Towards a Written Constitution?

Examination candidates are quite frequently invited to consider whether the United Kingdom needs, or would benefit from, a written constitution.

The apparent simplicity of the question is, of course, deceptive and candidates who merely offer a subjective response such as the man on the Clapham omnibus might give are unlikely to be graded highly. In tackling the question, a thoughtful answerer would consider not only what a
constitution is, but what a constitution may be for, and would treat with some scepticism the
implication that the British constitution is “unwritten”, when its sources are, in different ways, found in writing, and not merely in oral traditions or the pronouncements of oracles.

The prospect of developments leading to a documentary constitutional model was briefly floated in a Green Paper from the Government in 2007, when Mr Gordon Brown was Prime Minister, and
constitutional reforms, particularly affecting the royal prerogative, were in contemplation (The Governance of Britain, Cm 7170). However, it was prudently conceded that such a process would be far from straightforward.

More recently, the challenge has been taken up in an exploratory way by the Political and
Constitutional Reform Committee.

Like other Select Committees of the House of Commons, this group is cross-party, composed in roughly the same proportions as political parties are represented in the House. The chairman is a Labour MP, Graham Allen. Under his chairmanship, the Committee has chosen to inquire into some very specific topics, such as Parliament’s role in conflict decisions (HC 892, 2013-14). However the Committee has also been engaged in a longer term project in considering the path to codifying the British constitution, if that were to be attempted. The Committee uses the term, “codified
constitution”, incidentally, rather than “written constitution”.

The Committee’s Second Report of this session, rather debatably entitled “A new Magna Carta?”, was published in July (HC 463, 2014-15), and functions also as a consultation paper. Views are invited on the merits or otherwise of codifying, by 1 January 2015. There is even a competition, to write a 350 word preamble to a constitution that should, according to the chairman, be “rousing, ringing, inviting and short,” with prizes promised for entrants in three categories. The Committee insists, however, that it is not endorsing one view or another on the merits or on particular reforms, but is intent on generating a debate.

For students of public law, there is greater interest to be found in the lengthy Appendix, prepared for the Committee by the Centre for Political and Constitutional Studies at King’s College London,
directed by Professor Robert Blackburn. Here the advantages and disadvantages of a codified
constitution are summarised and enumerated, as gathered from the literature. Here too are three
illustrative blueprints of possible ways to proceed: (1) a constitutional code, that would be sanctioned by Parliament, but would not itself have statutory authority; (2) a Constitutional Consolidation Act, that would be a consolidation of existing laws along with a collection of essential constitutional
conventions; and (3) a codified Constitution, forming the basic law of the state.

It would, no doubt, be possible to quibble with the selections made for, or formulations found in, these models as presented. However, the chief purpose is to inform the debate that it is hoped to
generate by providing illustrative types.

A compilation assembled from constitutional sources could certainly be convenient, and would
probably adduce to greater accessibility and, possibly, clarity. In this respect, the first and second blueprints are arguably not so far apart in effects, especially as the second one retains the position that constitutional conventions would be “not enforceable in law” (section 221).

The real contrast presents itself with the third blueprint for potential change. It would require a new and very different constitutional settlement if the United Kingdom Parliament were to be limited by the terms of a constitutional document, as some would like to see. We shall discover in due course whether the Committee’s consultation reveals any strong demand for that to occur. Ultimately,
political events will determine whether the United Kingdom’s constitutional model as it exists today can survive.

1 September 2014

This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support sessions.