The case for an unwritten constitution gets rather short shrift from Professor Colley, who points out that between 1720 and 1820 there was something of a boom in written constitutions, and that persisted as unified new nations were constructed, such as Germany and Italy, or as former colonies became independent states. What she does not say is how many of those new written constitutions were abandoned, discarded or twisted into shapes their creators would not have recognised.
England’s unwritten constitution was built on a framework of particular constitutional events, like Magna Carta, the outcome of the Civil War, the 1701 Act of Settlement (which created a Protestant succession and a constitutional monarchy), the 1707 Act of Union (with Scotland) and the C19 and C20 legislation to extend the franchise to all adults, male and female. The great advantage of this unwritten constitution was its flexibility, its capacity to adapt to a fast changing world. Slavery was abolished in Great Britain by a single legislative act. Catholics were similarly emancipated. Good race relations and gender equality, admittedly still in the process of being fully realised, were established by a series of legislative steps. In some other parts of the world, including many with written constitutions, these issues have proved to be bitterly divisive.
Written constitutions often reveal characteristic weaknesses. A common weakness is the aspirational constitution. While Mikhail Gorbachev was General Secretary of the Communist Party of the Soviet Union between March 1990 and December 1991, a small team of constitutional advisers (of which I was one) worked in the Kremlin on a new Russian constitution. One of our hardest problems was persuading our Russian hosts that writing an aspiration into a constitution, such as the right to a job or to a dwelling, in no way guaranteed such rights actually being realised. Unmet aspirations are the seeds of cynicism and disillusion.
A second weakness lies in the interpretation of written constitutions. It is hard to believe that the wise founders of the United States, who wrote its elegant constitution, intended the second amendment, the right to bear arms, ratified in 1791, to enfranchise every adult to carry lethal arms everywhere he or she went, but that is where we are today. Nor could they have envisaged that the first amendment would today, following the extraordinary decisions of a highly politicised and polarised Supreme Court, allow American federal representatives to be bought and sold as if democracy was a market. *(see footnote)
However, Professor Colley makes one very powerful argument for a written constitution in the United Kingdom, one that flows from the consequences of the forthcoming referendum on Scottish independence. A Yes vote, removing an independent Scotland from the United Kingdom, will necessitate a new constitutional settlement, on borders, trade, finance, and the structure of a Union Parliament in which Scottish MPs no longer sit. A No vote will almost certainly lead to further devolution to the Union’s members.
In his brilliant speech of April 22, Gordon Brown, the former Prime Minister, referred to tax-raising powers for the Scottish Parliament, and to a UK constitutional framework built around a major devolution of powers in domestic legislation. The structure he outlined in his speech was close to a federal one. Determining what taxes should be raised at Union level, to match remaining powers at Union level, for instance in foreign affairs, defence, participation in international institutions and in the European Union, and what should be raised at national level, will demand a constitutional settlement which could, and perhaps should, be written down in law. But the track record of elected politicians in framing constitutional legislation is at least as good as the record of judges, perhaps because they are closer to the people.
*footnote: US Supreme Court: Citizens United 21 January, 2010; McCutcheon v FEC, 2 April, 2014