Discover The Facts

Do We Need A Written Constitution?


This section contains non-partisan factual information about the question: "do we need a written constitution? ". It has been compiled by the site editor and is updated periodically. It cannot be re-edited by site users. If you believe any of this material is factually incorrect or politically biased please contact the editor.

Key Questions


What is wrong with the British constitution as it stands?

Some argue that the very fact that we do not have a written constitution is one of the defining features of Britain as a nation.  Our constitution has evolved over hundreds of years with a flexibility that has enabled us to accommodate social and economic change.  


Has the absence of a written constitution allowed the Executive to become too powerful?

It can be argued that for most of the twentieth century there was an unofficial understanding between members of the political establishment that the government of the day would not tinker with constitutional arrangements for short-term or self-interested reasons: changes to the Constitution would only be made after a period of consultation and with broad cross-party support.  This consensus has been eroded over the last thirty years. 

In contrast to their predecessors neither Thatcher nor Blair – both iconoclastic leaders with large parliamentary majorities – felt themselves constrained by precedent or evolved practice.  In contemporary Britain, the government of the day does not see the need to draw any distinction between changes to the constitution and changes in, for example, health or education policy.  The players in the political game can change the rules of the game itself, and regularly do so, in a way which is not possible in other developed democracies.

Now that the UK is operating under a Coalition Government it has been interesting to see what impact having two parties forming the executive has on executive government. It may take some time, and a number of memoirs and leaks, before we understand fully the character of the Coalition, but it seems to be the case that substantial constitutional reform remains realtively easy for the executive to achieve.

 

Would an entrenched written constitution curtail parliamentary sovereignty?

Under our current system, Parliament – meaning in practice the government of the day – can pass any law it likes.  There is no ‘higher law’ which limits the scope of new legislation.  If a written constitution was entrenched so that it could not be changed as easily as ordinary law, then the government’s power is unavoidably restricted. Should changes to the constitution require a Parilamentary 'supermajority' (e.g. 66% or 75% rather than 51% to pass) then Parliament would remain sovereign by law, but in practise would not be able to pass certain legislation, due to the party divide. Parliamentary sovereignty therefore might remain in principle without being fully operable. On the other hand, should changes require some external method of confirmation, such as a referendum, Parliamentary sovereignty would be severely curtailed.


Would a written constitution give judges a political role?

That seems unavoidable.  If we had an entrenched written constitution, a procedure – independent of parliament and government - would be needed to determine what was ‘unconstitutional’.  In most other countries with written constitutions, those decisions are made by a Supreme Court.  An entrenched constitution is unavoidably ‘undemocratic’, because it allows unelected judges to strike down a law which has been passed by elected politicians, even if that law was part of a manifesto committment. Something like this situation can already occur in the develoved regions, since the Supreme Court of the UK can overrule the governing assemblies with reference to the terms of devolution legislation - a written constitution would then grant the Supreme Court the power to overrule Westminster.

 

How could a written constitution be effectively entrenched, so that a future government could not overturn it?

There are various ways that other countries entrench their constitutional provisions, for example by requiring a two-thirds parliamentary majority or a referendum to endorse constitutional amendments. 

Some constitutional theorists worry that a written constitution cannot be effectively entrenched in Britain, because there is an unassailable principle at the heart of the constitution that Parliament is sovereign, and that the power of future parliaments to repeal existing laws cannot be curtailed.  However, other countries which previously had informal constitutions have successfully made the transition to a written constitution.  Canada is one example. More

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Prior to 1982, the Canadian constitution — the British North America Act 1867 — could only be amended by requesting the UK Parliament to pass an act to amend it.  In 1982, after long negotiations between the federal and provincial governments, and consultation with the Canadian public, the British North America Act was ‘patriated’ (made subject to local control) and renamed the Constitution Act 1982.  The Constitution Act was made subject to a complex set of amendment procedures, which in effect entrenched the Constitution Act.  The Constitution Act can now only be amended in accordance with the amendment provisions laid out in Part V of the Act: the process to be followed depends on the kind of proposed amendment, although the ‘default’ procedure requires the consent of a simple majority of the Canadian House of Commons,the Senate, and a two-thirds majority of the provincial legislatures representing at least 50% of the national population.  A popular referendum in every province may also be required.

In any event the argument is a theoretical one: ultimately the locus of sovereignty depends on consensus, not law, for Parliament draws its legitimacy from the people.  Nonetheless it is likely that, once a written constitution was in place, it would become politically impossible for any future government to overturn it.

 

For videos of a debate on this issue, click here.

 

Section last updated May 2011

What you need to know


Unlike many other western democracies, Britain does not have a written constitution, but instead has a mixture of institutions, statutes, conventions, customs, judicial decisions and treaties which together make up our constitution.  It is argued by some that the UK ought to have a written constitution in order to bring us into line with other nations, and indeed there has been substantial discussion on the issue.  Others think that there is no need to change a system which has functioned more or less satisfactorily for hundreds of years.  In this section we examine what the creation of a written constitution would mean.


Why does it matter?


The process of writing down a set of rules or conventions which have been previously unwritten will necessarily involve some editorial input.  This may, either deliberately or unintentionally involve the introduction of changes into the way in which we are governed. Furthermore, the existence of a codified constitution would inevitably change the way Parliament behaves.


What are the key facts?


The writing down of our constitution could be achieved in a number of ways.  Two of the routes used for this would be:

  • To codify the constitution: this would involve writing all the key aspects of our constitution into one document.  This could be achieved in the form of an ordinary statute passed by Parliament.
  • To entrench the constitution: this would involve not simply codifying the constitution, but additionally making the constitution subject to a special amendment process, making it difficult to change without a high degree of consensus.

 

 

General arguments for and against a codified constitution

The arguments for a codified constitution include:

Consolidation and clarity: A codified constitution would make the fundamental framework of government clearer.  A key characteristic of the British constitution is that so many of its rules are ‘unwritten’, informal or just shared understandings—as a result the legal constraints on the government are often fragile.

The educative function: Currently, the fundamental laws of the state are not easily found, let alone understood by most people.  The citizens of a nation need something they can easily turn to for reference, a standard by which they can judge the actions of their governments.

The symbolic function: A codified constitution can provide a statement of values around which Britain can unify itself.

Less technical and less controversial than an entranched cnstitution: It may be easier to enact an ordinary statute which does not threaten Parliament’s supremacy and which can be easily revised.

 

Arguments against a codified constitution include:

Ease of change: A document containing the fundamental laws of the nation must be subject to amendment - if it is easy to change the document, then it will be constantly rewritten and lose athority, if not, a new set of difficulties are opened up (see below re. Entrenched Constitutions)

Unnecessary: Why codify at all, when our informal constitution has functioned well until now?

The risks of symbolism: Creating a symbolic document might not be so easy, and might even open up areas of sensitivity or insoluble division.

 

General arguments for and against an entrenched constitution

Several of the arguments in favour of and against a written constitution apply here.   

In addition, the arguments in favour include:

Constitutionalism—holding government accountable: The enactment of a written constitution would mean that Parliament is no longer supreme. Government action and statutes passed by Parliament conflicting with the constitution could be struck down by the courts as unconstitutional.  This would temper the ‘tyranny of the majority’ and protect racial, sexual, social and other minorities.

Certainty: A key characteristic of the British constitution is that so many of its rules are ‘unwritten’, informal or just shared understandings—these can be easily changed by a determined government.  An entrenched constitution would make the fundamental framework of law-making more difficult to change.

 

The arguments against an entrenched constitution include:

Judicialisation: An entrenched constitution will encourage judges, as interpreters of the constitution, to make decisions on political matters.  This seems undemocratic: it does not seem right that the unelected, unrepresentative judges can strike down legislation created by the democratically-elected Parliament.

Loss of flexibility and obsolescence: One of the advantages of British government is its flexibility: it can respond quickly to social, economic and political change. But an entrenched constitution may make this difficult.

Unnecessary: Any attempt to entrench Britain’s constitutional order may divide the country rather than unite it.  Moreover, new constitutions are usually created to mark the beginning of a new nation-state—this is not necessary in the UK’s case.

 

Problems surrounding the creation of any sort of written constitution

There are two major practical issues in enacting any kind of constitution, as Vernon Bogdanor has pointed out. What should be the content of a new constitution, and who should determine this content?

What should a constitution contain?

This is a problem for both codified and entrenched constitutions. There are ‘core’ elements of commonly accepted content for most of the world’s existing constitutions:

  • A preamble: a statement of values which all members of the nation agree to
  • A statement of the key government institutions, their powers and structures, and the relationships between them
  • In federal states, a statement of the distribution of powers between the federal government and the state governments
  • Often a declaration of citizens’ rights
  • An amendment procedure

 

Beyond this, constitutions vary widely in content. Should matters such as electoral systems, social and economic rights, or constitutional conventions be included? More

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  • the electoral system and social and economic rights are not mentioned, for instance, in the US constitution.
  • Cabinet in British-style constitutional arrangements is the key decision-making body in government; but in the Australian, Canadian and New Zealand constitutions, no mention is made of it.
  • constitutional conventions: these are practices which are considered to be binding on key political actors. For instance, although bills to become legislation must be presented to the Queen for her assent, by ‘convention’ she is bound to assent. More controversially, under the Salisbury convention, the House of Lords will not refuse proposed legislation set out in the government’s electoral manifesto.  Should these be included in a written constitution?

Who has authority to decide the content of a constitution?

Initially, experts may have to draw up a draft constitution, and guide those who debate it.  But the legitimacy of a written constitution is important: the people must accept it.  One answer is a constitutional convention, where either directly or indirectly elected representatives could come together to debate the constitution.  Once a draft has been agreed upon, the people need to ratify, probably in the form of a referendum.

Who should have the authority to amend a constitution once it has been ratified?

Should a written constitution be open to amendment by Parliament or also by the direct support of the electorate (through a referendum)? More

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It is quite common to require approval to be by a ‘super-majority’ of MPs: that is, to succeed a vote would require approval by two-thirds or three-quarters of members, rather than just a simple majority.  Some constitutions, like the Australian constitution, require a referendum before changes are allowed.  There is a need to find a balance between making a written constitution flexible enough to respond to real change, and rigid enough to ensure that it is not subject to the ‘temporary passions’ of Parliament or the people.

Writing down 'unwritten' practises does not have to involve change

The process of writing down a previously unwritten constitution does not necessarily require that the constitution be fundamentally changed.  However, many view the process of writing down as an ideal opportunity to reflect on the value of wholesale constitutional changes.   Others may regard writing down as an opportunity to ‘clear up’ areas where they believe that there are  anomalies or vagueness.  Many arguments for changes in specific areas can be found throughout this website.

 

Practicalities of agreeing and drafting a written constitution

Drafting and agreeing upon a constitution would be a difficult process in itself.  Initially, it might be necessary for experts to set out a broad framework.  There are various options, including a ‘citizens’ assembly’, a convention involving all the political parties, a convention of elected representatives, and so on. Popular sovereignty requires that the final draft, however, should at least be ratified by referendum.

 

The classic example of how a constitution has been drafted and enacted is the Constitutional Convention held in Philadelphia in 1787, which ultimately produced the US Federal Constitution.  Initially established to revise the Articles of Confederation, the Convention consisted of delegates from the various states.  Over a period of four months, delegates worked to replace the Articles with a better model and form a stronger national government.  Deliberations were kept secret to allow delegates to discuss matters candidly; and many compromises, such as the agreement to give slaves reduced representation, were made.  After a draft had been agreed upon by all delegates, it was then ratified by conventions of the various states.

 

One example closer to home is the Scottish constitutional convention which met from 1989 to 1995.  Established after the signing of the Claim of Right in 1988, the Convention met to discuss an appropriate form of home rule for Scotland.  There was broad participation from various groups, including some of the political parties (both the Conservatives and the Scottish National Party declined to take part).  It was funded by local government.  Ultimately, the Convention proposed a Scottish Parliament of 129 members, elected by a system of proportional representation.  This Parliament would have substantial powers devolved to it.  The Convention’s work provided the basis for the 1998 Scotland Act.

 

A final alternative is the technical option: a constitution may simply be drafted by officials and enacted as an ordinary statute.  This was done in New Zealand in 1986.  The Act only has 29 provisions, and provides a bare outline of NZ government, covering the composition and powers of key institutions, but gives little information on how the institutions function or relate to each other.  The advantage of this option is that it is perhaps less controversial, because it theoretically could be amended by Parliament.  However, despite the fact that it is easily amendable, the Constitution Act has been amended only twice in the past 23 years.


References and Links


Further reading

- James Cornford (ed) A Constitution for the United Kingdom (Institution for Public Policy Research, London, 1991)

- Vernon Bogdanor The New British Constitution (Hart Publishing, Oxford, 2009)

The Power Report

- Could the Cabinet Manual form the basis of a written constitution?



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