26th October 2022
From time to time it is worth revisiting the question of whether we should have a codified constitution.
For many the answer is self-evident.
Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.
The view of this blog, as you may know, is more sceptical.
There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.
In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.
Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.
The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.
And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.
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So: are our current constitutional arrangements liberal?
Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.
But.
Take a moment.
Here are three counter points to consider.
First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases. And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.
Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.
And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.
If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.
We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.
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That said, there are problems.
For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.
And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.
Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.
And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.
The counter-case is strong.
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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.
The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.
We cannot always trust illiberal ministers to make easy mistakes.
And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.
Brace, brace.
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From the dutch perspective the voting system (first past teh post) is part of the problem/solution. We have, in the last few years, seen a struggle between faction within labour and tories which should have been fought out in the open: i.e. proportional representation. With, perhaps, a german minimal percentage of votes as hurdle.
There is one useful tool with first past the post (FPTP) – simplicity.
It’s not that the electorate won’t understand PR, it’s that every layer of complexity allows the opportunity to obfuscate, lie and misrepresent- the basic tools of politicians. It is also possible to bury several illiberal bombs in the supposed liberal legislation – and we know who we have to rely on to vote to change the electoral rules.
This is why I favour extending the current simplicity, by replacing the House of Lords with a second chamber for those who came second at the election (SPTP). This would be the chamber leading scrutiny bodies, select committees, and approving new legislation within the limits currently placed on the Lords.
No doubt there are intelligent arguments against, but many more of us would actually be represented in parliament.
I feel a lot of the issues with FPTP could be remedied by making an absolute majority of votes a requirement to win a constituency (either via preference voting or run-offs between to top two).
FPTP is below the standard that we should require of a voting system. It can elect the candidate that the voters consider to be the worst (i.e. one who would have lost, if faced with any one of the other candidates alone).
Once again, and I know I’ve said this multiple times before, but I fail to understand why the more effective parts of our constitution would be lost with codification.
The UK only ends up like the US if we adopted the US constitution (which would be a bit silly, given that the past two centuries have produced many, many constitutions that have learnt from the mistakes of the American Founding Fathers – who, after all, were leaping into the unknown, attempting something entirely novel).
The Australian constitution, for example, has done nothing to prevent a pretty regular churn of PMs; if they can get rid of a PM on a whim, as they regularly seem to, then why would the UK suddenly tie itself to PMs serving full terms? Why, indeed, would any body given power to draw up this consitution decide that we needed to throw out all constitutional provisions that currently exist?
It would, however, be reasonable to expect a codified constitution to create substantial barriers to its alteration. So, for example, the power of the Supreme Court to prevent governments from acting against the rights of Parliament could not easily be removed, if it is protected within a codified constitution – whereas our current government has a manifesto commitment to diluting that exact power, which they are freely able to do.
This, to my mind, is the central argument for codification. It isn’t about any particular clause that might be in a hypothetical Constitution of the United Kingdom. It is that codification protects the constitution, whereas our current settlement offers no protection whatsoever.
The difficulty with trying to codify the constitution is that Parliament, specifically the House of Commons, is supreme. And Parliaments can do very little to stop a future Parliament from overruling it.
We have already had an experiment with a “constitutional” law, the Fixed Term Parliaments Act, which required an absolute threshold of two-thirds of Commons members. However, that Act was this year quietly repealed by a simple majority. The Supreme Court was only able to check the government because those governments did not have, or demonstrate, a Commons majority. The outcome of both cases was to firmly put the ball back into Parliament’s hands, reaffirming that parliamentary supremacy.
As long as the doctrine that the Commons are supreme holds, there cannot be a protected constitution, codified or not. In both America and Australia, their constitutions allow amendments but provide protection by routing them through multiple legislative chambers(and in the latter’s case, a final check by referendum) to varying thresholds more substantial than an unicameral majority.
In order to protect a constitution, Parliament must transfer at least some of its supremacy to something else, so there is an additional authority whose consent a Prime Minister with a simple working majority must obtain. It could be a much more powerful Supreme Court, a re-empowered House of Lords(or a replacement second chamber), an elected head of state along the lines of the Irish presidency, the electorate, etc..
We would need to create those institutional arrangements at the same time a constitution is codified, or beforehand, and we do not have anything suitable to be thrust into the role yet. The Court is perhaps too deferential to Parliament, the Lords are simply not democratic and swapping the Crown for a more discretionary non-executive President is complicated given how many ministerial prerogatives are technically exercised upon the head of state’s behalf.
“As long as the doctrine that the Commons are supreme holds, there cannot be a protected constitution, codified or not. ”
Yes. But that isn’t quite the doctrine which is rather that Parliament is is supreme.
Quite right to focus on the reform of the second chamber.
The current ‘House of Cronies and Lickspittles’ could be abolished wholesale with little regret. It signally lacks all public credibilty, and grossly insufficient democratic authority to provide a counterweight to an executive that already controls the Commons (or at least is intended to – the last twelve plus years suggests the two Party System is finally failing, despite FPTP).
I suspect the only second chamber that might actually do the job is one democratically appointed – by sortition.
Given that probably isn’t on the cards just yet (!), I’d settle on reform of FPTP but only if allied to some really serious changes on electoral manipulation through the use of money, and the broadening of the understanding that there is great deal more to a democratic society than simply casting a vote in a General Election.
Incidentally I share DAG’s opinion on a ‘supreme law’. Never entirely understood why its thought a good idea to bind future generations to the invariably outdated ideas of a previous generation. If its meant to imply some ‘timeless collective values’, read some more intellectual history, or simply a book on etymology: there are no such values.
“Never entirely understood why its thought a good idea to bind future generations to the invariably outdated ideas of a previous generation.”
Who is thinking that? Take Ireland’s constitution referred to as a model by Patrice+Fabien below. It can be and regularly has been changed by referendum.
As aside, I think Patrice+Fabien has hit upon something: It’s amusing that Britons only seem to want to compare their constitutional arrangements with those of countries whose size and grandeur in their eyes make them worthy of the comparison.
“The difficulty with trying to codify the constitution is that Parliament, specifically the House of Commons, is supreme. And Parliaments can do very little to stop a future Parliament from overruling it.”
“Parliament is supreme” is one of the rules of the current (uncodified) constitution. But, of course, it need not be one of the rules of a hypothetical future (codified or uncodified) constitution. Other constitutional rules are available.
As usual, very good blog David, set out coherently … but are we not going round in circles here? Your 1st statement, as far as I am concerned, encapsulates one of the many concerns I have:
“First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.”
Why, oh why did it take a court action, to the highest court, by a wealthy and constitutionally concerned citizen, to take the Executive to task? Constitutions should not be the preserve of lawyers, politicians or law courts – as a first step, a constitution should be accessible to ordinary citizens. Put simply, which piece of paper does a British citizen waive at a rogue Executive?
It is also a weak argument to revert to the USA to point out that written constitutions are not ‘ideal’. Likewise, to refer to India etc. These arguments are reminiscent of citing Italian politics to ‘demonstrate’ that British democracy is the envy of the world, and that we are lucky not to live in North Korea – is that the dead cat approach, incidentally? If one wishes to find a good, liberal, written constitution, one does not need to consider the USA, or India etc., as clearly they are poor examples. May I therefore suggest the Republic of Ireland, our next door neighbour, as a starting point, with a meaningful Citizens’ Assembly thrown in. Alternatively, one could consider the ‘index’ of democracies and assess the top 10 (which incidentally does not include the U.K.!), and why they are in the top 10?
I wonder if the key issue is enforceability? Whether a constitution is liberal or illiberal, codified or unwritten, surely what matters is that whatever the constitution is, it is enforced. Without this, even a written constitution would be ineffective in the face of a PM who simply ignores both the formal rules of office and the informal expectations of those who hold that office.
Very good points. But enforceability by whom? Those who know how to read and interpret statutes, conventions and what not? I wonder how many British citizens know what Henry VIII’s clauses are; prorogation of Parliament etc. In a way, I suspect British people are as ‘unknowledgeable’ about how they are governed as they are / were about the EU. It took ‘extraordinary’ events for that ‘ignorance’ to be exposed.
If not enforceability then, how about the willingness and preparedness of the government to be bound by the constitution?
Without that, it doesn’t matter whether a constitution is handed down from father to son, memorised word-for-word by a sect of mystical shamen; or carved into the walls or Westminster Hall.
But with that said, enforceability could be by the courts; and/or by something like (if not actually) the Parliamentary Commission on Standards, whose current role actually seems to encompass what I imagine would be involved in enforcing a constitution, given that it would be MPs that breach it – the Code Of Conduct could be redrafted such that compliance with the constitution becomes an enforceable obligation.
That is a crucial point. I live in the US, and I can tell you that the US Constitution is very nearly ineffective.
There are hundreds of political prisoners from the Jan. 6th protests held in detention, apparently they can be held permanently. Many have spent moths in solitary confinement. Meanwhile the FBI is uding facial recognition technology to hunt down other attendees right across the country. It is disgraceful conduct.
We do have very courageous organizations such as Judicial Watch, who are tireless in using legal means to challenge unconstitutional actions by the govt. Unfortunately the govt. is huge, and they control the stormtroopers.
So, no, a written constitution is not necessarily the answer.
In Britain if the Constitutional Monarchs would do their jobs changes to the constitutional arrangements would be unnecessary.
I sense a shift. The points you make about what is codified, are, of course good ones. Codification in itself is not a guarantee of a liberal constitution. As you say
“If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.”
I have to say, suppose it didn’t entrench executive power, but draw a balance of powers?
But that isn’t all. As I have commented before, if Democracy is rule by the consent of the goverened, how can it be democratic that the majority of the citizens are unable to read a document that tells them on what basis they give their consent?
Moreover, if the objection is that drafting something new would be difficult, and risky (it probably would, especially with this govt. in office), what is the obejection to codifying what we presently have? And providing a summary? So that Joe Citizen could read it, and understand the terms of the contract. What can be the harm in that? And of course, the document could also be used as a basis to educate children at a suitable age, about the duties they owe the State, and the duties the State owes them. So they might take better informed decisions, in the future if they should wish to adjust the contract to take account of political and cultural change
Nothing is a panacea. The law is not a panacea. Our current Constitutional arrangements are not a panacea. All human creations are by their nature imperfect, because, well that’s just human. But if we don’t make the effort, how will things improve?
The notion of a child owing a duty to the State suddenly fills me with dread.
“Moreover, if the objection is that drafting something new would be difficult, and risky (it probably would, especially with this govt. in office), what is the objection to codifying what we presently have? And providing a summary?”
That it would be valueless, pointless – nugatory (a favourite word in the Civil Service) – work, Simon?
You need to make a convincing case for the benefits of doing it, not simply arguing that there’d be no harm in it, given the prodigious effort and expense that it would involve: and as far as I can see, there is no case for it – we seem to have gotten along pretty well (all told) without a codified constitution so far.
Again: the problem isn’t with the format of the constitution, it’s with how to ensure compliance with it.
Does Scotland have a codified constitution? Does Scotland even have a constitution? As I understand it, when Donald Dewar set up the rules for Holyrood parliament, he said that the way the rules worked, no one party would ever have a majority. And yet here we are under the never ending rule of first Alex Salmond, and now Nicola Sturgeon. Help!
(Apologies if I risk of wandering off-topic, but….. )
So Donald Dewar got something wrong: a prediction. Well, well! But — on any grounds other than your disappointment with recent developments — was he wrong in opting for the principle of proportional representation? That same system initially gave rise to a Labour-controlled administration. Did PR in the form of the Additional Member (or “List”) system suddenly become fundamentally unfair when they lost?
In short, can representative democracy be just a wee bit too representative?
“In short, can representative democracy be just a wee bit too representative?”
Indeed: Democracy doesn’t mean getting your own way, a fact which is apparently lost on some folk.
The Consitution in Scotland is based on the Declaration of Arbroath of 1320, which ststed that the people of scotland are sovereign and that if the king, were to do something against the good of the people, he could be deposed and another selected. This actually happened in 1689 when the Scottish Parliament deposed King James VIi (James II of England) and invites Wulliam and Mary to rule in his place. James had been guilty of attempting to force the Catholic religion upon the Scottish people, contrary to their wishes.
There was also another body in Scotland, given that the Parliament of the time was not representativeof the ordinary people, called the convention of the Estates, which was drawn from the burghs, churches and barons, so possible more representative, though not by much.
There have been moves in Scotland recently to renew this idea as many feel, (see the comment above!) that the scottish Parliament 0Along with the SNP MPs in Westminster are not fulfilling the wishes of the people, in particular by not pushing more agressively for Independence which we have a right to if there is a majority supporting that. The SNP government and their MPs in London could assert the sovereignty of the Scottish people and call for ending the !707 Union with England immmediately, if they had the will on the grounds that a union agreed between two sovereign states can be ended by either if one decides yjat such a union no longer benefits them or the other party is guilty of breaching the terms. This certainly applies to England, particularly since Brexit, which about 2/3 of Scots voted against, and which has resulted in other breaches such as the UK single market which forcees scotland to accept rules on food production, animal welfare etc which are not compatible with ours.
For more on this, if any one is interested. look up the Scottish Convention of estates, Declaration of Arbroath and the recent Scottish Sovereignty Research Group.
Many people in Scotland including myself are looking into the Constitutional siuaution of scotlnd, where the idea of unlimited parliamentary sovereigny doew not apply under Scots (intended to be protected under the terms of the Union). At present we have two governments one in westminster and one in Holyrood blocking any routes to scottish self-determinationwhich is not sustainable. Scotland is either an equal partner in the Union or it is an English colony. At present it looks like the latter as our resources, for example in energy, are being plundered and used by our colonial masters to their advantage (Why do we have the highest electricity prices in the UK , if not Europe while we are a net expoerter?), our culture and languages denigrated and suppressed and our people forced to leave and work elsewhere because of lack of opportunities and housing (in desirable areas, houes are bought by incomers who offer prices the locals cannot afford). Before the Union the scottish population was 1/5 of that of england: now it is 1/12 which shows how badly our economy has been managed over the past 300 years.
When considering the English consistution, please realise that the present UK is likely to change drastically soon with both Northern Ireland and Scotland leaving, and possibly wales too. England may well be on her own in 20 yers or so.
A moment of appreciation for the throwaway “and so on” in the paragraph beginning “Second”
Interesting but academic, in our current political situation.
The arguments seem to boil down to saying that it all depends on what the constitution, written or unwritten, actually contains, and how easy or difficult it is to change.
My complaint about our unwritten constitution is that it often very difficult to know what is in it, and as a non-expert citizen I certainly don’t know how it can be changed.
Where is the accountability for what is in our constitution?
The Constitution of the French Fifth République was drafted in 1958 by Charles DeGaulle after he had been forced out of retirement following the effective collapse of the Fourth République.
Pre 1958 French Governments were being formed and failing at an alarming rate. There were problems with sovereign territory in Algeria.
Whilst the new Constitution was being drafted the General
on occasions governed by Decree.
Whilst the Uk may not be in the same mess as France in 1958 the history is worth considering.
In 1962 Algeria became an independent country.
Whatever the Uk does or does not do there will be consequences which will not please everyone.
The Miller cases were hardly a success for the constitution. They were brought by a citizen with the money to seek judicial review and the courage to take the flak from the leaving EU side. Another time, another situation, there might not be such a citizen.
The Benn Act. Only got through because, at the time, the government did not have an overall majority. Things would have been different had they had a big overall majority – as they now do.
In numerous ways Parliament is nowadays under executive dominance. See how the executive controls most of its business, how the executive can mostly ignore committees and their valuable reports.
A general election every 5 years but, meanwhile, the executive can change its leader without recourse to the people and may do that without any constitutional requirement to go to the country within (say) even a year of the change.
We could go on.
There are difficulties with any written constitution – how to prepare it, what will be in it, what will not be in it, how will it be made binding etc.
That does not get us away from the fact that the present system is unfit for a modern democratic state. All the present system is doing is propping up the fiefdom of one political party.
Change is needed and will become unavoidable.
Well expressed. Flippancy aside, paraphrasing, I cannot help but think of one of Tarantino’s quip by one of his characters(true romance?):
Best to have a gun and not needing it, than to have none and needing one’. Substitute ‘gun’ (mercifully!), for ‘written constitution’ and hopefully one will get my drift.
“Best to have a gun and not needing it, than to have none and needing one’. Substitute ‘gun’ (mercifully!), for ‘written constitution’ and hopefully one will get my drift.”
Aside from “it will be written down”, what actual tangible benefits will derive from a codified constitution Patrice?
More specifically, what is it about “it will be written down” that you imagine will make the necessary difference?
Access to all. What rules govern us all in plain English. With the ability to ‘revise’ and update it via citizens’ assemblies. Drag the U.K., for example, into the 21st century as regards constitutional matters. And let us stop thinking about the US as as a reference point – it shouldn’t be.
I am still on the fence, but one thing that worries me is that a codified constitution is in danger of becoming a kind of holy book, as it is in the USA. Values and practices are then frozen and inviolate for centuries.
There was an episode of “Star Trek” on this theme. Captain Kirk visited a planet where a priesthood recited a sacred text which none understood, in a seemingly lost tongue whose pronunciation could only be guessed at. Kirk was handed the document, recognised it and began reading:-
Constitutions need not be ‘frozen’ for ever. Changes can be made, provided the are mechanisms in place to make sure that ‘improvements’ are made, in the spirit of the original text.
The value of a constitution, whether codified explicitly or not, depends critically on two things: what it says and the culture of enforcement. People usually only consider the former. For example, the USA has a constitution which explicitly bans
“unreasonable search and seizure”, yet about two thirds of the population are open to arbitrary search at any time (due to the exemption for border searches which allows them to take place within 100 miles of the border).
There seem to be at least three distinct interesting questions being considered:
1) Are codified constitutions always better than uncodified constitutional arrangements?
2) Would our existing constitutional arrangements be better if codified?
3) Could we even introduce a codified constitution in the UK?
The answer to 1 is clearly ‘no’. Russia has a codified constitution but I think we’re all in agreement that our system is preferable. We might tweak the question to avoid this counterexample by saying something like ‘are codified constitutions which are given real effect always better than uncodified constitutional arrangements?’, to which the answer is also ‘no’. We need only think of an extreme example of a deeply illiberal and authoritarian state where the daily practice of government instantiates the constitution as drafted (as opposed to Russia, where the constitution is arguably a bit of paper with little bearing on the actual practice of government) and compare it, once again, to our own system, to see this.
The more interesting question, then, is whether our system would be better if it were put on a codified constitutional footing in something like its current form. There, I think the answer is both ‘yes’ and ‘no’. There are cases when it would be an improvement to have a superior legal instrument which, by virtue of being entrenched, could ground a constitutional court’s decision to strike down, say, legislation, or a decision. But there’s also a useful flexibility to our current approach which would probably be lost, because legal drafting would require that the fuzziness be removed. Admittedly, in some cases this might be positive – particularly where scenarios simply not envisaged by our current arrangements were worked through, if only because a constitutional exercise would probably get us to address those lacunas. (I’m thinking, for example, of a constitutional provision stipulating what happens when a Prime Minister is booted from power…)
Finally, the point feels somewhat moot given that we can’t implement a codified constitution without the sort of foundation-shaking social rupture that other nations have gone through and which has left them with a blank canvas on which to design a brand new state. Parliament could pass an Act tomorrow entitled ‘the UK Constitution’ which consolidated all the functionally constitutional statutes, SIs and conventions that we have, but it would still just be another Act that a simple majority could overturn. The predictability (/rigidity, on a pejorative reading) that a codified constitution gives is, in large part, a result of its being entrenched. We’d need a total reshaping of our politico-legal tradition to get that.
Abolish the swearing-in of MPs. Break the log-jam.
My final, final comments about the British ‘constitution’ (extracts from today’s newspapers in connection with Liz Truss’s resignation ‘honours’ list:
“These things are done in a very British way,” said the source. “I think it will be clear that this would not be right. It will a be a case of … you don’t want to embarrass the king, do you? Another senior figure who has served at the highest levels in Whitehall said there was no doubt that Truss, having been rightfully chosen and served as prime minister, had a right to draw up a resignation honours list, and that her successor – in this case, Sunak – would not be expected to stand in her way. While there are no formal rules, the system is governed by convention which dictates that whatever is proposed by an outgoing prime minister would be expected to be unopposed by his or her successor.“
I think we all get the picture.