A constitutional moment? Former justice of the UK Supreme Court Jonathan Sumption and former judge of the South African Constitutional Court Kate O’Regan. Photography for Prospect by Paul Black

Jonathan Sumption and Kate O’Regan on whether Britain needs a written constitution

The notion that Britain is run by “good chaps” was tested to destruction by Boris Johnson. We asked two eminent former judges whether it’s time to entrench the rules of politics in one inviolable document

Alan Rusbridger: So I suppose a useful starting point is to say that the Johnson government really made the case for a written constitution. If Boris Johnson hasn’t, then nothing will.

Jonathan Sumption: I don’t dispute that politicians have been behaving badly, and the more senior the politicians, the worse they’ve been behaving. I just don’t think that a written constitution is a solution. The British constitution undoubtedly depends to a high degree on conventional standards of behaviour, which have been broken in the past couple of years. But all constitutions, even the most formal, have that in common.

It is very striking that the two countries in which confidence in politics has declined most spectacularly in the last decade are this country and the United States. We have a wholly political constitution, while the US is the extreme example of a formal constitution, judicially supervised. Did that impede Donald Trump? It did not. Some of the more outrageous things that he did were perfectly legal. The world is full of countries where constitutions have been subverted by political misbehaviour, entirely legally: Russia, Peru, Brazil, Turkey. The list gets longer every year.

Kate O’Regan: I agree with Jonathan that written constitutions aren’t a panacea. There is no such thing as a fully written constitution that is not dependent on the political culture to some extent to determine whether it works. And I also think that it’s a very difficult question, whether the UK could get to a written constitution sensibly at this particular moment in its history. But I don’t think that the US is the best example of a written constitution, and it shouldn’t serve as our point of departure for assessing the capacity of written constitutions. I think there are examples where written constitutions have made a significant difference to the quality of politics in a society. You can’t simply say “unwritten constitution is good and written constitution is bad.”

Every constitution has some written elements, sometimes much more obvious in big-C constitutions like the US constitution or the South African constitution, but even in the UK we have documents like the Bill of Rights 1689, the Parliament Act 1911. All constitutions are partly written and partly unwritten.

Alan: When we think of the last two years, the cry has gone up: “We’re in such a mess because none of this is written down.” The threat to the Union, the disobedience towards treaties, questions of privileges and standards. Kate, can you think of where those individual crises would’ve been helped by having a document that one could have turned to?

Kate: There are many examples where bad conduct has not been prevented by a written constitution. I think my greatest concern is not so much a particular example, as the ease with which quite fundamental elements of the constitutional framework can be changed almost without being seen. And although that can happen in written constitutional environments, there are definitely parts of a written constitution that you can’t change without being seen very ­obviously.

And if one looks at the global picture of populism, and particularly destructive populism, one of the main ways of changing constitutions is to change small things in the constitution—sometimes by constitutional amendment, perhaps by changing the rules of appointments to courts—which are aimed at reducing the checks on the executive. And I think that there are times when written constitutions can make that harder to do, but they are absolutely not a failsafe.

Alan: Jonathan?

Jonathan: I think that Kate has put her finger on the essential difference between us, which is about entrenchment. We can introduce any of the rules which she and I would both regard as desirable by ordinary legislation without a written constitution. The reason the advocates of a written constitution say that isn’t good enough is that it’s not entrenched. It can be repealed or amended by a single vote in each house of parliament.

It is true that our informal constitution sometimes achieves change by accident. I am not however persuaded that we would do it any better if we did it on purpose. In some respects, we would probably do it worse.

The problem is that if you devise rules and confer on them constitutional ­status—in other words, make them unmodifiable except by some special procedure like a super majority or a referendum—you rigidify the constitution and deprive it of the ability to adapt to changing circumstances and changing values. You also fortify essentially conservative vested interests. Just look at the power of the gun lobby in the US.

Alex Dean: So do you think the US serves as an instructive example?

Jonathan: I hear Kate’s warning about the United States. Unlike her, I do think the United States is the most instructive model. It is the oldest codified constitution in the world. It has been a powerful influence on almost every other formal constitution in the world. The US has a duration and depth of constitutional experience which it would be foolish of us not to learn from.

The articles of the US constitution remain in force until the crack of doom. The Supreme Court’s interpretations of the constitution remain the law until the crack of doom. Unless—which has hardly ever been possible for a controversial measure—you can get two thirds of both houses of Congress and three quarters of the states to agree. That is a very serious situation. Many of the Supreme Court’s decisions about gerrymandering, campaign expense and other aspects of American electoral law are now written into the constitution in a way that prevents change.

You could choose any number of other constitutions that illustrate the same point. I think that Spain has handled Catalan nationalism much worse than we have handled Scottish nationalism. One reason for that is that the Spanish judiciary has an independent power to enforce the constitution, and the Spanish constitution, like all constitutions, is hard to amend. So the flexibility which enabled us to compromise to some degree with the Scottish nationalists after 2014 simply wasn’t available in Spain.

Look at our own history. The Fixed-term Parliaments Act, which required a supermajority to have an early general election, turned out to be a disaster at the end of 2019. Suppose we had had a written constitution drafted in 2011. The Fixed-term Parliaments Act would no doubt had been written into it, and it would have been virtually unamendable. We would never have got out of the constitutional mess that we were in.

Jonathan Sumption: If I lived in a new country which was just starting out, I might be in favour of a written constitution

Kate: I do think that this is the most difficult part of designing any constitutional framework. The reason I think the United States is not a good example of written constitutions is because it is effectively unamendable. Most people recognise that you need some special procedures for amendment, which may or may not include a supermajority, but that you do not ever want to render your constitution unamendable because, as Jonathan says, you need to have the ability for the constitutional framework to flex in the light of changing circumstances. And I think a lot of the difficulties that we are seeing in the United States arise from the fact that it is more or less impossible to amend that constitution.

Alex: I’d be interested to know some places where you think having a written constitution has helped.

Kate: I think there’s relatively little doubt that the South African constitution has played an important role. New as it is, certainly compared to the constitution of the United States, it has played an important role in ensuring that government is at least to some extent held to account. We’ve had a series of events over the last decade in which those appointed to the highest executive offices, including the presidency, appear to have been involved in a pattern of corruption. There was a serious attempt to evade responsibility for this. Parliament, when asked to investigate one instance of state capture, decided that it did not agree with a report by the public protector [South Africa’s ­anti-corruption watchdog] and would ignore it.

That question then went before the constitutional court, which said it was not permissible for parliament to ignore the findings without having them set aside by a court. It was a very important moment in holding the president to account in circumstances where parliament did not have the appetite to do so. I think a lot of modern constitutional developments, all of which post-date the US constitution, have been attempts to try to work out how best to ensure executive accountability when political actors, including political parties, undermine it. In the South African example, the political party and its members in parliament failed to insist on accountability and independent institutions had to require it.

Jonathan: I think that, with one exception, all the advantages which Kate points to as being delivered by a written constitution can be delivered by ordinary legislation. The one exception, which is relevant to our position in the UK, is that the courts cannot, without a written constitution, review parliament. I agree that there are some circumstances where that would be useful. But it’s not a right that we can create without inviting a large number of other cases where it would be thoroughly objectionable, because it would cut across lines of democratic responsibility.

A good example of how an informal constitution can protect democratic norms is the prorogation case. It’s an example of government misbehaviour, but our system defeated it, because the Supreme Court engaged in one of the most profound examinations of the basis of parliamentary democracy in any country that I can think of. In fact this applies to both the Gina Miller cases taken together. Both were concerned with the same problem, namely government attempts to evade parliamentary scrutiny. They came up with an answer. That seems to me to be a vindication of the adaptability of our constitution and its ability to deal with precisely the kind of problems that Kate is concerned about.

Kate O’Regan: One of the great problems in the UK constitution is that the authority of the courts is nowhere clearly stated

Kate: I agree with Jonathan that the two Miller cases fundamentally supported the proper constitutional role of parliament at a time when the executive was seeking to deprive it of that role. I also think that if we look at the pattern of democratic decay generally, the pattern across the globe is characterised by an increase in executive power and a decrease in its accountability. And I think both the Miller cases can be seen in the context of that big picture.

However, I think one of the great problems in the United Kingdom constitution is that the authority of courts is nowhere clearly stated. It does derive largely from common law and to some extent from the Bill of Rights, Magna Carta. The absence of a clear constitutional text confirming the authority of the courts renders them peculiarly vulnerable, I think, to attacks for somehow aggrandising their powers in circumstances when they do precisely what they ought to be doing. If you have a constitutional framework which says, as many written­ constitutions do, that courts must uphold the constitution and must declare legislation or the conduct of the president to be invalid where it’s inconsistent with the constitution, the courts’ mandate is indisputable.

And if you look at what has happened in the aftermath of the two Miller cases—and we could start with the notorious “Enemies of the People” headline in the Daily Mail—it has been difficult, I think, for judges to stand clearly on the legitimacy of what they were doing. In fact, there are many people launching pretty scurrilous attacks on the courts in my view.

I am never going to say that that’s going to be avoided, because we of course see it in circumstances with written constitutions. But for judges themselves, having the confidence to say that something is indeed their mandate is important. I do not want to suggest that this is indisputably better, but I do think we should see that the vulnerability of the constitutional position of the courts in the UK is to some extent underpinned by the absence of a clear statement of their constitutional authority.

Alex: Jonathan, if the next government started pushing through measures that were even more objectionable and even more adverse to scrutiny, and in the most extreme scenario legislated to abolish judicial review, for example, would that then make a case for a written ­constitution?

Jonathan: Well, for a start, I don’t accept Kate’s suggestion that the judiciary in this country is in a perilous position. I was party to the first of the Miller decisions and had absolutely no concerns whatever about my ability or willingness to form a view independent of any public pressure. And if judges were vulnerable to such pressures, I don’t accept that a constitution saying that the judiciary shall be independent would make them in practice any less vulnerable.

If I lived in a country which had no political, constitutional or legal traditions, a new country which was just starting out, I might well be in favour of a written constitution. So I’m not saying all written constitutions are bad. But the godfathers of written constitutions are war, invasion, revolution, secession and decolonisation. In other words, events which entirely destroy some previous constitutional order.

Britain is almost unique across the world in never having experienced any of these disasters since the 17th century. We have therefore been able, without altering our constitution in any significant respect, to withstand a number of major cultural changes: the decline of the monarchy, the onset of democracy, the onset of industrialisation, the acquisition and loss of a global empire and the joining and then departure from the EU, for example, all of which would have imposed intolerable strains on more formal arrangements.

Kate: I do agree with Jonathan that in most circumstances fundamental constitutional change comes about in moments of crisis. And one of the reasons for that is that there needs to be a sense across the political community that there needs to be a change. And that is a great driver of constitution-making.

And it is also true that in some ways the United Kingdom has been fortunate to avoid severe moments of that kind over the last 250 years, although we might say that there were moments when it came quite close.

One of the things that we haven’t talked about up to now, which I think is important, is that the process of constitution-making can be an extremely positive exercise in building a common sense of what a society is. I do realise that it’s an important political judgment as to when that moment can occur. Look at Pierre Trudeau in Canada in the 1980s, with the repatriation of their constitution [which transferred ultimate sovereignty from the UK parliament back to Canada]. That has worked out extremely well. It took, I think, a brilliant politician to realise that this was going to be an important moment, and it wasn’t in a time of violence or war, although Canada was somewhat under the threat of secession from Quebec. At the same time Trudeau introduced one of the most successful rights charters of the last 30 or 40 years. So there are moments when you can make what was—and what is—in fact a somewhat divided and at-risk political community a stronger one.

Kate O’Regan: There is no moment of finality in a constitutional democracy

Alex: But even if we wanted to have a written constitution, parliament right now can repeal anything with a majority of one. So how do we entrench? What does a constitutional moment actually look like?

Jonathan: I think there’s a conceptual problem about how you do this. Those who advocate a written constitution generally propose that parliament would dissolve itself. It would cease to exist by legislation under the old constitution, and the new constitution would then take over from a blank sheet of paper. I think that that would probably work, but the process illustrates the radical surgery that would be necessary in order to achieve what seems to me to be a fairly marginal advantage.

Alan: Jonathan, when you woke up to headlines that the Johnson government was thinking of withdrawing from the European Convention on Human Rights because it disagreed with one judgment, did that not make you feel anxious?

Jonathan: I think it would be ridiculous to leave the ECHR on a single issue like immigration, and even more ridiculous to do it as a response to the decision of a single judge of the court in Strasbourg. But there is a serious problem about the human rights convention. Every single right protected by the European Convention is capable of being protected by ordinary English, domestic legislation. We can have whatever rights we want if there is a democratic mandate for them. But the Convention converts a number of contentious political issues into legal issues, thereby transferring them to the courts and disabling electorates from deciding them. I cannot reconcile that with any kind of democracy.

Kate: So the premise of Jonathan’s response is that we have a functional process of democracy, which accurately provides the views of people, and that we can then be sure that, in fact, whatever parliament decides is indeed genuinely democratic. The great difficulty with that premise is that majoritarian parliaments can use their power in one way or another to skew the expression of political views. The strongest argument in the favour of the European Convention on Human Rights, but more importantly, I think, the power of judicial review over legislative decisionmaking, is to ensure that democratic decisionmaking is indeed validly protected, and that freedom of speech, freedom of association, the ways in which votes are cast and elections work, and so on, are protected.

Alan: Can I just ask you, turning to our relationship with the European Union, would it not have been useful to have rules about referendums written down somewhere?

Jonathan: We do have rules. There’s an act of parliament that determines how they will be conducted. What was wrong with the referendum of 2016 and also, as a matter of fact, with the Scottish referendum of two years earlier, was that it didn’t answer all the questions that would arise if the decision was to break with the past. There are many countries with constitutional provisions for referendums—examples are France and Switzerland. They almost always provide that, if you’re going to have a referendum, you have to have a draft law which will answer all the questions and will automatically come into force if it is approved in the referendum, so that it isn’t just the prelude to further argument and debate, as it was between 2016 and 2020. That’s the only way that referenda can work in conjunction with a parliamentary democracy. I imagine we will learn from experience—I certainly hope so.

Jonathan Sumption: We have been able, without altering our constitution, to withstand major cultural changes

Kate: I agree with Jonathan that the real difficulty of the 2016 referendum was the fact that, once the electorate had voted on it, it was not clear what the electorate had actually voted for.

I think one of the real difficulties for referendums is that they create the intuition that there are forms of direct democracy which somehow have a legitimacy which is beyond representative government. I think that’s an attractive intuition but a dangerous one, because in the modern world—frankly even in the Greek world—democracy without forms of representation is non-existent, and referendums are better understood as tools of representative government.

What happened in the United Kingdom was that there was a lack of clarity about what the result of the referendum required. And yet in the debate that arose there was—and this was the most alarming consequence of Brexit it seems for me, and it fed into the two Miller cases—the sense that somehow what parliamentarians, who were the representatives of the British people, would do with this result could in some way be deeply ­illegitimate.

That was a really dangerous moment, I think, for the British constitution, and I think Jonathan would share this view. What we all need to realise is that there is no way any country can be managed on a system of direct democracy. A referendum is always going to be a tool of representative democracy.

Jonathan: I agree with every word of that. I also think that referenda have a deplorable collateral consequence. The basic function of a parliamentary democracy is to accommodate opposing interests and opinions, often by compromise or fudge. Referenda, by avoiding that process, are enemies of compromise and therefore make it much more difficult to get widespread acceptance of the result. They create a sense of entitlement in the majority, which treats the views of the minority as completely irrelevant. That was the approach that was taken by the majority under the EU referendum: they basically said the 48 per cent don’t count because they were wrong. But that attitude is inconsistent with any successful functioning political community.

Kate: One thing I would add more broadly is that there is no moment of finality in a constitutional democracy. It is always in a sense at risk. It is a project effectively to try to manage our deep political disagreements in a way that stops us going to war with one another. That is really what a constitutional democracy is about. And it’s not surprising, then, that they always seem somewhat perilously perched on the edge of failure. But there are very ­significant moments I think you can point to, when written constitutions have prevented that failure and allowed the political project to continue for as long as it takes to get to the next perilous moment.