A constitutional reckoning
The idea that current events demonstrate the need in the UK for a written constitution is mistaken (“Crisis,” May). Moving to one is both unachievable and undesirable.
It is unachievable because the value of any new system can be decided only by reference to whether it would produce better results. No new process can really be impartial—it will inevitably make some decisions more likely than others; and no consensus will be attainable on which ones. After Brexit, would the written constitution we should have be the one that would have made it easier, or the one that would have made it easier to stop?
It is undesirable because it reduces political problems to arguments about the wording of a document framed before the problems arose, instead of the merits of the issues actually at stake. For this reason, it also necessarily involves a transfer of political influence from elected politicians to unaccountable judges.
The inevitably broad propositions of a written constitution would amount, in the words of the late John Griffith, to no more than the statement of political conflicts pretending to be their resolution.
Stephen Laws, former first parliamentary council and senior fellow on Policy Exchange’s judicial power project
Adam Tomkins (The Duel, May) believes that a protected constitution would give too much power to the courts. However, the ability of courts to strike down legislation can sometimes be an essential part of the system of checks and balances that prevents a democracy turning into an elective dictatorship.
Take, for example, the provisions in the Irish constitution on separation of powers, which the Irish courts have enforced by striking down legislation that delegated too much power to the executive. That is a protection the UK could well do with, on democratic grounds, in response to its own over-reaching executive.
The democratic case for entrenchment is even stronger if the constitutional protection upheld by the court is not effectively immutable (as in the US) but changeable by referendum after a process of popular debate (as it is in Ireland).
George Peretz QC, Monckton Chambers
Tweet of the month
“Does Britain need a written constitution? @Prospect_UK debates the question. Short answer: too complicated for a short answer. One thing worth noting: constitutions have a built-in resistance to their own change, something like the US two thirds majority hurdle”