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.