The Political and Constitutional Reform Committee of the House of Commons has published a report, A new Magna Carta? asking whether the UK needs a codified constitution. It identifies three options: a non-statutory constitutional code (akin to the Cabinet Manual), a Constitutional Consolidation Act, and a written – by which it means an entrenched – constitution.
The report is neutral on the options – it identifies the arguments for and against and invites submissions. However, the chair of the committee, Graham Allen, supports a written constitution and I was on the BBC Daily Politics programme yesterday to debate the issue with him. The debate is essentially about what a constitution is designed to achieve. Some see a constitution as a means of enshrining particular values and constraining public bodies and majority will (negative constitutionalism) while others see it as a means of ensuring the will of the people prevails (positive constitutionalism). Research commissioned by the committee contends that the existing uncodified constitution ‘fails to give primacy to the sovereignty of the people’. That is questionable and no basis for implementing a reform that would enshrine values above the will of the people. Under our system, the will of the people can be expressed through Parliament – we are closer to a system of positive constitutionalism than are advocates of an entrenched constitution.
Given that a constitution enshrining particular values would require interpretation, and entrenchment would put its provisions beyond the reach of a simple majority in the two Houses of Parliament, we would witness political issues being resolved through a judicial rather than a political process. There is an argument for that, but I believe in a system where political issues are resolved through debate by those elected to represent the people. If people disagree with the outputs of Parliament, they can lobby for a new law to change the situation. If Parliament is deficient as a medium for expressing and defending the interests of electors, that is a case for reforming Parliament, not an argument for an entrenched constitution.
Discussing a codified constitution is, in my view, something of a distraction from addressing flaws in our current arrangements. And, ultimately, the most powerful protector and constraint is the political culture.