24th August 2023
One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.
An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.
This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.
A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.
From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.
There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.
Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.
Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.
But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.
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In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.
Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.
This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.
But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.
What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.
And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.
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It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.
Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.
The battle is not about constitutionalism against anti-constitutionalism.
It is between two contrasting and irreconcilable views of constitutions and what can be done with them.
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The battle between State’s rights and US Constitution is as old as the nation and long predates Trump. Trump’s abuse was blatant and obviously illegal. It was Republicans who saw that that prevented his coup.
The Russian Constitution is a good example of an illiberal Constitution. On the face of it granting democratic rights but at the same time having provision for them to be pushed aside.
At least a liberal codified Constitution has clear lines of defence against abuse. An uncodified Constitution has no such protection and primarily relies on those in charge to follow convention. Parliament is supreme but Parliament can be easily usurped if the PM is determined to do so by populist methods.
But there is no clear route in this country to a liberal codified constitution, only an illiberal one.
Indeed, which is why Parliament should not be in charge of writing one. A solution might be to follow the lead of the US founding fathers and create a set of rights which all new laws must not impinge on.
A codified constitution should not be a set of laws but a set of principles which the Supreme Court can judge new statutes against. The fact that our statutes become part of our uncodified constitution is the main problem with it. Parliament can constantly tinker with the fundamentals.
Parliament is sovereign, but you don’t believe it should be charged with writing a constitution? The founding fathers of the United States were creating a completely new government, a new state. Do you want to replace our constitutional arrangements entirely?
I’ll tell you something for nothing, I certainly do not want the Supreme Court to have the power to shoot down laws. I like our Parliamentary sovereignty. I don’t agree with anyone who argues that Parliamentary sovereignty is the problem.
The worst thing that could happen here would be to follow the US example. Why believe that this would lead anywhere other than the dumpster fire that is the US polity today?
Absolutely not. Imagine the Constitution the current Government might draft. A Constitution has to be neutral politically, not favouring one extreme or the other.
That is a very bald statement from DAG. There is a clear route to an illiberal codified constitution but no clear route to a liberal one? Justification please?
Maybe not today David but back in the era of “Good Chaps” it may have been possible to frame a written constitution that avoided the pitfalls that other countries have and are experiencing. The situation is not helped by simultaneously needing to produce something quickly whilst making sure sufficient time is taken to ensure things are done properly with suitable checks and balances.
“But there is no clear route in this country to a liberal codified constitution, only an illiberal one.”
Revolutions do occur. They provide clear routes to new constitutions. It cannot be assumed that the UK is immune. Other routes exist, and indeed have been used by many other countries over the years. Again one should not assume the UK is a perennial exception.
And that is why, if you read carefully, I said there was “no clear route” rather than “no route” – in anticipation of this very counterpoint.
A codified Constitution eventually becomes very difficult to amend, and that is ultimately why it should be avoided.
Ideally it will be written in such a way that amending it won’t often be necessary. I would argue our unwritten constitution is a problem precisely because it is constantly changing.
This is clearly a bone of contention. As I always argue, what do you want your written constitution to do? How do you want the powers of the state to be constituted?
That’s the important thing. If a constitution is poorly thought out and poorly written, then it will perform badly. A written consitution will not necessarily solve the problems that you see in our consitution. It is not a silver bullet.
Yes of course. That is a statement of the obvious. It isn’t an argument against a written constitution.
And still no argument for one. You propose the major change. The burden is on you to convince others that a written constitution would be worth the effort and the risk.
You can begin by answering my question. How do you want the powers of state to be constituted, if not to have a sovereign Parliament? Then we can argue about that. Its pointless to argue about THIS.
That Trump himself couldn’t care less about constitutionalism is evident in a Truth Social post he wrote in December 2022 that read: ‘A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.’
If that is true, why did he want to use a constitutionalistic ploy to keep power? He does care about the constitution, when it suits him.
Smile for things could be worse. So I smiled and things did get worse. One of the achievements of this blog (and there are many) is to make me review my attachment to a written constitution.
My initial thought was that it would be complex, but with goodwill and a reasonable level of competence it could be achieved.
Now I realise that there is no goodwill, and the present state does not have the necessary competence (having replaced an elderly but functioning motor of state with something out of Arthur Dailey’s forecourt).
You have returned to the notion of a written constitution a number of times. I want to suggest a consideration you have not so far addressed. A written constitution is above all accessible. Our current constitution is a mystery to most – including most MPs. There are many things about our country which are not remotely democratic. This is one of them.
Parliamentary sovereignty is as democratic as you can get in a representative democracy. Everything else is just noise.
As accessible as the United States constitution clearly is, I don’t see how this is helpful when we have lifetime appointed justices imposing their personal interpretations and ignoring stare decisis for no other reason. That is not at all democratic.
We can read the constitution. What we cannot ever hope for is to agree on its meaning.
Whether parliamentary sovereignty is as democratic as you can get depends on the voting system. Our current system is more like an elective dictatorship at times.
It is usual for the most senior judges to serve until they retire. It happens in the UK too. The appointment of the US Supreme Court justices is intended to be even handed. The system has been abused recently resulting in a court stuffed with conservatives. That will rebalance over time and does not mean the US Constitution doesn’t work well generally.
Okay, so now we’re getting somewhere. You want to change the voting system. Great. Doesn’t require a written constitution, just the political will to make it happen. Without that same will, you’d never get this into a written constitution unless we were starting over.
Because sometimes you have to use/abuse what you’ve got. If he could have “terminated” the constitution at a stroke and declared himself president forever, he would have done that.
But what is to be done? If constitutionalism is not the answer and the ‘good chaps’ theory of government breaks down, what are we to do?
(Autocomplete had that as the ‘good chaos’ theory of government.)
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“From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.”
Isn’t there another test: how enforceable it is? You’ve given examples of how other arms of the state have stepped in with Article 50 and the attempted prorogation. But these were very heavy lifting. And we’ve run into enormous procedural problems with other examples of misconduct of the the executive. Might a written constitution (of whatever degree of liberality) improve access to scrutiny, review and action by the appropriate bodies?
Why always point those who call for a written constitution towards the United States of America, instead of towards Ireland – a country which took the British unwritten constitution and, with a few tweaks, codified it?
A written constitution is not always bad, but it’s never going to fix power imbalances until those imbalances are fully articulated.
I have yet to hear a single commenter explain what is so bad about our constitutional arrangements except to point out that they are not codified and argue that they are too easily changeable, as though this were bad in and of itself. I disagree entirely. It’s completely the opposite.
The point that the constitution is harder to access because of its fluid and multi-sourced nature seems valid until you realise that there is only one thing to know. Parliament is sovereign and makes all the laws. That is the essence of our constitutional monarchy.
That’s all that matters, and that is not at all bad. Parliament is limited only in that it cannot bind itself in future. It’s really very simple*. The complicated checks and balances that people long for are not.
This system works much better. Every five years or less, the people can express their outrage for how any autocratic government has chosen to behave. And recent events have demonstrated that even with a huge majority, a runaway government can be stopped.
So again, I ask, what actually are the problems with our current constitutional arrangements that call for a codified constitution?
*In theory, a monarch could withhold assent on some particularly egregious law, but it is hard to imagine. And that would likely only result in the monarch’s power being further reduced or even abolished.
Worst case, there is nothing to stop an extremist government abusing the supremacy of Parliament to put themselves permanently in power.
However the main advantage I see is that any new legislation would have to be compliant with codified constitutional principles. People would not have to rely on links with the ECHR and “international law” to appeal against oppressive “un British” laws.
The only constitutional protection we currently have is the Monarch, who may be very reluctant to intervene in a Parliamentary matter, as the late Queen was over Prorogation.
You’re talking about a scenario which you believe could happen in the worst case. A revolution could also happen. Anything could happen. Aliens could invade from outer space.
I still have not heard why our current arrangements are not working. There has been no attempt to set aside democracy. There have only been populist power grabs where ultimately the courts have come down on the side of Parliament.
“However the main advantage I see is that any new legislation would have to be compliant with codified constitutional principles.”
This is the road to ruin. That leads to the politicization of the judiciary. And why is it needed? What new legislation or proposed legislation has crossed that line? Still just in the realm of “what ifs”.
“…This is the road to ruin. That leads to the politicization of the judiciary. And why is it needed? …”
Matt – good point.
I can only see benefit for the extremes of liberals and illiberals.
For liberals, many trust the judiciary more than they trust politico’s – we’re seeing more of this all the time with judges/NGO’s being asked to intervene in laws already enacted or in some cases laws that they don’t like.
For illiberals, the challenge is more to do with semi autocrats like Orban in Hungary and in Poland.
I genuinely doubt the judiciary really want to get involved with political issues but society is changing & maybe the role of the judiciary will inevitably have to become more political with the obvious question – what is the point of a Parliamentary representative democracy when you’ve just got to get your favourite judges to invigilate for you.
Ministers attacking judges is politicisation, judges responding is politicisation, a head of the Supreme Court deciding that judicial review should be more difficult is politicisation, as was his predecessor being more open to it. The relationship between government, parliament and the courts (and indeed the crown) is a political issue. Politicisation cannot be avoided.
These relationships need to be discussed openly, and decisions on them must be enshrined in a constitution, whether written or not.
It would be no more political than it is now with judicial rules. Judges would not be making political decisions they would be judging legality.
Strikes me that what you’re really arguing for , is what is known on the continent (& followed by many in the EU) as the Napoleonic codex.
ie. everything is prescribed as to what you can do – top down – this is effectively the antithesis of UK common/case law.
Not clear that the two legal systems can work in hoc, given the quite significant philosophical & jurisprudence differences.
I suspect changing the UK legal system to more of a Napoleonic one is a) a hard sell b) would fundamentally change the nature of the way in which the UK thinks of the state c) probably isn’t, in reality, going to happen?.
Maybe 1000 years of not being invaded gives us a different historical viewpoint?
No that’s not what I’m arguing for. Strawman arguments are a fallacy.
Kevin – it seems others, like me are ( genuinely) struggling to understand your arguments for a written constitution.
We already have a Supreme Court in the UK – that like Parliament ( HoC & HoL) are two of the ‘checks’ & balences to hold of an over mighty government to account.
The trinity of Government, Legislature & Judiciary has & continues to work remarkably well in the UK – sure there are improvements that could be made – many commentators are just keen to better understand how a written constitution could make the current situation better?
As Matt Flaherty has already written, statutory instruments inc the use of Henry VIII clauses are much less frequent in their use ( ironically statutory instruments were used significantly whilst we were in the EU to enact EU directives/regulations). Clearly, with Brexit their use has reduced significantly.
John,
You used a strawman argument against mine. In other words, you misrepresented my case and then argued against that. I think you understand what I said perfectly well, as does Matt. My argument for a codified Constitution is about protection against illiberal primary legislation, whether from the extremes of left or right. If you don’t agree that’s fine but please don’t confuse things by talking about the EU, Brexit and statutory instruments.
I mentioned the worst case as that is what it is. Not what I expect, but it is possible in extremis.
You missed the point about my main reason. It is not about what the current government has done, where ministers have been found to be acting against existing laws. It is about what an extreme government can do. Parliamentary supremacy means that statute law overrides everything. Only an appeal to the ECtHR might succeed. A written constitution would provide a framework of principles Parliament could not exceed by statute.
I have not missed your point. I vehemently disagree with it. And since you provide no compelling reason other than conjecture about the some far fetched future, I find no argument in favour of supplanting Parliamentary supremacy.
My point is that if we’re not talking about what a government has done or is doing, or is likely to do, we’re talking nonsense.
You keep saying I’m not making a case for a written constitution. That’s why I said you had missed my point, which does make such a case. I didn’t expect you to agree with me, but please stop saying I’m not making a case. Perhaps you think I’m only making a case if you agree with it?
I think having limits on what a government can do in terms of rights and freedoms is a good thing. We are faced with a government considering withdrawing from the ECHR so they can act oppressively.
You are presenting a case, but you have not made the case because you have not presented a convincing argument. You have failed to appreciate the risks attendant with a codified constitution. There is ample evidence of those.
Vague musings about what a government gone mad might do given the chance are not convincing against this backdrop. There is much that can go wrong when a consitution is codified and ossified. You can’t say that wouldn’t be worse.
“I think having limits on what a government can do in terms of rights and freedoms is a good thing. We are faced with a government considering withdrawing from the ECHR so they can act oppressively.”
With this statement you betray a fundamental misunderstanding, I’m afraid. It’s quite a popular misunderstanding which is perpetuated by a lot of the rhetoric complaining about the Miller judgements, among other things.
Government is not Parliament. Government is the executive, whereas Parliament is the legislative. Government is not supreme and it is limited in its power. The powers it exercises without Parliamentary approval come from the Royal Prerogative. These are residual powers of the Crown that have been gradually limited through statute.
Government arises from Parliament, but HMG does not make the law. Parliament as a whole must pass the legislation. A government with an 80 seat majority has repeatedly faced an uphill struggle when trying to behave contentiously. You have not made your case.
I understand the difference between Government and Parliament. This 80 seat majority Government has passed plenty of contentious Bills about protest, industrial action, policing, etc. Where have you been these past 4 years?
I don’t have to reference every instance, good and bad, to make my case. I only need to provide examples of the benefits in this discussion. If you disagree, then you can provide an opposite case. Kindly stop telling me how I should post here.
The reality of Parliamentary sovereignty has all but disappeared in modern times. Why did it take Gina Miller and the courts to do what Parliament failed to do? We need a new balance of power between Government, Parliament and the courts to stop government sovereignty becoming ever stronger.
Taking so long is not the issue. The courts vindicated Parliamentary sovereignty against a government that sought to conflate HMG with Parliament.
The balance is there and the balance works, no matter how long it takes. It did not take long to reverse the unlawful prorogation of Parliament.
And honestly, how long do you expect litigation to take? And how would that path be any shorter with a written constitution? The courts are always going to be the arbiter.
If it seems that Parliamentary sovereignty has disappeared, it’s only because of an ignorant and disinterested electorate. Another problem not solved by a written constitution. We’re dealing with the scourge of populism, which is a problem with all modern democracies right now to varying degrees.
“Why did it take Gina Miller and the courts to do what Parliament failed to do?”
Actually, this question deserves a direct answer. The reason it took Gina Miller et al and the courts so much time and effort to do what, as you rightly say, Parliament failed to do is that Parliament was as sharply divided as the electorate.
Parliament could not agree on the withdrawal terms because MPs represented diverse interests and they served them. This is the essence of representative democracy. Many decent Tory MPs put their careers on the line for the national interest. These people are my heroes.
Then Johnson tried to sidestep the paralyzed Parliament and was defeated. After his defeat, the only option left was to force an election, which he could and should have done previously.
He did that and then he won with a large majority. Brexit happened. Even though the voters were lied to, you can’t say that wasn’t democratic. We need to be able to see through lies. Blame the opposition.
But even with that large majority, he failed to achieve the bulk of his agenda and was eventually removed. Brexit happened not because our constitution is not codified. It happened because we forgot that the will of the people is vested in our representatives and not some non-binding referendum. Let’s agree never to do that again.
Article 16
Toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de Constitution.
The key thing to remember is, as DAG points out, that the people writing a new constitution will be working for the executive. A new, codified constitution is much more likely than not to reduce rather than increase those safeguards that liberal people will want to see in it.
That is one of the reasons why successful and long-lasting constitutions tend to be set up when a new country is constituted (as in the USA or Ireland) or after a civil war (England – where settlement after the defeat of James II is v much constitutional) or after a foreign invader retires (eg Germany or Japan post WW2). Countries writing new constitutions in more normal times almost always get it wrong – eg France has been changing its constitution from the Revolution onwards.
On the other hand, there is a lot in the UK constitution that needs fixing. Like our voting system, our devolution of powers to subsidiary entities whether in local or national governments, and the ability of governments to use prerogative powers to avoid scrutiny. But perhaps these things need to be fixed one thing at a time, rather than needing a grand constitutional review to fix everything at once.
Couldn’t agree more. The great example is the Weimar Constitution, written in the wake of the 1914-18 war and the Kaiser’s abdication. A huge shift from a monarchist state with the monarch closely involved in state decision-making, to a ‘modern’ and ‘liberal’ democracy. Great ideals.
But Article 48, which allowed for emergency powers, was invoked repeatedly in the years preceding the National Socialists’ seizure of power .. invoked first by Ebert’s Social Democrat party, and only later by Hindenburg and his cabinet of conservatives who assumed they could keep extremists like the NSDAP in check. It meant that when the Enabling Act finally came in 1933, the ground was well prepared (‘the ground’ being the German people’s assumptions about how politics naturally worked).
So any written constitution in the UK would have to command a degree at least of support among the electorate and the sad fact is that the window has already shifted such that the exercise of discretionary power by the Executive now goes pretty much unremarked.
The liberal backstop in the modern German constitution, the Constitutional Court in Karlsruhe .. it’s hard to imagine how something like that could be established in the UK. That was part of a process of reconstruction of the German state imposed by outsiders after defeat in 1945, and there are no such ‘umpires’ on the UK horizon.
It will be interesting to see whether Trump is disqualified from standing for President again under section 3 of the 14th amendment to the US Constitution!
“..Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative…”
The EU learned a very bitter lesson in/around 2002 with the publication of the EU constitution. And, a referendum on it in 2005. Subsequently the constitution became a ‘treaty ‘ & with a bit of watering down & tweaks it became the Lisbon Treaty. Oh, the irony – just rename & re-package.
It was, depending on your view point, a coc*-up of spectacular proportions. The Dutch & French electorates both repudiated it.
Now, I’m conscious that an EU constitution isn’t quite the same thing as a national constitution, yet the lessons learned could be interesting in an country trying to formalise any non written or non codified constitution.
“The prime minister, Tony Blair, was confident fellow European leaders would accept it was impossible to carry on in the wake of such an emphatic dual rejection. However, he acknowledged that it could take time for Mr Chirac to concede the constitution was dead…”
Looking at various texts it would seem that getting agreement, in an advanced democracy on what a written constitution should comprise is an extremely difficult undertaking – how would a written be decided? – who would decide/how is it ratified?
I can, to an extent, understand why leaders of any country might want an agreed written constitution – but the legitimate ratification of such an exercise is very difficult to implement.
Depends on what kind of legitimacy you’re after.
In Westminster constitutional theory, all power flows from the Crown. The crown exercises its power through parliament, through the courts, etc. The crown could exercise its power to adopt a constitution for the UK which would henceforth regulate in a documented fashion the future exercise of the crown’s powers. The exercise of power to adopt the constitution would be via Parliament, but Parliament could if it wished make the effectiveness of the constitution conditional on e.g. endorsement in a referendum.
Could the constitution limit the powers of the Crown-in-Parliament, which are currently unlimited? In principle, there is no reason why not; the powers of the crown have been permanently limited before, e.g. in the settlement that followed the Glorious Revolution. There’s no reason why the powers of the Crown-in-Parliament can’t be similarly limited. So the Constitution could say, e.g., that Parliament can’t validly enact a law that is inconsistent with the Constitution so that, if it wishes to achieve some outcome not permitted by the Constitution, it must first secure the amendment of the Constitution, (which might require a referendum, or the involvement of bodies other than Parliament, or some other requirement beyond a simple parliamentary majority).
But there’s another approach, which is to seek a new source of legitimacy, to which the crown would be subordinated. The people could, by referendum, enact a Constitution by the exercise of their own democratic authority. (This is how the Irish constitution of 1937 was enacted.) They wouldn’t be exercising, or claiming to exercise, any authority conferred upon or delegated to them by the crown; they’d simply be asserting their own powers as the proper source of all authority in a democratic state. Such a constitution would provide for the status and powers of the crown. In this scenario, the constitution would not derive its efficacy from the crown; rather, the crown would henceforth derive its efficacy from the constitution and, ultimately, from the people.
This would be, technically, a revolutionary act, but it would be a peaceful and bloodless revolution. A constitution enacted in this way wouldn’t have the legitimacy of being an exercise of the authority of the crown, but it would have a fundamental democratic legitimacy, which might be more important.
A constitution affecting 28 member nations, joined by treaty, is 28 times more complex to achieve than one for a single nation. Just because something is very difficult to do is not a reason not to do it. Reducing the damage we do to our atmosphere is vastly more difficult than the Lisbon Treaty but we must try.
Our constitution is much too important a matter to be left to a few specialist legal experts.
I, as a non-lawyer, want to know what our constitution says, how it gets changed and what mechanism there is to keep it up-to-date. I don’t think this can be done without it being written in an accessible way.
I would favour the establishment of a standing commission that would be set up to gradually codify our current constitution and recommend how it should be changed.
Unfortunately the two party system and the present state of political polarisation means that this isn’t going to happen, so we are stuck with the status quo.
Let’s move on and discuss political and legal changes that are feasible as well as desirable.
Have to say this has been a fascinating read/blog.
John Lambert elegantly sums up the conundrum that other commentators hint at and that is it is ‘our constitution’ – a constitution, especially a *written one has to be for all of the people for all of the time – liberal, ‘illiberal’, autocratic, meritocratic and all/anything in between.
This is pretty much an impossible task.
We’re not like the US , then an ab initio state, we are not like the Germans having it imposed on us by conquering power – we are, unfortunately a mature ‘democratic’ power with all the contradictions , history, culture and lore’s that go with it.
* the real challenge remains – who writes a written constitution it from what optic? ( liberal? illiberal? clerisey?, judicial?)
Importantantly, per the EU bitter lesson – who ratifies it ? how often is it ratified?
Should it be even called a constitution or a treaty between its own people’s?
I suspect what will happen is that with consummate constructive ambiguity we, the UK will bimble or bumble on ( as do most countries**) with an unwritten constitution.
It’s much easier for everyone in the long run.
** it’s my experience that very few countries have a mission or vision other than to survive & flourish – the UK like most countries doesn’t have a destination and this helps differentiate the nation state ( with all its foibles) from an artificial supranational constructs and their need for ever changing treaties & control mechanisms of their peoples.
You propose a solution which would, very slowly, set the current system in stone, then conclude it couldn’t be done so we’d be better off not doing anything at all. You should be a politician. ;)
I wasn’t a politician, just a senior civil servant!
But the serious point I was trying to make was that constitutional reform would only be possible if one, and probably both, of the main parties were to sign up to it.
Illiberal constitutionalists have a habit of appealing to the “patria politeia” or “mos maiorum”. Sulla (Lucius Cornelius Sulla – hence Lex Cornelius) was dictator ad rempublicam restituendam – dictator to restore the republic, which was an illiberal programme.
I think the question of what type of a constitution one prefers — codified or not — is a wholly separate subject to the question of what to do with people who aim to establish a non-democratic rule with their “constitutional reforms”.
As to have a constitution is, by itself, quite meaningless — the devil, as always, is in the detail. Exhibit 1: North-Korea has a constitution, not a very good one for its people, but quite an excellent one for the Kim family.
It is the quality of the various components making up the (nation’s) constitutional arrangements: the law itself, the way it is administered, the quality of the administrators, and that of the lawmakers with the power to change them, that will determine the overall functioning of said constitution. And, I suppose, the functioning of the society at large.
Now, I do not know where, or what even, the best constitution is, or should be. Nor do I know if such thing is possible, as law, like life, is an ever evolving concept.
In the meanwhile I settle for as much of fairness, equality, and freedom as we can get. As a Finn, and EU citizen, who lives in the Netherlands, I cannot complain too loudly, although I have the right.
Many don’t.
Kevin Hall 29 August states:
“Only an appeal to the ECtHR might succeed. A written constitution would provide a framework of principles Parliament could not exceed by statute…”
Unwittingly or not, Kevin elegantly makes a case for the UK not wishing to partake in the ECtHR.
Matt Flaherty has accurately described the UK as a Parliamentary Sovereignty where we the people have delegated power to Parliament ( both MPs & HoL).
Parliament if it is Sovereign cannot therefore outsource or delegate this power to an external foreign body even if it wanted to – it would, at a stroke obviate the very concept of Parliamentary Sovereignty whether we had a written constitution or not.
What has happened over the decades, is that the Strasbourg based Court has tried to extend ( and reinterpret) its powers outside of the original human rights issues of 1959.
One could quite easily argue that the ECrtHR has either outplayed itself & that nation states ought to look after their own Human Rights. Clearly this happens in most of the RoW with Europe being in the minority.
In the current climate in the UK, we oughtn’t be handing ammunition to detractors of the ECrtHR on a plate.
Parliament (or to be more accurate the House of Commons) has already delegated to government the power that the electorate has (you suggested) delegated to it. It didn’t seek our explicit agreement to do this, though I suspect you might want to say that we implicitly did this at the last General Election.
I have never in this country seen a government that gave a fig for citizens’ human rights. The mere fact that some in government want us to withdraw from either the Convention or the Court should be anathema to everyone who regards human rights as more important than what nationalists call sovereignty.
The ECtHR has no power to change our laws. Neither it not the convention are sources of legislation. The European Court of Justice did have that power, since EU law had primacy over domestic legislation.
The Human Rights Act allows judges to issue a declaration of incompatibility if a domestic law cannot be read down. It’s then left to Parliament to either correct the incompatibility or do nothing. We showed that we can get away with doing nothing when we failed to change in response to Hirst.
The notion that an appeal to the ECtHR could provide a remedy against an Act of Parliament is unrealistic, bordering on absurd. A ruling against the United Kingdom does not necessitate a change in the law, though we always used to try to be compatible.
John, I am doing no such thing, unwittingly or otherwise. I used it as an example of how an illiberal government might be stopped from being illiberal in the current situaiton.
It might suit your attitude to withdraw from the ECHR but it is a very illiberal thing to do. Do you not believe in universal human rights? Do you think a British Government should be able to ignore such a charter if it suits it’s political ends? It certainly sounds like it. You can’t pick and choose like that when it comes to legality or human rights.
Do you realise that the Good Friday Agreement relies on our recognition of the ECHR, and withdrawal from it (to join those great bastions of freedom Russia and Belarus) would endanger peace in Northern Ireland?
Please give some examples of this expansion and reinterpretation. All I can remember are judgements based upon the Charter that the British Government didn’t like and chose to resist or ignore.
It seems to me those of an illiberal persuasion don’t like the idea of human rights applying equally to all and wish to prevent them from applying to those they don’t agree with. For example Braverman insists that we must withdraw from the ECHR so Rwanda deportations can take place. She claims this will stop the small boats. She must know it would do know such thing. Traffickers are not going to care what happens to their clients and refugees will take their chances as traffickers are their only way out. There are better ways to stop the boats (opening legal asylum routes). It suits her and the Conservative Party to keep the small boats issue going as they see it as a vote winner.
“..Do you not believe in universal human rights?..”
Unless and until we have a global government, which to be fair is likely to be many decades away,if at all, then the likelihood of ‘universal ‘ human rights isn’t going to happen.
Makes you wonder how or why Human Rights are dealt with in the RoW given how relatively small EU/Europe is.
The challenge that European liberals ( & illiberals) have is the conceit that what happens in Europe/EU is best suited to/for the RoW. It’s unprovable.
The siren voices often talk of NIA/Belfast Agreement and the compatibility with the ECtHR – let’s test it & see.
Treaties are constantly amended to accomodate new events in the human timeline – nothing lasts forever.
I’m not referring to global government, just UK government. Do you think this country should apply human rights equally to every person in it, citizen or non-citizen?
The ECHR is explicitly referenced in the GFA. It must apply. It does not need testing.
What happens depends much more upon what is the practical balance of power at any moment. This is much more important than whether there is a written constitution. Whoever is in power will generally try to do whatever is expedient to reinforce and perpetuate their power. This can only impeded by checks and balances that exist from other sources of power that are sufficiently entrenched they cannot be diminished. (An interesting article in The Economist of 12 Aug on the practical power of hobby groups in Britain – grouse-shooters, real ale fans, etc.)
Over recent times, Westminster has reinforced its power. It has turned local councils into executives doing what they are told and with very little discretion – they don’t even have enough money to do what they are legally required to do. Then the check of the EU has been thrown out with Brexit. The only thing the recent government failed to do was entrench the Tories in power. And that is due to infighting, which tends to happen when you get a powerful executive. But the Tories know that the demographic and electoral system tends to favour them in the long term.
If, as currently seems likely, the Tories are trounced at the next election, the only reason Labour would have to redistribute power and recreate those checks is if it thinks that is better in the long term than losing to the Tories before very long, which will likely happen. But are they wise enough to think like that? And are they canny enough to devise durable sources of countervailing power – that’s not easy. Which is why so many countries sink back into authoritarianism after a period of more distributed power.
A historical approach to this type of analysis is set out in the classic book Why Nations Fail by Acemoglu & Robinson.
Much comment on a tricky subject.
Seems to me an entrenched power is unlikely to concoct a liberal (aka pleasant for plebs) constitution. Such would involve sharing out power and wealth. Don’t upset the status quo unless you are arm twisted into it. Such an arm has almost to be twisted right off and hanging by a thread before anything will yield.
I think revolution does have a small but useful place in keeping democracy healthy. A kind of sawtooth graph of increasing frustration building up over maybe 200 to 300 years – then bam. I once had a nice chat with a Frenchwoman who’s eyes lit up when she said ‘we cut the head of the king’, she was so proud, so emotional.
The best time to write a constitution may be while the carpets are still damp from having blood washed from them and the bullet pocked walls have only just been patched up and the cemeteries not quite newly grassed. At that stage the anger may have tempered the victors and the vanquished enough (unless the wrong lot won) and something more like a constitution may emerge – we hope.
The UK may prove to have been unlucky to have avoided the revolutions of the 18th and 19th centuries. Our establishment was able to stand back and say ‘none of that foreign nonsense here’, we’re British. And set up the institutions that make revolution too difficult. Too safe and secure ever to change. We are unlikely to have a revolution but might usefully benefit from one – and I do have a little list….