Exploring the Constitution
Does Britain need a codified constitution?
In the past this has been something discussed by experts but recent changes to the Constitution have broadened the debate. Gordon Brown, when Prime Minister, raised the issue, the Yes campaign in Scotland made the need for a written constitution one of its arguments, further devolution has raised the constitutional position of English legislation and now the Political and Constitutional Reform Select committee has carried out a consultation on whether we should have a codified constitution.
Arguments for a codified constitution
It would set limits to the power of Government. In Britain, the Executive controls Parliament through the party system and legislation, which cannot be questioned by the courts, can be passed by a majority of one. The Executive also has powers under the Royal Prerogative which do not need parliamentary approval.
The Human Rights Act can be repealed at any time by Parliament and so individual rights are not embedded as in other countries. Governments have removed the right of suspected terrorists to a trial, increased the information that can be collected on individuals and are have tried to insert clauses in some Acts to try to limit judicial review. A written constitution would allow the creation of a British set of human rights, if this was thought preferable to the current European ones.
There is no process of changing the Constitution. Parties have often made changes because it suits them. Labour ended the Conservative majority in the House of Lords by removing the hereditary peers without having a plan for overall reform. Fixed-Term Parliaments were introduced because it suited the Coalition parties despite problems that this may cause in the future. Constitutional change has sometimes been approved by referendum and sometimes not. Changes that have been made have not been related to each other and left questions such as whether the House of Lords should reflect devolution.
The Constitution would be clear and interpreted by an independent judiciary. Citizens would be aware of what the constitutional position was and have more certainty if they wanted to take issues to the courts.
There would be an educational value in people being able to see and read the Constitution.
Arguments against a codified constitution
There is no need to change. More of the Constitution has been written down and areas have been established such as the independence of the Judiciary and a set of human rights. Changes can be made to improve checks and balances, for example, by strengthening Parliament as against the Executive.
The present Constitution is flexible and can easily be changed to reflect new political situations and broader social and economic change. A codified constitution would be constantly subject to interpretation by judges which might prevent new policies – in the United States the new system of healthcare was only declared legal by the vote of one judge on the Supreme Court panel that considered the issue. Some areas should not be dealt with by the courts. Ministerial Responsibility to Parliament is a key constitutional convention but it would not be appropriate for the courts to rule on whether a Minster’s answer to a Parliamentary question was adequate enough to meet a constitutional provision. The Constitution has been able to adapt to the changes needed to cope with a Coalition Government.
If the constitution was codified there are two options, one is to write down what the current constitutional rules are now and another is to produce a reformed constitution that deals with current uncertainties. Either method is difficult, particularly as there are profound divisions among politicians over the European Union, reform of the House of Lords, the English Question, the Human Rights Act and the electoral system. Even if the constitution included parliamentary sovereignty as a principle, once there is a codified constitution, judges would be bound to assess Acts of Parliament against the Constitution.
A codified constitution would shift power from the democratically elected House of Commons to the unelected Judiciary. Constitutional crises are best sorted by politicians and democratic pressure can create the demand for changes as with the Scottish referendum.
clearly the most important, especially given the Constitutional changes that have been carried out by legislation since 1997. Statute Law replaces common law as it is introduced and now covers the following key areas:-
- The Bill of Rights 1689 established Parliamentary Sovereignty which Dicey’s influential book of 1885 said was one of the two principles of the British Constitution
- The Representation of the People Acts and, more recently, the Parties, Elections and Referendums Act, 2000 and the Fixed-term Parliaments Act 2011 set out who can vote and the rules for elections and parties
- The European Communities Act 1972 establishes Britain’s relationship with EU institutions and makes EU law superior to British law.
- The Human Rights Act 1998 creates a clear set of rights in British Law for the first time
- The Devolution legislation defines the areas of responsibility for the devolved assemblies as against Westminster and has made Britain a partly federal state
These Acts set out a large number of the areas that a written constitution would contain. They can, however, be changed by a future Parliament with just a majority of MPs present voting for the change so they are not embedded in the way that other constitutions, which require special procedures, are. It is becoming accepted that constitutional changes require approval by the electorate but not all proposals have been subject to a referendum.
The Common Law has declined in significance but still contains important aspects of the constitution:-
- The rule of law which was Dicey’s second essential principle of the British Constitution underpins common law as it has been developed by the Judiciary. No one is above the law and all have access to justice through the legal system.
- The judges have created a process of judicial review of decisions by public bodies with a set of rules as to how cases should be decided.
- The royal prerogative is the part of common law which defines the powers of the Executive, which it can exercise without Parliamentary approval, and include areas such as the declaration of war.
These areas of common law have been created by judges through deciding cases before them and are different from judicial interpretation of Acts of Parliament by which the judges use statute law to decide cases. Increasing judicial independence may mean that judges use principle of the rule of law to challenge Legislation and Government attempts to change the Constitution more often.
Constitutional conventions are rules that are accepted by the key figures in the political system. They mainly regulate the role of the monarch, the appointment of the Prime Minister and the role of the Cabinet and Ministers. The Salisbury Convention defines when the Lords can reject or delay legislation that the Commons wants and the Seward Convention requires the Scottish Parliament to be consulted on Westminster legislation affecting devolved areas. It could be debated as to whether conventions are part of the constitution as they do not have the force of law and can be ignored if political circumstances make them inconvenient.
Authoritative works may occasionally be consulted by judges to help them to interpret the law in relation to the constitution.