It’s certainly not “time” for a written constitution

by Carl Gardner on March 29, 2010

I’m grateful to Charon for drawing my attention to Richard Gordon QC’s article in the Times last week arguing that it’s “time” for a written constitution. I’m not as impressed as he was, though. I’m thoroughly and firmly against a written constitution for the UK. The current conventional vogue for one, together with Gordon Brown’s occasional loose talk of one, risks steering Britain towards a massive historic blunder. I don’t think Richard Gordon makes a good case for one, either.

I love constitutional change. I think one of the best things about politics in Britain is that there’s continual debate about our constitutional arrangements and the way we protect rights, and as a result, regular and ongoing reform. At the moment we’re discussing changing the House of Lords further, and radically reforming libel law. Not long ago we gave more powers to the National Assembly for Wales, we continue to debate the wisdom of the domestic human rights law system we adopted twelve years ago (which we retain the option of abandoning) and the powers of local government. Just five examples where reform has happened recently, or is expected soon. One of my main complaints against a written constitution is that overnight, its effect would be to freeze our constitution, and make constitutional reform a much less important part of our national discourse as we found we were simply straitjacketed within the entrenched written arrangements we now had and were unable so easily to talk about and make these sort of piecemeal changes. I find it astonishing that this simple point isn’t more often grasped.

But let me deal with some of Richard Gordon’s arguments. He says

Our profound disillusionment with politics can only get worse with the “constitution” we have; an unwritten (in the sense of uncodified) “constitution” that is out of touch with the reality of the modern world.

I admire advocates of a written constitution (and of fixed-term parliaments, PR and every other constitutional reform) for trying to link their cause to the current political crisis following expensesgate. They’re not really linked, though, are they? There have been plenty of financial scandals among politicians in countries with written constitutions, like France and Germany to name only two. Gordon’s remark about the “reality of the modern world” is just a wrong-headed appeal to fashion, and reminds me of a claim I once heard attributed to Carmen Callil, who apparently said Britain can’t “carry on drinking warm beer” (a remark which, if true, shows how little she knew about beer). The fact that something’s in fashion in many places doesn’t mean other places or ways become “unreal” or part of a dispensible past. Richard Gordon’s approach to the constitution is akin to a belief that the food traditions of Italy, say, should be abandoned in favour of fast food because that’s the “reality of the modern world”.

After a brief discussion of the views of Lord Steyn and Lord Hope in Jackson v Attorney General, he goes on

In stark contrast to parliamentary sovereignty, constitutional supremacy makes it clear that power resides in the people and that they have delegated a defined measure of that power to government.

It may do – in theory. But this is an abstract “people” whose abstract “will” is strictly confined within the limits of the supreme constitution. Who, in Richard Gordon’s scheme, wields the undefined measure of power that has not been delegated to political institutions? No one, is the real answer; the power has been abandoned in all but theory, because the constitution allows the people themselves no means of exercising it. But more of that in a moment.

After a fashion our constitution — haphazard as it may be — “works”. To move from an informal arrangement of that kind to a formal written constitution, itself usually the product of a crisis in national affairs, may seem at best pointless and at worst threatening.

I actually agree with this. Our constitution certainly does work. Anyway, it works just as well as that of anywhere else in the “reality of the modern world”, where other countries have occasional crises about, for instance, hanging chads or, in the case of France, “cohabitation“. To change our entire polity from top to bottom (and abandoning Parliamentary sovereignty would certainly amount to that) would indeed be pointless and threatening.

The apathy that seems to have triggered rapidly declining electoral voting patterns is part of a more general malaise in which we, as citizens, feel powerless to affect events about which we feel strongly but over which we have no control (the Iraq war is a notable recent example); a malaise in which the top-down government that we have — itself the legacy of our history of absolute monarchy — leaves us politically disillusioned and at times (“expenses” being a notable recent example) profoundly mistrustful of the good intentions of those who exercise power over us.

We’re back to the point about the power of the people again. How would a written constitution increase our ability to influence events? No imaginable written constitution would conceivably prevent Parliament from voting for war (which ours did) or prevent a crook (as some people think Tony Balir was) from holding power. Watergate happened in Washington, not London.

A written constitution would decrease the peoples power, in fact. Think about America, where city and state government may enact measures to control guns, yet those measures can be challenged and struck down by judges like Antonin Scalia regardless of the views of the people. In the United States, the people’s choice is not the last word on matters such as, for instance, how gay relationships should be formally recognised. There, liberals and conservatives alike have to wait on legal procedures and the rule of judges to tell them whether there must, or may not, be gay marriage laws and whether or not a referendum is to be respected. Here, if a political party argues for gay marriage or civil partnership, and wins a majority in Parliament, the people’s wishes can be enacted without final judicial approval. Yes, this is a weakness, and exposes us to the risk of  intolerant majoritarian rule. I wish critics of our system, though, would accept that the American “sovereign written constitution” model, admirable though it is, also has the serious weakness that it limits the people’s ability to will change.

However, without a national debate nothing will happen. We will have to be content with what we have. And what we have is the outmoded doctrine of parliamentary sovereignty; the palest of shadows of the popular sovereignty to which we are entitled if we want it.

To call Parliamentary sovereignty “outmoded” is simply rhetoric based on the attraction of fashion, as I’ve said. Richard Gordon wants a national debate – fine. We’ve been having one for at least twenty-two years in fact, and I hope it continues.

But what if he got his way and we did have a written constitution? What would happen to national debate on constitutional change then? It’d end, effectively. Where is the ferment of constitutional debate in the US? It isn’t as lively as it is here, because the written constitution is, in terms of workaday criticism of its workings, simply an unshiftable given. Since prohibition there have only been six constitutional amendments; the Equal Rights Amendment has not been adopted in ninety years of activism in a polity saddled with the useless, genuinely outmoded “right to bear arms”.

If you want the people to rule over institutions like Parliament and the courts, and if you want constitutional reform and improvement to remain a constant issue in our politics, you should oppose a written constitution.

{ 12 comments… read them below or add one }

1 simply wondered March 29, 2010 at 20:06

honestly – where do people get these ideas that a written constitution per se increases the power of the ordinary individual? i didn’t read the argument i’m afraid because my mind is so closed to a written constitution that i would just have got angry (not the best reason i admit, but the extracts you quoted certainly got me going, so at least i understand my own prejudice to a degree).
i come in from the point that any constitution is only as strong as the rule of law – zimbabwe has a very nice written constitution… bugger all use of course as the mechanism to enforce it is lacking.
.-= simply wondered´s last blog ..international women’s day – silver jubilee =-.

2 jonathanwthomas March 29, 2010 at 20:16

Thank you for this very thorough overview of British Constitutional theory – I’ve often wondered why you guys didn’t have one and it never crossed my mind that it would simply create political paralysis. While I’m not an expert on British constitutional affairs, I can comment somehwhat informed on how things are here in America. You’re right – our unchanging, permanent constitution – combined with our political parties – creates political paralysis that gets nothing done and disenfranchises voters who feel powerless. The constitution is so powerful that no one can stand up against it and implement any meaningful change. This document was written 200+ years ago – how can we apply it to today’s society? It’s often called a ‘living document’ but as you said there’s been 6 amendments in the last century, hardly a living document. Even the mere suggestion that we call a constitutional convention to amend it would just get laughs from all in power.

We have three branches of government that exist to stop what each other are doing – so basically nothing ever really changes unless they all agree, which is rare. Our system worked in theory, but in practice combined with corporate oligarchy – it just doesn’t work.

Many foreigners are very critical of Obama being elected on a change platform and that he has done nothing – I finally understand where the criticism comes from. Parliamentary democracies are used to parties sweeping to power on a platform of change and actually implementing it. It doesn’t work that way in America. Obama swept to power on a platform of change – but he’s just one man with a staff. He can’t implement any change. The real power lies in congress who abdicate their responsibility to political parties and corporate lobbyists. Congress is the problem, they’re the useless lot preventing Obama from getting anywhere. And then you have the Supreme Court stalking in the background to strike down anything the others do.

It’s a mess and frankly, I must prefer the British parliamentary system. Add that to the list of reasons why I’ll be moving to the UK soon. I hope you never have a written constitution – it’s a much more sensible course of action.

Anyway, sorry for the rant….
.-= jonathanwthomas´s last blog ..Life in London: An ode to the Red Button – Joys of the BBC Red Button =-.

3 Caitlin March 29, 2010 at 20:24

The Magna Carta is the closest thing Britain has to a constitution. It’s certainly a document of constitutional law, if not an actual constitution. It sets out limits to royal power and establishes the authority of parliament.

Constitutions don’t always lead to paralysis. The US constitution leads to paralysis because there are too many checks and balances. But plenty of parliamentary democracies have formal constitutions. Australia has one (but it does not have a bill of rights). I imagine Canada has one.
.-= Caitlin´s last blog ..Photo Friday: Gandhi in San Francisco =-.

4 Zak Choudhury March 29, 2010 at 21:29

Australia’s constitution is just as ridgid as USA’s. The federal Commonwealth of Australia Constitution Act of 1900 sets out how constitutional amendments can be put through and it’s really tough. With only 8/42 proposals passing the process in a period of 90 years. I love how in the UK we put our constituional trust in Parliament’s good judgement (though that channel 4 stuff had me little miffed) and have the ability to give strength to a government by voting it in unanimously. Our kids (parliament) can bring in legislation to cover anything, even if they don’t think it through properly (digital economy bill).
.-= Zak Choudhury´s last blog ..What happens when David plays Goliath? =-.

5 DW March 30, 2010 at 02:48

I must declare an interest in this question, as a British-born naturalized citizen of the US. When I became a US citizen I, along with others I know who have been through the same process, found it very valuable to have a concise document that spelt out how the nation was supposed to be arranged, and I wished that I had had some similar state of affairs when I lived in Britain.

One might liken countries to boats floating on the ocean. They will naturally drift with the tides and winds of political forces. A codified constitution is like an anchor that restricts, to some extent, the distance the boat may drift. In very severe storms the anchor may come unstuck and drag somewhat along the ocean floor. (See, for example, the changes wrought in the US as a result of the Great Depression). A country without a codified constitution is like a boat constrained only by its own inertia. It therefore has more flexibility, but less certainty in its position. In the UK’s case, the lack of an “anchor” has resulted in power inexorably ebbing away from the Sovereign, the Lords, Parliament in general, and towards the Prime Minister, giving rise to the current situation of “elective dictatorship”.

In the context of the UK, the lack of a codified constitution means that some very basic structural questions are left unanswered. For example
* what is the relationship between England, Scotland, Wales, Northern Ireland and the UK as a whole?
* are there any constraints at all on what Parliament may constitutionally do? For example, could it
** abolish altogether the House of Lords, leaving the Commons as the only House?
** abolish elections for the House of Commons, leaving the incumbents with lifetime tenure?
** declare the UK a republic?

6 DW March 30, 2010 at 02:51

@Caitlin:

The US is that it has both a codified constitution (as the UK does not) and also an uncodified constitution like the UK’s. The “paralysis” of which you complain is mainly due to the filibuster rule of the US senate. That rule is not written anywhere in the codified part of the US constitution, but has grown up accidentally over the years as part of the uncodified constitution — in much the same way that parliamentary procedure has evolved in the UK. Thus it is rather unfair to blame the codified nature of the US constitution for all perceived problems in its politics. The same no doubt applies to all other countries with written constitutions.

BTW, while it may once have been true that Magna Carta served as something akin to a constitution, it has almost entirely been repealed by subsequent legislation. See http://en.wikipedia.org/wiki/Magna_Carta

7 ObiterJ March 30, 2010 at 20:27

I blogged on this a little while ago:

Written Constitution

I am very much inclined to your view that a written constitution would be a massive blunder. In a rapidly developing and changing world flexibility is very important if not essential. I also found Richard Gordon QC’s article unconvincing.

Apart from asserting that a written constitution would be a “good thing” and would “give power to the people” the arguments for it seem to be weak. There are also numerous issues such as:

1. What would be in the written document.
2. How would it be amended.
3. Just what is a “constitutional” matter.
4. What would be the role of the judges?
5. How would a written constitution deal with “devolution”
etc. etc.
.-= ObiterJ´s last blog ..Illegal Drugs: Mephedrone: Misuse of Drugs Act 1971 =-.

8 Ri8chard Gordon March 31, 2010 at 09:04

Without wishing to prolong this interesting debate on my article in the Times, I cannot resist responding to Obiter J’s questions. Each of them is answered in my book REPAIRING BRITISH POLITICS.- A BLUEPRINT FOR CONSTITUTIONAL CHANGE.

I can readily accept that you may not agree with the answers but simply to pose the questions with the unstated assumption that they are unanswerable is not, perhaps, the most logical way of approaching issues which I identified in my article as difficult.

9 Carl Gardner March 31, 2010 at 09:53

Thanks for replying, Richard – I’ll look forward to getting my hands on your book.

Interesting that Jonathan (who admittedly is the web’s Number 1 Anglophile) is an American planning to come here, who likes the British approach, while DW who’s gone the other way prefers the American method. By the way, DW, answering some of your points, I’d say

– why do we need an abstract answer, in advance, to the question of the relationships between countries in the UK? Might not such an approach before now have been an obstacle to devolution and some of the Northern Ireland arrangements we set up after 1998?
– I don’t think there are any limits at all to what Parliament can do constitutionally (and indeed that power is the keystone of our constitution)
– It follows that yes, Parliament could abolish the Lords; of course that would require a bill to be passed by the Lords or perhaps under the Parliament Acts); it could abolish elections; and it could make the country a republic.

And since you’ve chosen to be an American, I don’t think you can oppose, in principle, a country’s power to cast off the British Crown and to declare itself a republic!

10 Carl Gardner March 31, 2010 at 10:03

Caitlin, Zak – I wish I knew more about the Australian constitution, and the Canadian one, which I do know a little bit about. Just because other countries have good models, though, doesn’t mean we should adopt them any more than that they should adopt ours. One of my concerns is to try to persuade people we have a perfectly good constitutional model here, as do many other countries.

Obiter, we agree. As for your questions, of course Richard is right that the questions are answerable. But my question is, why should his answers today (or our answers, or Parliament’s – especially if we no longer want it to be sovereign) determine what the answers must be for generations to come? I say we should let them make their own minds up.

11 ObiterJ March 31, 2010 at 19:12

Many thanks Carl and also to Richard for replying. I am actually far from saying that the various questions are unanswerable and did not intend to imply that they were. However, I would submit that there is no definitive answer to some of them. For example, I find no definitive answer about what should be in a written consitution and what should be left out. There is also a wide spectrum of opinion about certain matters.

On this whole question I am very much open to persuasion – (hence the thread on my blog) – and I will try to get Richard’s book and consider the arguments further. My key concern is that written constitutions can be fixed, difficult to amend and can sometimes stand in the way of necessary progress. Of course, if the consitution were to be merely just another Act then it is of lesser value since it is open to the latest political persuasion to alter it. [See, for example, the debates re the Human Rights Act 1998 which is, I think, a generally beneficial development in our law]. Is there some half-way house which permits a written consitution which is relatively easy to amend but is not open merely to political fads.

I am also very suspicious of those politicians who peddle a written constitution. I ask – “Why are they doing this”? “What is in it for them”? Politicians rarely seem to do anything out of pure altruism.

Difficult questions and issues here. Once again, many thanks.
.-= ObiterJ´s last blog ..Illegal Drugs: Mephedrone: Misuse of Drugs Act 1971 =-.

12 ObiterJ April 12, 2010 at 18:38

I note that the Labour Party manifesto 2010 contains a commitment to setting up an All Party Commission to chart a course to a written constitution.

I have been reading Richard Gordon’s very recently published book: “Repairing British Politics”. If I may say so, it is well written and contains sufficient detail to enable the reader to understand the reasons for the many suggestions which Mr Gordon makes.

The key point which Mr Gordon attacks is the doctrine of “Parliamentary Sovereignty” which he argues is the antithesis of what we actually need which is constitutional supremacy. On this point I find his arguments to be very persuasive. Although Mr Gordon recognises the history of parliamentary sovereignty he clearly sees it as the major obstacle to fundamental constitutional reform.

It is claimed that parliamentary sovereignty is incompatible with a written constitution since such a constitution would place certain constraints on parliament. It is a doctrine which has never been endorsed (at least not specifically endorsed) by the people. It perpetuates a hierarchical top-down system of government which actually obstructs representative democracy. It is a power sustaining device which is also out of kilter with reality. This blistering attack is difficult to resist.

The book contains a lengthy – (Preamble and 14 Parts) – “draft constitution” though it is made clear that this is a starting point for debate. I would respectfully say that it is an excellent starting point.

Mr Gordon also envisages a new constitution being introduced by two referenda. First, a referendum asking whether people wish to have a written constitution. Secondly, if the answer to question 1 is yes, whether people accept the constitution which would be attached to the ballot paper. Of course, the answer to Q1 might depend on what was in the proposed constitution or are people going to be asked to vote on Q1 without knowing the detail of what is proposed? The problem with Q2 is that people are asked to say Yes/No to a complex document and the answer for many would be NO if they disliked some aspect (even perhaps a single aspect) of the proposed constitution. [This shows one limitation of referenda. The issue has to be capable of being framed as a straightforward question].

Some of Mr Gordon’s ideas will undoubtedly meet with resistance. Many do not wish to see the Church of England disestablished though I am not among them. Many do not wish to retain a Monarchy – but again, I am not among their number. There are endless arguments about alternative voting systems for parliament and whether to have single member, two member or multi-member constituencies. Some will dislike the more powerful role which a written constitution inevitably creates for the senior judiciary. The list could go on. Nevertheless, Mr Gordon has written a very readable book which could well serve as a catalyst for public debate on this massively important topic.

I would also have some concern that Mr Gordon seems to see the new constitution as existing along with old legislation such as the Bill of Rights 1689. Could not those old laws be contained within a new constitution so that they could be repealed and not remain like spectres from ancient history?

One final point for now. I am entirely in agreement with Mr Gordon’s view that there is too much tinkering with the present constitution. We need a well considered “road map” to reform. In proposing an All Party Commission the Labour Party are to be congratulated but that proposal sits alongside other reforms (e.g. alternative vote for elections). Why not do the whole thing as a package or have they calculated that there is party advantage in doing certain changes in advance of whatever the commission may come up with?

I hope that I have done Mr Gordon’s excellent book justice. I would recommend it to any reader who, like myself, is interested in this topic and wishes to see our country with better constitutional arrangements than the present executive dominated parliament which claims to have absolute sovereignty. Is that not, in reality, the elective dictatorship which we warned about by the late Lord Hailsham?
.-= ObiterJ´s last blog ..Formal Powers of the Crown: New Acts of Parliament: General Election =-.

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