution is written by – to adopt your words – an illiberal populist government, and then interpreted and enforced by an illiberal populist government and the legal mechanisms that it creates, what good does that do?
I’ve said elsewhere in the comments it should be written independently of government by people who understand the current uncodified system. It would be interpreted by the Supreme Court, not the government. The whole point is to protect citizens’ rights from erosion by legislation.
The Russian Constitution isn’t evidence of why a codified constitution is a bad thing, it’s an example of a bad constitution. Deliberately written to limit rights, not protect them.
That’s all a constitution should do, protect public rights. It’s the top level. New statutes and common law beneath it should be judged against the fundamental rights the constitution protects and struck down or amended if they are found to break it.
Parliament would still be supreme as long as it didn’t pass an unconstitutional law.
Are those who say that parliamentary sovereignty means that we shouldn’t have a written constitution missing the mark? Isn’t parliamentary sovereignty ultimately subject to the sovereignty of the people, which is, or ought to be the ultimate source of sovereignty in a democracy?
Given the many arguments both for and against a written, codified constitution expressed so compellingly in the original post, and the comments above, it seems there are unquantifiable risks in having one AND in not having one. But it is clear that getting one would be a huge all-or-nothing undertaking.
However, there may be many smaller steps that could be taken incrementally to improve the status quo. For example, a fairer voting system, a means of representation that better reflects the views of all of the people all of the time, and measures to discourage self-interest and self-promotion. If we can’t even do these things then, unless the idea of a written constitution is somehow so galvanising of public and political support as to become irresistible, we have no chance of achieving that much bigger goal.
As a thought experiment, are there countries with a robust Goldilocks constitution?
When did a party’s election manifesto (as distinct from its constitution, which governs its obligations towards its members and vice versa) become a legally binding document? The notion has only been circulated in the public prints during the latest third of my lifetime.
I have no idea how that comment ended up in this thread.