A vital measure to stabilise Britain's governance—or an unnecessary addition to politics that would do more harm than good? Our contributors debateby S. Douglas-Scott and A. Tomkins / April 2, 2019 / Leave a comment
Yes: Sionaidh Douglas-Scott
Yes, if by “proper” we mean codified, with some provisions “entrenched” so they are harder to change. Britain is one of a tiny handful of states in the world to lack a codified constitution. Nothing wrong with being an outlier some might say, and why change a system that has served for several hundred years? The reason is that Britain’s constitution no longer functions adequately today.
Brexit has illustrated this very effectively. Should it be so easy to change a constitutional fundamental (EU membership) on the basis of an advisory referendum whose result commanded the support of less than 50 per cent of the franchise? A written constitution could contain provisions making its amendment subject to rigorous requirements.
Do we have parliamentary sovereignty—supposedly a bedrock of Britain’s historic constitution—or government sovereignty? It often seems to be the latter, not least because our “constitutional requirements” were so unclear that the government had to be taken to the Supreme Court to prevent it starting the EU exit process without parliament’s consent.
Without entrenchment, human rights have a precarious status in Britain because any human rights legislation could be repealed by a bare majority of one in parliament. Only a codified constitution could provide a guarantee against that.
The prime minister may speak of “our precious union,” yet the role of the devolved nations in the Brexit negotiations has been minimal. They lack sufficient legal provisions to protect their powers (as might, by contrast, exist in a federal constitutional system), and Scotland’s vote to remain in the EU and refusal to consent to Brexit legislation were ignored by a centralist UK government. As a result, we risk the breakup of the UK.
We need to codify our constitution to make it fit for today—to clarify its many obscurities, and to ensure the protection of rights both of UK individuals and its nations.
No: Adam Tomkins
Britain has no need of a written constitution and, worse, for us to adopt one would do more harm than good.
A good constitution balances and shares power. If power is concentrated or overly centralised, that is a sign of a weak constitution. Where power is disbursed effectively, that’s a good thing, from a constitutional perspective. Brexit has, for the most part, illustrated that our constitution is working well.
The 2016 referendum required an Act of Parliament; its result led to the government triggering Article 50; and the Supreme Court ruled that this required fresh, bespoke legislative authority. The Brexit process has therefore brought all three branches of the state into play. Under our constitutional arrangements, Brexit cannot be delivered by one branch alone—the power (and responsibility) of delivering Brexit has been disbursed.
At the same time, Brexit has revealed unresolved tensions in the constitution. But a written constitution would not resolve them. The most striking is the status of referendums. Is a referendum decision binding? If so, on whom? On the government, or also somehow on parliament and on the courts? I would be in favour of clarifying the answers to these questions, but that requires legislation, not the codification of the constitution.
Written constitutions dramatically increase the role (and therefore the power) of the courts. Our courts are already powerful, but there are still a number of constitutional questions that are left to our political institutions. It is a rule of the constitution, for example, that Westminster will not normally legislate on matters relating to devolved parliaments in Scotland, Wales and Northern Ireland without their consent. But this is a rule of political behaviour, not a rule of law for the courts.
This is as it should be. Just as there is a good balance between legislature, executive and judiciary, so too is there a delicate balance in our constitution between law and politics; codifying the constitution would upset that balance in favour of the unelected—that is, in favour of the judges—and that is not in the democratic interest.
I agree that a good constitution balances and shares power. But I do not agree that the British constitution does this, nor that Brexit illustrates that the constitution is working well.
In the absence of a codified constitution, the division of powers is very unclear in Britain. The Supreme Court became involved in Brexit because of the government’s reliance on the royal prerogative, a historical hangover which is a vast, vaguely defined area of executive power at the government’s disposal.
Further, Brexit has shown power to be very centralised, the sign of a weak constitution, in your words. Although there has been devolution to Scotland, Wales and Northern Ireland, this has not equated with greater power sharing. These devolved nations have limited input over UK-wide policy, even where it has a serious impact on their future, as with Brexit. There is no effective shared rule as in federal states.
A written constitution need not increase judicial power. This may be the case in the US, but written constitutions take many forms, and fundamental constitutional provisions can be protected by requiring super-majorities in parliament rather than judicial review. But most constitutions today, as well as sharing and balancing power, protect human rights, which must sometimes be enforced against what is deemed the “democratic interest.” This is especially so with Britain’s “first past the post system,” where legislation prejudicing minority groups could be passed by parliamentary votes not even representing a majority of the electorate. The threats to EU citizens after Brexit, or to the Windrush generation, come to mind. The possibility of judicial review would then be a positive feature, imposing a check on an overreaching government.
A written constitution safeguards fundamental provisions from change on a whim, or on passing partisan interests. At present, parliamentary sovereignty excludes the possibility of constitutional entrenchment—subsequent legislation can always override earlier legislation. It is a virtue of a codified constitution that it would instead make some matters much harder to change.
On the contrary, the division of powers is normally very clear in Britain. We know what the government, parliament and the courts are each for and we don’t need a written constitution to tell us. The Supreme Court got involved in the Brexit process because there was legal uncertainty about how the referendum result should be translated into government action. Its verdict strengthened the division of powers in the British constitution.
Likewise the distribution of powers between Westminster and the devolved parliaments. Brexit is a question mainly for London not because the UK is overly centralised, but because the UK’s international relations, including our relations with the EU, are reserved to Westminster—just as they would be under any federal constitution.
You are right that today’s constitutions, as well as sharing and balancing power, protect human rights—but the unwritten British constitution does this in multiple ways. First through legislation. The franchise was repeatedly extended, from 1832 to 1928, by legislation. Likewise abortion and same-sex marriage. In Britain these are questions of law determined by parliament. Secondly, rights are protected by the common law. The principle of legality, whereby the courts will rule that ministers may not use statutory powers to diminish our rights unless parliament has said so explicitly, is an example of how the common law has taken rights-protection seriously in recent years. Habeas corpus is a much older example. On top of all of this we have the Human Rights Act 1998.
Through all these instruments and means the British constitution protects rights, both ancient and modern, again underscoring the point that we don’t need a written constitution to do any of this for us.
The fundamental problem is that, absent codification, we fall back on unenforceable conventions, murky prerogatives. This does not suggest a clear division of powers. Sidney Low said in 1904: “We live under a system of tacit understandings. But the understandings themselves are not always understood.”
Low’s comment remains true today. For example, it is uncertain if the government can authorise armed combat without parliament’s approval. Moreover, the devolution settlement is nebulous just when clarity is needed. The UK government treated Scotland’s and Northern Ireland’s vote to remain in the EU as of no constitutional relevance, and pressed ahead with its withdrawal legislation without the Scottish parliament’s consent. This despite a 2016 statute enshrining in legislation the Sewel Convention—which ensures Westminster will not “normally” proceed without consent. This illustrates that legislation alone affords little constitutional protection.
Yes, we have human rights laws. But without effective entrenchment, these rights cannot be protected against repeal. The EU Withdrawal Act excludes the EU Charter of Fundamental Rights from future UK law. The Conservatives already tried to repeal the Human Rights Act, and their 2017 manifesto pledged to retry “when the process of leaving the EU concludes.”
As it stands, our constitution subsists in an eternal present—all provisions, however valuable, are vulnerable to repeal. There is no special protection for human rights, or the rule of law. Instead, they are exposed to change and reform on a whim. You categorise Brexit as within “the UK’s international relations.” But Brexit is not a straightforward matter of international relations. EU law is a large part of our domestic law, a major reason why Brexit has been so difficult to carry out. Constitutions are not miracle workers. Even a “proper” constitution might not resolve the tortures of Brexit. But it could ensure that we do not lose everything valuable in the process.
The fundamental flaw in your position is the assumption that entrenchment is a good thing. Have the constitutionally entrenched views of 18th-century slave-owning American men served the modern United States well in terms of gun control, the commerce clause, or the power to use military force? We agreed above that good constitutions disburse power. Successful constitutions do something else, as well: they hold the forces of continuity and change in balance.
Codifying a constitution freezes that balance according to the prejudices of a particular moment, whereas the unwritten British constitution continues to adapt to the changing needs of the nation. This does not mean that our constitution lacks fundamentals or binding principles. We have enjoyed the rule of law, parliamentary sovereignty, habeas -corpus, the accountability of the government to parliament, and the protections of the common law—unbroken—for centuries.
Codified constitutions pass power from the elected to the unelected—principally to the judges whose job it is to interpret the written constitution. This is a profound challenge to democracy. Too many people in Britain already consider that government is something that happens to them—a written constitution would serve only to make that problem worse, as power drags ever further away from the people and their representatives in parliament.
Who are we to freeze our prejudices in entrenched law and to bind future generations to obey us? I love the British constitution. I love its secure adherence to ancient principles. And I love its endless ability to adapt those principles to new needs and circumstances. Long may its progress continue, unhindered by lawyers and their strange desire to write everything down.