Wednesday, 3 February 2010


Yesterday the Prime Minister said this:

There is a wider issue – the question of a written constitution - an issue on which I hope all parties can work together in a spirit of partnership and patriotism.
I can announce today that I have asked the Cabinet Secretary to lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.
In the summer I announced that we would consult on the question of codifying our constitution as part of the consultation exercise on the British Bill of Rights and Responsibilities. There is, however, no consensus on what a codified constitution would be for, on what it would encompass and on what its status would be.
But if we are to go ahead with a written constitution we clearly have to debate also what aspects of law and relationships between each part of the state and between the state and the citizen should be deemed ‘constitutional’.  I can therefore also announce today that a group will be set up to identify those principles and i hereby issue an invitation to all parties to be represented on this group.  And if we are to decide to have a written constitution the time for its completion should be the 800th anniversary of the signing of the Magna Carta in Runneymede in 1215.

But what does he mean? Does he mean an Constitutional Act of Parliament which would be subject to Parliamentary sovereignty (like Magna Carta, the Bill of Rights 1689, the Acts of Union/Settlement) or does he mean an entrenched instrument which could only be amended by referendum or by a specified majority in Parliament.  If the latter - can Parliament actually promulgate such an instrument (one Parliament cannot bind the next) - or will there be another British and bloodless revolution by which the Constitution is promulgated by the people by referendum (like the 5th French Republic)?  And will the Supreme Court be able to strike down Acts of Parliament which do not conform with the Constitution (as it can do with Scottish Acts)?  
The best summary of our present constitutional arrangments in to be found in the judgment of Laws LJ in Thoburn v Sunderland.
The supremacy of Parliament died, de facto, when we joined the EU and the idea that the rule of law is satisfied by Judges politely reminding the Executive to comply with the Human Rights Act 1998 by making non-binding declarations of incompatibility makes our present constitutional arrangements laughable.  
Saying that they are quaint and particularly British is no defence.    I look forward to us being a normal western democracy and having an entrenched Constitution.  I do not look forward to another Constitutional Reform Act which keeps the judges tamed and which continues to live in the fantasy land that Parliament is supreme in its sovereignty.  


  1. There is a written constitution all ready to be enacted - lawyers drafted in for the IPPR years ago. I cannot find a copy on the web - but this article describes it -

  2. Obiter J meant to leave this comment here - instead he left it under the wrong item - I repeat it here:

    I doubt that I am alone in distrusting the government’s constitutional change agenda. Politicians are not so altruistic as to do things without keeping an eye on the impact it will have on themselves.

    Consider the Alternative Vote proposal. There are good reasons to suspect that it would deliver greater benefit to Labour than to other parties. See the Report of the Independent Commission on the Voting System – 1998, Cm 4090.

    Their study indicated that the 1997 General Election would have delivered Labour an even greater majority. AV is therefore a long from being a proportional system and could well make matters even less proportional than they are under first past the post. Little wonder then that Labour is suggesting it.

    Just what is the convincing case for a written constitution? What value does it add and will it limit the powers of government? The need for one seems to be the simplistic idea that most other countries have one. IF one is ever to be adopted then it must have clear endorsement of the British people.

    What would it include? It would have to define who is Head of State and what the rights and powers of the Head of State actually are. It would go on to set out the arrangements for an executive; a legislature and a judiciary. It would need to deal with the Armed Forces. Where do you go from there? Would it tie us in to membership of the EU? Would it grant the British people certain rights which could not be altered? If so, what would those rights be? Would it impose duties (responsibilities) on the British people? If so, what would they be? Would it abolish or reform the prerogative powers which can enable a Prime Minister to act like a medieval monarch? Would it alter the functions of the Attorney-General which appear to many of us to be hopelessly compromised in recent years?

    It would have to do all those things without becoming immensely detailed and lengthy. The detail would then, no doubt, be fleshed out in many other Acts. What would be the status of those Acts if, as might be likely, they were to go against the constitution itself?

    In a speech in 2004, Lord Bingham argued that all provisions of a constitution should be justiciable and “not resort to the expression of hopes and aspirations.” Bingham also recognised the need for some form of entrenchment but little more than a requirement for an enhanced majority of both Houses of Parliament or perhaps a referendum. [He did not mention the difficulties of framing referendum questions etc]. He was against the idea of a Constitutional Court which he saw as “alien to our tradition.”

    Thus, we seem to finish up with some document which has to be pretty broad brush so that the detail can be filled in by either other Acts or by judicial decision or by political action. Back therefore to the question: just what benefits flow from that and is there even a danger that the freedom of the individual citizen might be limited by such a document?

    The USA has a written constitution. It hardly stopped the President getting the Patriot Act enacted or setting up Guantanamo Bay so as to put suspects beyond the reach of the normal courts. A written document is not therefore a panacea and we should be very wary of any salesman who is seeking to persuade us to buy one.

  3. I am aware that my comment is rather late and unlikely to be noticed by anyone, but I might as well respond to your point about whether entrenchment is possible.

    One of the key things to remember about the issue of possible entrenchment is that Parliament is free to pass a law that changes its composition. Thus, Parliament could pass a Constitution Act creating a third chamber that consists of the electorate acting by referendum and allow the other two chambers to pass any law that contains as its first provision a statement the statute is subject to the Constitution Act and shall not be construed to amend or repeal any provision thereof. If an Act did not contain any such provision, then it would require approval of the third chamber (the people by referendum) after being approved by the other two chambers.

    Additionally, Parliament is free to abolish itself as such. the English and Scottish Parliaments did so when the Acts of Union were passed. Parliament could pass an act stating a written constitution contained in a schedule would be enacted on a given date and that on such date Parliament would be forever abolished. The constitution could then provide for a new legislature under a new name (or could call the new legislature a Parliament, provided that it clearly indicated that such Parliament was a wholly new creation arising under the constitution and not a continuation of the previous Parliament).