In the past, the existence of a competitive two-party system, with its implicit disciplining effect, independent groups sharing elite values and traditions, and a broad political consensus may have made constitutional safeguards seem unnecessary. Party competition, elite culture and abroad political consensus had provided some insurance against the abuse of power.
However in 1976 Lord Hailsham pointed to the worrying potential for dictatorial government to emerge on the back of the absolute sovereignty of the Parliament. It is a winner takes all system.
In the 1980s Labour was not in a position to be a strong opposition to the Tory government. Party competition was effectively non-existent. Thatcher’s extreme policy agenda such as imposing broadcast bans, denying trade union membership to GCHQ employees or abolishing tiers of local government posed the question who actually secures the extent of what government may do.
Tocqueville said in “Democracy in America” (1835) that the British constitution may change continually or it does not exist at all either/or because legislator and Constitutional Assembly are one. This illustrates the fact that nothing stops Parliament to enact what it deems willing to enact. So for example Parliament was able to be effectively downsize its major checker and political opponent the House of Lords with the 1911 Parliaments Act. It also may extend its life time, decide to introduce referendums, devolve powers, create or abolish local governments or to interfere in the constituents of the House of Lords. The House of Lords, the second chamber, which is usually deriving its strength from its independence of the other chamber, is subject to arbitrary reforms of the Commons. The Greater London Council refused implementing Thatcher’s reforms has been simply dissolved. Legal certainty and serious checks and balances cannot said to be an impediment to the government if it wishes to enact legislation abolishing such.
The cry for constitutional change, famously manifested in Charter 88, became a pressing issue. A better political system which would produce a more representative House of Commons, protect citizens against arbitrary government and bring the UK into line with other western democracies were the core parts of constitutional reform. However a written constitution has not been claimed. But as all laws enacted are equal and equally to change, the only way to give human rights and civil liberties the status of eternity is to have hierarchy of laws or a constitution. Britain has no concept of fundamental or entrenched rules but haven taken pride in the flexibility provided by their unwritten constitution. Strict adherence to the doctrine of parliamentary sovereignty is essentially incompatible with genuine constitutional principles. A written constitution is likely to increase the political role of the courts and the possibility of their coming into conflict with parliament as they would have to decide whether statutes infringed the constitution. A judicialisation of politics and politicisation of the judiciary would increase. A written constitution would need a constitutional court, which would override parliament. This would change the face of Britain’s polity fundamentally. The Human Rights Act of 1998 was a way to achieve the cementing of civil liberties in a British fashion.
The adoption of a written constitution might well challenge many traditional assumptions about the conduct of British politics. The political elite has managed to operate without a formal constitution in large part because the informal rules were widely understood and governments practised self-restraint and respected the rights of other groups including the opposition in parliament (c.f. introduction of Standing Committees). There was a political style, which was constitutional without being based on law. In many countries with a roman law background the political culture is more legalistic and based on formal rules. In the UK the tradition has been more one of laws following behaviour rather than behaviour following law. Lenin said that if the Germans were thinking of starting a revolution in the train station it would first buy a ticket allowing them to enter the platform.
A merit often claimed for UK unwritten constitution is its flexibility. Yet this flexibility is exactly what is of concern of the present system. The British constitution is largely what the governments of the day says it is. Some of the legislative changed affecting the constitutional issue in Britain have been controversial and politically divisive. So for example the extensions of the suffrage in the 19th century, reforms of the Lords 1911, partition of Ireland in 1921, Irish Home Rule, entry to the EC and the proposal for Scottish devolution were constitutional changes emerged through conflict rather than by general agreement. Changes in conventions tend to be more gradual though and only regarded as binding after the passage of time, like the convention that the Prime Minister is a member of the commons or that the monarch acts on the Prime Ministers advice on political matters. However even this is not always true as the convention of Cabinet Responsibility has been lifted several times.
In fact different aspects of the British Constitution may be identified, but putting them into a written document would be difficult as different interpretations of the British constitution conclude different aspects. So for example a Victorian or authoritarian interpretation differs from a liberal or Whitehall view of the British constitution.
However but what are the most important rules of Britain’s polity? Even if one would agree that Cabinet is the centre of power, that there were a strict and proper line of accountability, compromise were not part of British political culture, lack of checks and balance, proportionality only existed in lay magistrates, public opinion and interest groups do not render a moral obligation to government to listen to them, rigidity a virtue and flexibility a vice, government is central and omnipotent, cabinet is accountable to parliament only, the Prime Minister is the focus of power, elections take place every few years, all this still does not answer questions of the role of the second chamber, the role of Scotland, the role of local government etc.
In fact one does not even know what actually to write in a constitution. Different drafts and articles revealed different priorities and reflected different political ideologies (Lord Hailsham, O Hood Phillips, MacDonald Constitution, Tony Benn, IPPR…)
Also the historically unprecedented constitutional reform package Tony Blair implemented puts the face of Britain’s polity in a new light. So even the major historically evolved elements now seem not to be eternal. One could say Blair confused or messed up Britain’s polity fundamentally, which makes further changes and patchworks necessary to prevent harm to the polity. So for instance the devolution to Scotland took power from London, but Edinburgh still needs the grant from Westminster. A future Tory Westminster will then be in conflict with Labour Edinburgh. Further leverage has been taken with the Greater London Authority Act of 1999. Edinburgh, Cardiff and London are now all influencing peoples daily life. Political careers can now start from these places. The setting of interest rates has been handed over to the Bank of England. Sovereignty has been de facto given up. In Ireland in the light of the Good Friday Agreement of 1998 a new political culture with proportional representation has been introduced. A clear line of authority and responsibility is not given anymore. Local voices are now being heard in the British system. All this are changes to the body politic of Britain. The traditional doctrines are not always of relevance anymore - central and sovereign. Before one might want to cement Britain’s polity into writing it is necessary to know how the new Britain shall look like. In the spirit of Tocqueville (see quote above) Britain is in a permanent state of change. Putting Britain in a written document would only document the state of Britain at the time of enactment.
In fact it would “lock (Britain) in a particular set of arrangements, which may the best available at that time, but may be later judged inappropriate and then may be very difficult to change”.
Barriers to overcome are also political in essence. A large measure of agreement is essential so the constitution is regarded as above party politics. Presumably one would establish a Constitutional Commission which would hand in a document being subject to a referendum or unanimous vote in the Commons and the Lords. Yet many of the possible topics for inclusion such as the right to belong to a Trade Union or not, parental choice in education, private health care, referendums, the voting system, the existence and role of a second chamber have been highly politicised. Also parliamentary timetable for such manoeuvres are very time consuming and not a priority. Major’s government spent two years battling the Maastricht Bill through parliament. Also governments have little incentive to introduce any reform which might constrain their own powers or undermine their authority in office.
It is unclear what the constitution of Britain is. It is in a permanent change and only some vague principles remain the same. The details and the flesh to this skeleton is given to it in daily political life. This gives Britain the flexibility it praises. Pouring Britain into a written document would merely document what Britain is at the time it enacted the document. A snap shot. One would have to draft a constitution which would be so vague and general to comprehend the vague principles, that the document would be useless. It also would be an attempt to foresee the future of Britain, which is not the nature of Britain’s polity. Parliament reacted on a daily bases to new developments, thus the nature of the constitution. An attempt to foresee changes is impossible. Thus a ever flexible and changing constitution is more honest, pragmatic and realistic. Britain is not in the unfortunate situation of war torn society which has give itself an agenda which way it wants to go in the next decades. A snap shot and written document both distort the picture of Britain and impedes its will to change. Change is the route to find the truth. Without the chance of change one lock itself to something one might later disapprove. However the Gentlemen of England do not exist anymore or never existed, which might make a sort of priority of Human Right Laws, which may only be changed with a super-majority in both houses and checks on the Government necessary. However, the UK never faced any major dangers, which were comparable in nature to the 1933 incident in Germany. The whole discussion of a written document is thus (fortunately) not politically relevant
Bibliography
Lord Scarman; Why Britain needs a written constitution.; C.L.B. 1993, 19(1), 317-323
Rodney Brazier ; How near is a written constitution?; N.I.L.Q. 2001, 52(1), 1-19
Walter Cairns; Does a written constitution require a constitutional court?; Bracton L.J. 1998, 30, 13-22
Dawn Oliver; Written constitutions: principles and problems.; Parl. Aff. 1992, 45(2), 135-152
Rodney Brazier; Enacting a constitution.; Stat. L.R. 1992, 13(2), 104-127
Jutta Limbach; The Concept of Supremacy of the Constitution 2001; 64 MLR 1
Dennis Kavanagh; British Politics Continuities and Change;
Collin Turpin; British Government and the Constitution 2002;
Anthony King; Does the United Kingdom still have a Constitution? 2001;
Robert Hazell ; Written constitution for the United Kingdom.; P.L. 1994, Sum, 323-325
Limbach, Jutta “The Concept of Supremacy of the Constitution”
Gamble, Andrew 1999 Fundamentals in British Politics p.26; Turpin p.662
