Pros and Cons - Debbie Newman, Ben Woolgar 2014

Written constitution
Section I. United Kingdom issues

The ’constitution’ of a country is the set of fundamental laws that lay down the system of government and define the relations of the executive, the legislature and the judiciary. Almost all countries have a written constitution, of which the oldest is the American constitution of 1787. (The Bill of Rights is a set of 10 amendments incorporated into that constitution in 1791.) The UK is the exception in having only a ’virtual constitution’. That is to say, the constitution is not written down in a document anywhere. but has emerged over the centuries as the result of various different agreements, laws and precedents. Important laws that are part of this ’virtual constitution’ are Magna Carta of 1215, the Habeas Corpus Act of 1689, the Parliament Acts of 1911 and 1949 and the Reform Acts passed between 1832 and 1928 to extend the electorate. An organisation called Charter 88 was set up in 1988 by a group who were concerned with what they perceived as the autocratic way in which Margaret Thatcher passed unpopular legislation with small Commons majorities and on a minority vote from the electorate as a whole. Charter 88 argues that a written constitution would safeguard the liberty of the individual against the excesses of an ’elective dictatorship’. The massive majority of the Labour government elected in 1997 and the ’presidential’ or ’dictatorial’ style of Tony Blair led to renewed concerns about the excess of power put into the hands of elected politicians. Vast constitutional changes made by the Labour government (e.g. Lords reform, devolution and signing up to a Constitution for Europe) and mooted by the coalition government after 2010 (e.g. more Lords reform and fixed-term parliaments) show that any government can make radical constitutional changes with no extra checks and balances in place for protection. The Human Rights Act of 1998 passed by the Labour government acts as a de facto Bill of Rights, but could be repealed by any parliament, so does not offer the protection of a constitutional Bill of Rights.

Pros

[1] In countries with a written constitution, the parliament cannot pass laws infringing on the rights of citizens. If it does, the courts can declare the laws illegal. For example, segregation in the USA was ruled unconstitutional by the Supreme Court despite several state assemblies supporting it. Without a written constitution for the judiciary to appeal to, the power of parliament is ultimate and this means that there is no constitutional way for unjust and unpopular laws — such as the Conservatives’ poll tax legislation of 1990, or the ban on beef on the bone and the banning of handguns by the Labour government in 1997 — to be deleted from the statute book. A written constitution provides a check on parliamentary power.

[2] Britain is one of only two democracies in the world without a written constitution (the other, Israel, has spent 50 years failing to agree on one). And since British law is made by governments with minority public support (generally around 40 per cent), it is all the more vital that that minority is not given unimpeded power. Charter 88 was founded in response to the particular excesses of Thatcherism, but a written constitution, including a bill of rights, is needed to guard against all future autocratic parliaments, whatever their political leaning.

[3] Liberal democracy relies on the ’rule of law’, first enshrined in Magna Carta in 1215 in England to guard individual rights against the excesses of the monarch and royal officials. Thus the idea was established that the powers of government must themselves be subject to law. But the British parliament is subject to no authority beyond its control of itself. This is philosophically repugnant and politically dangerous. A written constitution would remedy this situation.

[4] The lack of a written constitution has meant that governments have been free to assault traditions and institutions. The House of Lords was reformed by the Labour government with no clear plan and no clear mandate beyond its parliamentary majority. A written constitution would include further safeguards, such as requiring a referendum or a two-thirds majority vote in parliament. The monarch required a second election to establish a mandate for House of Lords reform in 1911, but with a weaker monarch now, there is no remaining check on a majority government’s power. Other changes such as devolution have been put to a referendum, but with no constitutional requirement for a minimum turnout, only 35.4 per cent of Welsh people voted for this huge and historic change.

Cons

[1] This is a theoretical argument that ignores the facts. The countries with written constitutions have been just as reprobate in their assaults on individual rights as those countries without one. The constitution of the USA was said to allow for slavery and segregation, and today it fails to stop the death penalty — the ultimate expression of the state’s oppression of the individual. In practice, Britain has a very good human rights record — much better than most countries that have written constitutions. Nigeria and Iraq both have written constitutions.

[2] Written constitutions are ruled upon by judges; in Britain, these are unelected and tend to be pro-establishment, if not reactionary. If society is minded to oppress minority rights, the chances are that judges will also be so minded, and will interpret a constitution accordingly — just as racial segregation was said by successive US Supreme Courts in the nineteenth century to be constitutional. It is less desirable to place more power in the hands of judges (whether unelected or elected) than it is to place it in the hands of elected representatives.

[3] Of course Britain does have a constitution, albeit an unwritten and hence subtle one. British history has shown that the convoluted interaction between precedent, convention and the wrath of a vengeful electorate at the ballot box is a more effective check on politicians than any legalistic written formulations.

[4] The British political system was desperately in need of modernisation by the 1990s, and its flexible constitution allowed this to happen. A more rigid, written constitution may have left it stuck with the outdated system of hereditary peers being able to delay the legislation of the elected government. Most constitutional changes are, by convention, put to referendum, and if the public care, they can vote for change (as they did for Scottish and Welsh devolution) or to retain the status quo (as they did when they voted ’no’ to electoral reform in 2011).

Possible motions

This House demands a written constitution.

This House supports a Bill of Rights.

Related topics

Democracy

Social movements: courts v. legislatures

English Parliament

Scottish independence