Calls for a ‘written’ constitution for the UK are being increasingly heard. Before addressing the argument, there are two preliminary points that need to be made. First, most of our constitution is written. It is embodied in a range of statutes, such as the Bill of Rights 1689, the Parliament Act 1911, the Human Rights Act 1998, and the Fixed-term Parliaments Act 2011. It is thus not unwritten. Even to say it is uncodified has to be qualified by the fact that we are subject to a form of codified constitution in the shape of the treaties of the European Union. The situation we face in respect of Brexit derives from the provisions of the Treaty on European Union. Second, for nations with codified constitutions, the constitution extends beyond the document. Written, i.e. codified, constitutions are complemented by statutes, judicial decisions, and convention. The constitution has to be interpreted, practices develop into conventions. The document is the core source, but not the only source. You can read the document to know what it says, but you may need to wait for a court opinion to know what it means.
Arguing the case for a ‘written’ constitution is very much in vogue at the moment. The danger is one of what amounts to a moral panic inducing us to move in that direction, though how one achieves a codified constitution given our extant constitution is another issue. The case for it is not so much made on its merits, but rather as a means to an end. A ‘written’ constitution is a modern-day form of constitutional snake oil. It is advanced as a cure for a range of constitutional ills. ‘Our rights are under threat, especially if we leave the EU, let us have a written constitution’. ‘The Union of the UK is under threat – let us have a written constitution’. ‘Politicians are charlatans, on the make, the Speaker is overstepping the mark – let us have a written constitution’. These are not made-up examples, but drawn from arguments made recently. None starts from first principles.
These calls are made on the basis that the content will comply with what the particular advocate wants, but what is sought by some conflicts with what is demanded by others. Should it provide, as some US state constitutions do, for referendums (and, if so, on what issues and under what conditions) or should it be like the US Constitution and not do so? (An attempt to amend the US constitution to provide for a US-wide referendum on issues of war – the Ludlow amendment – failed in the 1930s.) And would, as some advocates claim, a written constitution make clear the rights of citizens? If they are to be living documents, the bill of rights sections of constitutions have to be crafted in broad terms. We already have the principal provisions of the ECHR embodied in the Human Rights Act, so it not clear how the argument of clarity applies. The difference lies in the extent of entrenchment. It is ultimately the courts that decide and, if the document is entrenched, their judgment will be difficult to overturn (which is the point of entrenchment, privileging certain values over a transient majority of parliamentarians or majority of electors). The US Supreme Court, in the Heller case in 2008, interpreted the 2nd Amendment to give individual citizens the right to bear arms. That conflicts with how courts previously interpreted it and appears at odds with what the founding fathers intended, but it is what the highest court says that counts, however poor the reasoning. As Brice Dickson has observed in Writing the United Kingdom Constitution, it is entirely possible to envisage cases where a court judgment would generate an outcry in the media. As he notes, we saw such an instance in the Miller case, with judges branded ‘enemies of the people’. An earlier example is to be found in the Hirst case in which the European Court of Human Rights held that the UK’s blanket ban on prisoners being able to vote in elections breached Convention rights. This led to a standoff between the courts and the UK government and House of Commons. No right is absolute unto itself, so it puts the courts in a powerful position not only to interpret each, but also to determine superiority in the event of conflict, such as a right to privacy versus freedom of the press. And what about the right to life versus a right to determine when to end one’s life in the form of assisted dying? The point here is not so much the merits, but the political reality. A codified constitution may not so much settle matters as invite conflict.
It is not that clear that the present conflicts besetting the UK, especially in respect of Brexit, would be that much different if we had a codified constitution. Political controversy over the use of the power to prorogue the legislature is not exclusive to the UK and the prerogative power of prorogation could have been left unaffected by a codified document, as it was by section 6(1) of the Fixed-term Parliaments Act. If the document embodies the doctrine of parliamentary sovereignty, it will still need to be interpreted. If it embodies the provisions of the Fixed-term Parliaments Act – and, if it does not, what would be the provisions governing general elections and the executive maintaining the confidence of the House of Commons? – we would be encountering the same problems we have at the moment. The Fixed-term Parliaments Act demonstrates some of the problems of translating constitutional conventions into hard legal form, in this case, statute, but it would be exactly the same with a codified constitution. Arguably, it would be worse in terms of effect, in that problems could not be so easily rectified if the document is entrenched.
Advocating a codified constitution appears in many respects displacement activity. It avoids addressing the actual messy and serious issues we face. Politicians who advocate it are basically denying responsibility for their actions in dealing with current issues. ‘Not my fault, we need a written constitution’. There is also an intrinsic conundrum. Pressure for a codified constitution derives in part from current conflicts. The very fact of the conflicts make it difficult to see how one will reach agreement on everything to be included. What provision do we make for referendums and fixed-term Parliaments? And it is what is left out that leads to conventions and practices developing.
Advancing the merits of a codified constitution against the demerits of an uncodified one is to skew the discussion. The merits of one have to be set alongside the merits of the other. Sir Sidney Low, in The British Constitution in 1928, wrote: ‘In England we often do a thing first and then discover that we have done it’. We are in danger of rushing in to craft a codified constitution without thinking through the consequences. If we then find we have done it and made a hash of it, there is little we can do to correct the situation.
I have argued the case before that we do not need a constitutional convention to tell us where we should be going. We need a constitutional convocation to make sense of where we are.