Constitutional conundrum

Britain has no written constitution.

This is one of the stock statements that pundits make on British political life. And, of course, like most stock statements, it isn’t really true. The vast majority of the British constitution is in fact written down, but in disparate documents, none of which are headed ‘warning: contains constitution’.

The Act of Settlement, the Parliament Acts, the Scotland Act, the Government of Wales Act, the Bill of Rights. These are all parts of the constitution, although none are explicitly headlined as such.

A small but consistent strand of modern British politics (which surfaces again in the comments on Eddie’s post below) has been the campaign to give the UK a unified written constitution. It has been becalmed for some time now, but with the tensions brought by such issues as devolution, Lords reform and European integration, the question is once again being posed.

In this post, I want to take a brief look at what the purpose of such a constitution would be, how the UK might go about adopting one, and then throw open the debate on what it might contain.

What is a constitution for?

Fundamentally, a constitution is a legal document which defines the functions of the state – its structures at all levels and their interrelation. It also defines certain fundamental values, such as democracy, the rule of law and voting frequency. It often extends to areas such as rights to property and to privacy.

Constitutions serve to define the areas where politicians cannot interfere. Almost always, they contain provisions to restrict politicians’ ability to amend them. They may set a high parliamentary majority (say two-thirds), they may require a referendum or they may, as in the US, stipulate complex federal procedures.

As a result, many constitutional provisions are about limiting democracy. For example, the US constitution (as amended) puts a two-term limit on presidents. So, even if the US population wanted democratically to elect a president for a third time they would be prevented from doing so. Similarly, here in the US, abortion, since Roe vs Wade, has been a constitutional issue. So democratically-elected legislatures are unable to act on the issue even if they wanted to.

This is all very well if your views happen to fall on the same side of the issue as those of the framers or interpreters of the constitution. But let’s not kid ourselves, it can lead to huge ill-feeling amongst those who disagree, as they see the constitution as a barrier to enacting a change via normal legitimate democratic means.

So be careful what you wish for in a constitution, because in all likelihood you’ll be stuck with it.

How would the UK get a constitution?

One of the problem for advocates of a unified written constitution for the UK is that the existing constitutional arrangements make the adoption of one virtually impossible.

The only body capable of introducing a constitution would be the UK Parliament. So there would need to be a Constitution Act. Unfortunately, that Act would be like any other – able to be repealed or amended by any future act. Not a particular improvement on what we have now, then.

To prevent this, the Act might include a section saying that it could only be repealed or amended by, say, a two-thirds majority of MPs, or after a positive vote in a referendum. But a future Act could repeal that section, or simply state that ‘all parts of past legislation stipulating increased majorities or referendums shall be considered void’. There is no existing mechanism for introducing ‘special’ legislation that is immune from easy repeal or amendment.

And a constitution that can be repealed or amended as easily as any other piece of legislation is just another piece of legislation.

I have yet to see any solution to this seemingly insurmountable problem.

What would it contain?

But say some legal experts could find away around this problem. That we could somehow find a mechanism to put our fundamental document in place. What should it contain, and perhaps just as importantly what should it leave out? And what should the mechanism be that would allow it to be changed?

Should it stipulate an elected House of Lords, and the voting system to elect both it and the Commons? Should it define and limit our relationship with the EU, NATO, the WTO? Should it have anything at all to say about business, free trade, or workers’ rights?

And should it encroach at all into moral areas, such as racial equality, family structures or children’s rights?

Is there a body of British values that is so fundamental and universally accepted that it should be enshrined in a permanent legal document? The diverse views on show in the blog world would suggest that reaching any kind of consensus will be at best a challenge. Are we up for it?

The comments box is open.

  1. On the technical aspects, if a Constitution Act were passed as legislation it would become law and would thus change the powers Parliament has under the law. The House of Lords couldn’t (pro-hunt lawyers’ arguments aside) continue to assert equal powers to the House of Commons after the 1911(?) Parliament Act, because the law had been changed. So surely Parliament’s powers can be emasculated by statute without a simple reversal route?

    This all depends, as does any constitutional scheme, on underlying respect for the law – without this, a constitution isn’t worth a damn. But we have as strong a rule-of-law tradition as most countries, and if a statute stated that Parliament’s legislative powers were constrained in some way, then that would be the law of the land. For Parliament to attempt to reverse it through a 1-vote majority (assuming weighted majority rules are used) would result in a judicial review and the amendment being declared invalid; just as would apply in the US. (I’m not a lawyer, obviously, but I don’t see why this is so – Parliamentary sovereignty is a cliche every bit as much as you point “unwritten constitution” out to be.)

    Now, as to content… For me, a constitution should focus (as the original US constitution did) on being a charter of government, and not a social framework. It should set out the powers and competencies of different governing institutions, checks and balances, etc, but make no attempt to specify on policy issues, except as they apply generally to the wielding of the police power (i.e., habeas corpus, trial by jury).

    On international stuff, the US approach seems right – that treaties should be ratified through higher level legislation, rather than as simple national statutes, because they incur ongoing obligations. But again, the constitution shouldn’t specify the EU, NATO, or WTO, etc, because we should want our constitution to last centuries (our evolving arrangements are 300-odd years old, after all) and most of these institutions will be lucky to survive in a recognisable form until 2050.

    Likewise, I don’t think there is any fundamental body of British values, or at least one that is meaningfully articulable. Any articulation will inevitably be that of a governing majority at a particular moment in history. All the political parties like to say their values are those of the British people, but they can’t all be right (and frankly, it seems likely none of them are). There’s a further issue here for me – to even attempt to arrive at a list of British values seems very, well, unBritish and abstract.

    So, my plan for a Constitution would be simple document, setting out the basis of Parliament (including a senatorial upper house – a smallish chamber of long-serving elected representatives, say 12-year-terms, elected in tranches every 3 years, with full upper house powers like the Lords used to have), the Crown, the Courts, the Church, etc. If we could arrive at an agreed basis for sub-UK government, then I’d go one step further and enumerate specific competencies for the central government, with nations/regions free to act in all other areas.

    Oh, and I’d also define the Honours system in the Constitution, to prevent abuses of it. But it’d be a revised system. But that’s another story.

  2. Shuggy said:

    Yup – and my plan for a constitution would involve making sure that nobody in New Labour would have a hand in writing it up. That’s not a political point; it’s all those sentences without verbs, and all that low-grade management-speak mixed in with Biblical allusions.

  3. Jono said:

    Parliamentary sovereignty is not as cliché as the ‘unwritten constitution’ point. As far as I know the only time the Lords have overturned an act of parliament is the Merchant Shipping Act, which was considered incompatible with the European Communities Act, which the courts have given a special status to – unless it is explicitly repealed or overruled all legislation must be compatible.

    The Lords have in the past refused to overrule legislation because parliament failed to follow the proper procedure. It was an act regarding Canada. A previous piece of legislation had required consultation before passing other legislation. The enacting part of the new legislation said something along the lines of “…and having consulted…”. No consultation had in fact been undertaken, but the courts said that they could not look beyond the words of the act in the case of the enacting part. All parliament would have to say is “…and having passed by the required majority…” and it would be law.

    With regard to what should be in a constitution, I would take the opportunity to disestablish the Church of England (and the Church of Scotland) – I am a Christian myself, though non-conformist, but I don’t see a reason for continuing an established church. Being a closet republican, I would also take the opportunity to abolish the monarchy.

  4. dearieme said:

    1) Why did your list of examples of constitutional laws omit the Act of Union?
    2)How would you repair the greatest flaw in the US Constitution i.e. the unbridled power of the Supreme Court to ignore the Constitution whenever it feels like it, and just invent its own constitution? Who should guard the guardians?

  5. Ah well, Dearieme – the problem in the US is that the Congress hasn’t got the balls to assert its supremacy. The Congress sets the powers of the Court, and could call it to account, but doesn’t have the guts to do it.

  6. Gareth said:

    My suggestions for the UK Constitution:

    Amendments to this constitution shall be made by a referendum and must be passed by a majority of more than 50% of eligible voters with a turnout of at least 50% of eligible voters

    There shall be no retrospective legislation.

    Any Act or part of an Act can be put to a referendum over whether it is to be repealed, once the signatures of 5% of the population are collected and verified. Just like in Switzerland.

    There shall be no foreign military bases within this country.

    Neither the Government, individual MPs or political parties shall employ people in the position of media relations or propaganda. Bye, bye Alistair Campbell!

  7. Jono said:

    Gareths first point contains a tautology. If 50% +1 of the population must be in favour for an ammendment to pass, at least 50% +1 must have voted, as you cant have 50% of those eligible to vote votinh in favour if less than 50% of those eligible to vote have voted.

    Others things I would put in the constitution:
    Proportional representation along with compulsory voting, the penalty for not voting to be set by parliament, but in any event not less than £50 fine.

  8. Any Act or part of an Act can be put to a referendum over whether it is to be repealed, once the signatures of 5% of the population are collected and verified. Just like in Switzerland.

    … and also like in California, which has helped to create a fiscal crisis.

  9. Andrew said:

    If the Metric Martyrs judgement gets backed up with a few more test cases on various aspects of constitutional law, a lot of this will be academic. In particular, it will pave the way for a formal written constitution, which will not be subject to implied repeal. Governments wishing to amend it will need to be explicit in their intentions, and which idiot is going to attempt to amend the Constitution in plain view without a bloody good case?

  10. Keeping it simple, keeping it sweet – I present the Nosemonkey Constitution for Britain:

    Don’t be a twat.

  11. Andrew: would anybody care?

    Nosemonkey: ridiculous. The country would be left ungovernable.

  12. Andrew said:

    Perhaps not, but at least we would go to our doom knowing that we voted for it and we let it happen right in front of our noses. That’s far better than the current New Labour you-voted-for-us-so-we-can-do-what-we-like-naaah-naah-naaah-naah-mandate speak.

  13. Blimpish – Like Jono, I think you’re a bit optimistic about the powers of the courts to enforce any new constitution. Judicial review is indeed a powerful tool, but it deals almost exclusively with the decisions of the executive, not the legislature. Even the much-criticised Human Rights Act stopped short of giving judges the powers to strike down legislation.

    The Lords were unable to do anything on hunting because of the 1949 Parliament Act, which was itself an amended version of the 1911 Act. Either of these acts could be repealed by simple majority. They have no special ‘constitutional’ status.

    Any constitution would need more protection than this. Our current arrangements make it very hard to see how such protection could be granted.

    And of course in my posting I failed to mention another crucial question – who would actually write the damn thing.

  14. If we were to pass a written constitution then, unlike the HRA, it would by definition give the judiciary powers over Parliament to strike down legislation. Otherwise it wouldn’t be worth the paper it’s written on. What I mean is – I’m not optimistic so much as saying that if we were to pass a written constitution then we’d surely pass it with the checks and balances needed as part of it.

    The act of passing the constitution (assuming it’s done properly) should therefore create the conditions under which it would be enforced. Bearing in mind the U.S. constitution was built on English legal tradition, this doesn’t seem too much of a stretch.

    In terms of writing the thing, you’ve got a real issue because we don’t have any clear tradition of (say) constitutional conventions to draw upon. And setting up a Royal Commission would cause me to want to buy a Kalashnikov…

  15. The US constitution, as good as it is, still rambles a bit, and remains a tad too specific. Parts of the Declaration of Independence (we hold these truths to be self-evident etc.), ommitting references to the “Creator”, could be the way forward.

    But keeping the monarchy would also be handy – all you then need to do is return the right for ordinary subjects to petition the Queen directly. Get a percentage of the electorate signing a petition, the monarch could then be obliged to use the royal prerogative to force parliament to rescind/rethink pieces of legislation. Far cheaper and more efficient than repeated referendums at any rate…

    As for writing the thing, I nominate Will Self. Admittedly he’s gone downhill in recent years, but at least then it would be guaranteed to be incomprehensible enough with excessively long and obscure terminology to allow flexibility without appearing floccinaucinihilipilificatiary…

    But the trouble with written constitutions, I think we can all agree, is getting them to say as little as possible while still providing restraints on the power of the state. All you really need are the fundamentals that we’d probably all agree should be enshrined as the rights of every citizen – habeas corpus being prime.

    Basically, constitutions should be about the rights of the citizen and the obligations of the state – not, as some in the current government would seem to have it, vice versa.

  16. At the risk of becoming unproductively circular – of course, the constitution could include checks and balances, but these could be struck down by subsequent legislation. It is one of the current principles of the UK constitution that parliament cannot ‘bind its successors’, ie, parliament cannot pass a law that restricts the freedom of subsequent parliaments.

    Of course, we could suck it and see – pass the constitution and see what would happen when the judges get to enforce it. But certainly the constitution would require almost complete support from all parts of the political specturm to survive…

    As for Royal Commissions – I agree. Looking back over history, new constitutions are generally written after complete societal collapses (eg, post war Europe, 1968 France) or when setting up a new country (US). How we ‘stop’ UK political life while we (whoever ‘we’ are) write some fundamental document is hard to envisage.

  17. Agreed on the need to avoid going any further in circles, but my point is that the “cannot bind” element of the constitution is not inviolable, and my guess is that (especially in today’s legal universe) a written statute which explicitly renounced it would supersede the traditional convention. After all, passing the constitutional legislation would be a catalysing moment in British politics (unless, as you allude, it was passed in the face of significant and unmanaged opposition), so people would be prepared for the locks to go on.

    Anyway, as for writing one – I’ve got a plan. We hire Mark Thatcher to overthrow the Government and implement a temporary dictatorship of sensible chaps like us to settle it over a few beers. Nosemonkey’s already given us a good preamble above, so we’re part way there.

  18. Unfortunately Mark Thatcher would be disqualified under the only provision in Nosemonkey’s draft constitution, though.

  19. Oh, and for the record, the date for the French constitution (fifth republic) was 1958 not 1968.

  20. Jarndyce: I didn’t suggest he’d be a part of arrangements. Surely he’d be the very embodiment of the ‘useful idiot’?

  21. Flann O'Brien said:

    Keep it simple: ask the Irish government for permission to borrow the Irish Constitution. It has all the main features of the British constitution set out in clear written English – apart from having a president instead of a monarch, an elected Senate instead of a House of Lords, PR, and provision for referendums (and the sections on divorce and abortion can be quietly adjusted to fit British conditions). It would also be a lot cheaper to borrow it than to hire a bunch of lawyers to write something that would end up looking pretty similar to it anyway …

  22. dearieme said:

    Flann, old fruit, if it has “sections on divorce and abortion” then it is a pretty defective constitution. Those are topics for statute law, or common law, surely?

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