Do we need a written Constitution?

by Dr Andrew Blick
Reader in Politics and Contemporary History at King’s College London; Senior Research Fellow at the Federal Trust

25th October 2019

Speech by Dr Andrew Blick at the joint Federal Trust/ Federal Union event “Never-Ending Brexit?” held on 8th October 2019

Caroline Lucas (Brighton, Pavilion) (Green)

While yesterday’s Supreme Court decision upholding parliamentary sovereignty was extremely welcome, it should never have come to this. Our centuries-old unwritten constitution, based on gentlemen’s agreements, is not fit for purpose when dangerous populists are in office. Will the Attorney General therefore consider urgent proposals for a written constitution, developed with real citizens’ engagement, since our democracy belongs to all of us, not just those who think they are above the law?

The Attorney General

I have a degree of sympathy with what the hon. Lady says. I think that, as we depart the European Union, there is ground for thinking again about our constitutional arrangements and how they should be ordered. I think that, in doing so, a widespread public consultation of the kind that she is describing would be essential, because any new constitutional arrangements would have to be sanctioned by the widest possible public support and assent, so I do have some sympathy. No doubt over the coming months and years, this will be a subject of important concern to the House.


This House of Commons exchange, dating from 25 September, shows that, out of the divisive chaos of the Brexit-era United Kingdom (UK), a strange consensus has begun to form. Various politicians and commentators have begun voicing the idea that, not only is the UK political system functioning at a less than optimal level, but that it might be time to instigate an inclusive process leading to a ‘written’ constitution. This emerging perception presents both opportunities and risks. The following paper discusses how such a document might be brought about for the UK, and its possible contents.

Brexit has created uncertainty about numerous features of the UK polity. It has broken the existing party system; compromised the collective responsibility of Cabinet; undermined the relationship between the executive and Parliament; destabilised the Union; and drawn the courts and the monarchy into political controversy. At the root of this turmoil lies a tension created by an exercise in direct democracy – the referendum of 23 June 2016 – within the context of a representative system. For a period of more than three years from this point, the insistence by the UK executive that it was a custodian of an irresistible obligation to leave the European Union on whatever basis it deemed appropriate and/or was able to obtain from the EU created a series of constitutional convulsions. Even the most venerated of doctrines – the sovereignty of Parliament – came under scrutiny, with those who purported to be its fervent supporters in practice seeking to discard it in pursuit of Brexit.

The unwritten UK constitution, supposedly a source and manifestation of stability and continuity combined with a capacity for incremental change, both allowed the Brexit episode to come about, and has failed to facilitate a satisfactory response to it. It is becoming tarnished, with a diminishing band of enthusiasts. Some still hold that the flexibility and capacity for informal, incremental development that supposedly characterises our ‘unwritten’ arrangements is an advantage over other ‘written’ constitutions, on the grounds that the UK has been able to avoid greater disruption. How true such assertions have ever been is debatable. Viewed from the perspective of controversy and conflict over the status of Ireland, for instance, claims of a history of constitutional success become less plausible. They are also difficult to apply to the present.

It is relatively easy to establish wide agreement that the constitution is performing poorly, or even that it needs a major overhaul. But views of what, precisely, the problems are, and what new arrangements might be needed, are likely to vary. The first obstacle that must be overcome in any project to instigate a written constitution is that, to succeed, it should rest on the broadest consensus possible. Yet the present salience of this objective has derived from an issue so divisive – Brexit – that it is likely to infect any attempt to respond to it. In the exchange quoted at the head of this paper, the Attorney General presented a written constitution as an entity that would follow a departure from the EU, that was, from his perspective, a desirable objective, though attaining it has involved some constitutional difficulties. For others, the creation of such text would be a response to that disastrous sequence of events. They might also see it as a means of ensuring close alignment to the EU after departure, and perhaps providing a basis for re-entry in future.

The particular motives of supporters of a written constitution are likely to influence their view of its appropriate form and content. Those who have found favour with the recent performance of the Supreme Court, for instance, might wish to reinforce its role. Those who regard it as having acted improperly might wish to diminish it, or subject it to greater political influence. Indeed, whatever the precise intentions of the Attorney General, it seems likely that a written constitution that fits with the general outlook of the present government would be founded on principles that many longstanding advocates of such a text would find objectionable. What provision, for instance, might it make for justiciable human rights?

If a movement to establish a written constitution that crossed the Brexit divide was attainable at all, it probably would not be a worthwhile version of such a text; indeed, it might serve to lock in some undesirable features. Nonetheless, it would be possible to build a diverse body of support for a valuable written constitution, from the various groups that Brexit has alienated. Indeed, as well as benefiting from their support, it could help galvanise this potential coalition. Though it has lately made some progress towards closer cooperation, more is necessarily. A commitment to a written constitution could be an early and central plank in a shared programme.

But what should such a text comprise? When the idea of a written constitution comes onto the agenda, many different interests will see it as a means of entrenching their particular favoured measures. Up to a point, it is necessary for diverse groups in society and politics to assess a document as providing for their needs, if they are to be supportive of it. However, if the task of drafting and securing agreement to the text is to be manageable and delivered within a realistic timeframe, this pressure to extend beyond a core set of measures should be firmly resisted. Adding a new item may attain approval from its sponsors, but also creates the risk of alienating others, and of diluting the overall document. When approaching the task of a written constitution, there are two questions to ask. The first is: what aspects of the political system are so important that the rules pertaining to them require a special legal status reflecting their significance? Holding to this approach should avoid the problem of inflation. The object of the exercise should not be the drafting of a lengthy scroll, but of discerning and fixing the core fundamentals. Having achieved this objective, the second question is: what precisely should those rules be? In the following passages, I seek to answer both those questions, by indicating a series of categories and approaches to take to them.

The executive

A task, the urgency of which recent events have demonstrated, that a written constitution would need to perform would be to define the functions of the UK executive and the limitations to which it is subject. At present it operates in a range of important areas under authority derived from the monarchy, rather than Parliament, using a constitutional power source known as the Royal Prerogative. All governments, under any system, need a degree of discretion – for instance in the conduct of diplomacy – but it would be useful to establish more clearly what the powers are, and the extent to and way in which Parliament and the courts can supervise them. Some privileges that currently rest with the executive – including the ability to prorogue and recall the legislature – clearly should not belong to it at all and should be transferred to Parliament. Similarly, it should be made clear (if it is not already) that the suspension of an Act of Parliament by executive order is entirely prohibited. Furthermore, a written constitution should exclude the possibility of ministers advising the monarch to withhold Royal Assent from a bill that has passed through all its parliamentary stages. These prohibitions address abuses that have either been perpetrated recently or about which there has lately been speculation. There are no doubt other misuses to which executive discretion might be put. For this reason it is important that the whole of the Royal Prerogative is replaced with an arrangement more satisfactory from the standpoint of democratic oversight.

Parliament

The weaknesses of Parliament arising from its vulnerability to the discretionary powers of government would to a significant extent be resolved by the extinction of the Royal Prerogative set out above. Affirmative parliamentary approval, for instance, could be made a requirement for treaties. The legislature (or one of its chambers) could take responsibility for the election of prime ministers, if necessary by preferential voting; and could clearly remove a premier from office, without needing to trigger a procedure that could lead to a General Election.

This latter provision leads to the question of how the composition of Parliament is determined. The written constitution should prescribe the electoral system used for the lower chamber. Not all such texts internationally deal with this subject. But if the exercise discussed here is truly to address the difficulties experienced by the UK political system at present, it must replace the single member plurality (or so-called First-Past-the-Post) system with a form of proportional representation, such as Single Transferable Vote or the Additional Member System. The present method employed for electing members of the House of Commons has had the effect lately of offering the electorate as a whole a choice between two parties, both of which have been seized by extremists. Even before they had full control of the Conservative Party, a minority within its parliamentary cohort were successful in foisting their Eurosceptic agenda upon it. Under a different system, phenomena such as entryism and capture would have less salience. This reform could also force the development of a more mature political culture which emphasised negotiation and trade-off rather than zero-sum contestation. In time, it could make the UK more able to participate constructively in organisations such as the EU. The means by which the membership of the second chamber is determined are discussed below.

Territorial governance

Under the present system, significant responsibilities have been devolved to Wales, Scotland and (to the extent that is institutions are functioning) Northern Ireland, and to a lesser extent to parts of England. But the ultimate legal authority remains at the centre; and the territories do not have a direct role in decisions made on behalf of the UK as a whole. The devolved executives and legislatures rely on arrangements such as the Joint Ministerial Committee and the Sewel Convention, which fail to provide them with a secure constitutional position. Though the Sewel rule has received statutory recognition (through the Scotland Act 2016 and Wales Act 2017), the Supreme Court has insisted that it is not justiciable. Therefore there is no legal protection against the UK Parliament, if it chooses to do so, legislating in ways that interfere with the devolved systems. This imbalance could become particularly significant in a post-Brexit environment in which the UK government sought to alter the regulatory framework of the UK, perhaps to diverge from that of the EU, or align with a prospective trading partner. A written constitution could introduce a firm legal requirement that any UK legislation pertaining to devolved matters was subject to some kind of devolved approval. It might also take steps to integrate the devolved legislatures and/or executives into UK level governance. The most radical version of this measure would be the replacement of the House of Lords with a federal second chamber. The handling of England within such an arrangement would require close attention. It is too large to be incorporated as a single entity into a federal system without creating instability. The written constitution might create a mechanism whereby regions within England could, if they chose, take on self-government and be included within the federal chamber.

Human rights

UK department from the EU will make the human rights of all people living here – whether UK subjects or otherwise, since all are human – less secure. The European Union Charter of Fundamental Rights, which provides comprehensive protection – is the only aspect of European law that the European Union (Withdrawal) Act 2018 does not seek to maintain in a post-EU domestic legal order. Post-Brexit, the Human Rights Act 1998, which incorporates the European Convention on Human Rights, will be the main means of upholding rights. Those who have driven Brexit tend to be ill-disposed towards this supranational mechanism also. It is likely to be next on their list. A straightforward approach to human rights protection would be to transfer the Charter into UK law and to make it, and the European Convention on Human Rights, fully justiciable, up to the point that an Act of Parliament is void in as far as it conflicts with their provisions. Over the past decade or so there has been discussion of the idea of a ‘British Bill of Rights’ which modifies the Convention to make it more acceptable to the UK. Even countenancing this idea was to accept the premise that there was something wrong with the concept of ‘European’ and ‘human’ rights. Some have advocated it on the basis that it might successfully mollify the reasonable concerns of people who were in reality actively opposed to genuine rights protection. This project is doomed to fail, in the same way and for the same reason that implicitly accepting Eurosceptic narratives was. Ultimately it merely served to embolden the opposition and strengthen its credibility. A preferable course of action, that would avoid exercises in futility, would be to incorporate existing European texts into a written constitution.

The courts

We have lately witnessed the vital role that the courts can play in upholding constitutional standards. They have done so in the most difficult of circumstances. Their integrity and decision-making have been challenged publicly; and questions have been raised about whether they should be playing such a prominent role, and whether different means of appointing senior judges should be established. A written constitution could perform a valuable role in addressing this undesirable circumstance. It could make clear that it was entirely proper for the courts to be involved in matters of political controversy, if they were justiciable. The text could define with greater precision than currently exists what were the powers and scope of the courts, discouraging them from exceeding their proper remit, and protecting them from the charge that they were doing so. The written constitution would also empower the courts to strike down all actions and legislation – including Acts of Parliament – if finding them in violation of the provisions of the text. This measure would be one of the most important features of a written constitution, and would represent a firm break with the doctrine of parliamentary sovereignty. In recent months, Parliament has at times appeared a protective barrier against abuse by the executive. However, absent electoral reform, at some point – possibly in the near future – a government will have a majority in the House of Commons. If the executive is intent upon action that is constitutionally problematic, the legislature might become a vehicle for, rather than obstacle to, the attainment of its ambitions. In these circumstances, courts able to carry out full constitutional review would be of great value.

Amendment

For a written constitution to be meaningful it requires some form of enforcement, often judicial, as is suggested here. It must also be protected from casual alteration. At present, the UK Parliament can change the fundamental rules of the system through regular legislation. If a written constitution were introduced that did not produce a clear break with this practice, it would be vulnerable to alteration by a future Parliament in way that rendered its supposed status as fundamental law meaningless. It must be possible to change the constitution. Excessive rigidity is certainly to be avoided. However, alterations to the most important rules of a political community should require a higher than normal level of consensus. Within the federal context discussed above, there might be a need for each of the components of the UK – or at least a majority of them – to approve an amendment to the constitution.

Process

How might a written constitution be achieved? As suggested above, the political environment might seem lately to have become more receptive to this idea. But attaining the necessary combination of support for a constitution that met standards of good practice remains a difficult task. If those currently opposed to the present government – its approach to Brexit and its constitutional agenda – are unable to coalesce, they may find themselves in opposition for a protracted period. But whether they achieve the opportunity to reform the political system in the near feature, or at a more distant point, the appropriate approach to this task will be similar. The best way forward would be to establish a gathering of senior political figures of different parties and territories of the UK to agree some basic principles. It could then present them to a convention, including a randomly chosen group that was representative of the UK public. With access to expert evidence and with moderated input from the wider public, this body could consider the proposals it had received, and potentially add some items of its own to the agenda. It would then report back to the politicians. If they were content with the outcome, a constitutional text could be presented to the UK Parliament and devolved legislatures for simultaneous approval. A process of this type would be the best means both of resolving the problems of substance faced by the UK political system, and ensuring that solutions arrived at were both enforceable, and entrenched.