Law and Rights
On 3rd February, Law and Lawyers asked whether it was desirable to have a written constitution - (view earlier post). It is worth revisiting that question given that the General Election campaign is now in full swing. This is a campaign which seems to be concentrating far too much on the personalities of the main party leaders and how they came across in the recent heavily stage-managed television debate. Important issues seem to be ignored in this personality contest which one writer has referred to as "Britain's Got Politics".
Whilst not entirely in the forefront of people's minds, various ideas of constitutional reform are hidden away in the party manifestos. The Labour Party refers to changing how the House of Commons is elected. They offer an "Alternative Vote" (AV) system which would have to be agreed by the people at a referendum. They also favour further reform of the House of Lords which would, after a considerable period, become wholly elected. Further, they state that they will have an all party commission to chart the way to a written constitution though their manifesto appears to fall short of a definite commitment to such a constitution. The Liberal Democrats state that they would - "Introduce a written constitution. We would give people the power to determine this constitution in a citizens? convention, subject to final approval in a referendum". The Liberals also favour a fully elected House of Lords. The Conservative Party does not promise a written constitution but does promise a "Sovereignty Bill" and replacement of the Human Rights Act 1998 with a U.K. Bill of Rights. They favour a mainly elected second chamber to replace the current House of Lords.
It therefore seems that, however the next government is formed, "the constitution" will be on the agenda.
Preparing a written constitution for the U.K. will not be an easy task and, if the task is to be undertaken at all, then somehow its preparation must involve the people and, I would add, particularly young people. The fundamental purpose of a written constitution is that the constitution becomes the fundamental law of the nation. Very important issues must therefore be addressed such as "where does sovereignty lie".
At present, British sovereignty rests with Parliament which, so it is claimed, is "supreme" in that it may make (or unmake) any law whatsoever. Such a position is the very opposite of what a written constitution would really require since a written constitution would need to make Parliament itself subject to the ground-rules of the constitution itself. Without such a basic shift of power, any written constitution would be of very limited value and some might argue pointless.
For a recent and well-argued case for a written constitution I would recommend a reading of "Repairing British Politics: A Blueprint for Constitutional Change" - Richard Gordon QC - Hart Publishing, 2010.
Some will argue that the very doctrine of the Supremacy of Parliament prevents the creation of a constitution in which Parliament ceases to be supreme since whatever constitution is enacted can be unenacted by a later Parliament. This view is a counsel of despair. The Supremacy of Parliament is a power-sustaining device which, as Richard Gordon puts it, "... has never received popular endorsement." It has never been voted for. If a written constitution were to be adopted by popular referendum, the Supremacy of Parliament could be abandoned in favour of a constitution which also bound parliament. The Supremacy of Parliament is also seen by many as actually amounting to a "supremacy of the executive" given that the executive controls much of parliament's business - in effect, the "elective dictatorship" which the late Lord Hailsham warned about.
Of course, any written constitution requires interpretation and this is why written constitutions tend to increase the role (some would argue "power") of the senior judiciary. In the United States there are serious debates about the role of the Supreme Court Justices in interpreting their constitution. Does the constitution permit an "activist" approach or only an "originalist" approach. The advocates of these approaches are Justices Stephen Breyer and Antonin Scalia. A flavour of their debate may be seen at ACS Law. In essence, the activist would seek to apply the words of a constitution to new situations as they arise whereas the originalist would argue that the constitution says nothing about the new situation and it was therefore a matter for the legislature and not the judges.
Are we really willing to give up the idea of parliamentary sovereignty in favour of a written constitution which limits the power of parliament and the executive and which probably increases the role of the judges as interpreters of the constitution?
Addendum: 20th April: Plans to reform House of Lords leaked - see Current Awareness.
Addendum: 21st April: Is first-past-the-post on its last legs - Telegraph 21st April - Vernon Bogdanor
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Writing in the Law Society Gazette 21st July 2014, Joshua Rozenberg takes a look at a report by the Political and Constitutional Reform Committee of the House of Commons. This is a lengthy report of 423 pages - A New Magna Carta? Second Report of...
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Recent years have seen a large number of legal reforms which may fairly be described as "constitutional" in nature. Examples include devolution (e.g. Scotland Act 1998); the setting up of the Supreme Court (Constitutional Reform Act 2005) and placing...
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Law and Rights
Should we have a written constitution? Number 2.
Whilst not entirely in the forefront of people's minds, various ideas of constitutional reform are hidden away in the party manifestos. The Labour Party refers to changing how the House of Commons is elected. They offer an "Alternative Vote" (AV) system which would have to be agreed by the people at a referendum. They also favour further reform of the House of Lords which would, after a considerable period, become wholly elected. Further, they state that they will have an all party commission to chart the way to a written constitution though their manifesto appears to fall short of a definite commitment to such a constitution. The Liberal Democrats state that they would - "Introduce a written constitution. We would give people the power to determine this constitution in a citizens? convention, subject to final approval in a referendum". The Liberals also favour a fully elected House of Lords. The Conservative Party does not promise a written constitution but does promise a "Sovereignty Bill" and replacement of the Human Rights Act 1998 with a U.K. Bill of Rights. They favour a mainly elected second chamber to replace the current House of Lords.
It therefore seems that, however the next government is formed, "the constitution" will be on the agenda.
Preparing a written constitution for the U.K. will not be an easy task and, if the task is to be undertaken at all, then somehow its preparation must involve the people and, I would add, particularly young people. The fundamental purpose of a written constitution is that the constitution becomes the fundamental law of the nation. Very important issues must therefore be addressed such as "where does sovereignty lie".
At present, British sovereignty rests with Parliament which, so it is claimed, is "supreme" in that it may make (or unmake) any law whatsoever. Such a position is the very opposite of what a written constitution would really require since a written constitution would need to make Parliament itself subject to the ground-rules of the constitution itself. Without such a basic shift of power, any written constitution would be of very limited value and some might argue pointless.
Some will argue that the very doctrine of the Supremacy of Parliament prevents the creation of a constitution in which Parliament ceases to be supreme since whatever constitution is enacted can be unenacted by a later Parliament. This view is a counsel of despair. The Supremacy of Parliament is a power-sustaining device which, as Richard Gordon puts it, "... has never received popular endorsement." It has never been voted for. If a written constitution were to be adopted by popular referendum, the Supremacy of Parliament could be abandoned in favour of a constitution which also bound parliament. The Supremacy of Parliament is also seen by many as actually amounting to a "supremacy of the executive" given that the executive controls much of parliament's business - in effect, the "elective dictatorship" which the late Lord Hailsham warned about.
Of course, any written constitution requires interpretation and this is why written constitutions tend to increase the role (some would argue "power") of the senior judiciary. In the United States there are serious debates about the role of the Supreme Court Justices in interpreting their constitution. Does the constitution permit an "activist" approach or only an "originalist" approach. The advocates of these approaches are Justices Stephen Breyer and Antonin Scalia. A flavour of their debate may be seen at ACS Law. In essence, the activist would seek to apply the words of a constitution to new situations as they arise whereas the originalist would argue that the constitution says nothing about the new situation and it was therefore a matter for the legislature and not the judges.
Are we really willing to give up the idea of parliamentary sovereignty in favour of a written constitution which limits the power of parliament and the executive and which probably increases the role of the judges as interpreters of the constitution?
Addendum: 20th April: Plans to reform House of Lords leaked - see Current Awareness.
Addendum: 21st April: Is first-past-the-post on its last legs - Telegraph 21st April - Vernon Bogdanor
- A Constitutional Court For The Uk? A Recipe For Complication, For Cost And For Unnecessary Duplication (lord Neuberger)
Lord Neuberger - President UKSCIn December 2015 the Secretary of State for Justice and Lord Chancellor - Michael Gove MP - attended the House of Lords Constitution Committee - previous post. His evidence was mainly concerned with the...
- A Written Constitution For The United Kingdom? Have Your Say ...
Writing in the Law Society Gazette 21st July 2014, Joshua Rozenberg takes a look at a report by the Political and Constitutional Reform Committee of the House of Commons. This is a lengthy report of 423 pages - A New Magna Carta? Second Report of...
- Lord Chancellor - A Heap Of Anomalies - Part 2
The ancient role of Lord Chancellor - (full title is Lord High Chancellor of Great Britain ) - was the subject of a blogpost of 8th June - Lord Chancellor - a heap of anomalies. It has now been announced that House of Lords Constitution Committee...
- Constitutional Reform ... House Of Lords Inquiry
Recent years have seen a large number of legal reforms which may fairly be described as "constitutional" in nature. Examples include devolution (e.g. Scotland Act 1998); the setting up of the Supreme Court (Constitutional Reform Act 2005) and placing...
- Referenda: Is There A Sudden Conversion To Them?
"Hold a referendum" is a frequently heard cry. In the United Kingdom there has only ever been one national referendum. It was held in 1975 to assess whether U.K. membership of what was then the European Economic Community (or "Common Market")...