While well-meaning people pursue the ideal codified document, the government is getting away with ever-greater constitutional trespassesby David Allen Green / November 10, 2020 / Leave a comment
Every time there is some new constitutional calamity in the United Kingdom, and they have been rather common in this era of Brexit and Dominic Cummings, a similarly common response from anyone progressive or liberal is to ritually demand a “written” constitution. And that is usually all that is said on the subject, as if such a demand is sufficient in itself as a reaction to what has gone wrong.
But this is misguided and indeed irresponsible for three reasons. First, a written constitution would not by itself lead to more liberal government. Many of the most repressive regimes in modern times have had written constitutions which, on paper, would seem exemplars of how fundamental rights and freedoms should be protected. Their peoples were tortured and their rights were generally violated all the same.
Second, there is no obvious or plausible way to get from where we are now to putting in place an entrenched constitution. This is best done on a blank slate. But the UK has not been invaded, the monarch has not been deposed, and there has not been a violent overthrow of power. There has been significant change over the last five years, but not the sort which would allow an entire political system to begin again.
And even if there were some plausible path towards an entrenched new constitution, the process would no doubt be hijacked by Whitehall so that the end result was a more powerful executive, not a weaker one. Any grand constitutional convention would be on the government’s terms and the UK would probably end up with a more illiberal set of constitutional arrangements than we have already.
But the third reason for avoiding a preoccupation with a written constitution is more basic. The preoccupation itself is part of the problem. The call for a written document is not really a way of thinking about constitutional improvements in the UK but of not thinking about them. And while well-meaning people distract themselves with the ideal of a codified constitution, the government is getting away with ever-greater constitutional trespasses. People are looking the other way.
This is not to say that there is not merit in having a written constitution. A single, portable and accessible document providing for the various functions of government, their…