Is Britain moving towards a codified constitution? Why?

Rachel Pace

A constitution can be defined as the set of rules, legal and otherwise, which defines, describes and regulates the structure and operation of the state, its institutions, activities and officials. (T. Wright). Its primary concern is for the rights of citizens as individuals, and to protect from possible usurpation of the powers of the state. Britain’s constitutional basis is almost unique in that it is not contained in one written document as it is in most of Europe, but instead derived from a number of sources written or otherwise such as common law, statutes, and authoritative commentaries. Although this system of governing has worked well for over three hundred years the general feeling is that we are moving into an era of major constitutional reform. What is yet to be determined is whether this will result in the documentation of the constitution or if Britain’s history of piecemeal reform will continue into the future.

The argument for a codified constitution has developed from tensions between the idea of legal or parliamentary sovereignty in contrast to the philosophy of political and democratic sovereignty. As the notion of democracy and the protection of liberties have become paramount to recent developments there has been widespread concern over the opportunity for governments to abuse the sovereignty of parliament in extending it own existence by abolishing elections or disenfranchising its opponents, discriminating against citizens on any racial or other basis. Recent events in history have illustrated the ease with which this can be achieved under an uncodified constitution: the end of the Weimar Republic and the ensuing tyranny by Hitler is such an example. However, the underlying impetus for such a drastic change has nearly always been a political revolution of some sort; Britain has never experienced such a break in the status quo.

The growing concern over the supremacy of parliament, and its right to make or unmake any law whatever (Dicey), has arisen from the relationship between the courts and Parliament. Unlike in countries such as America and France, Britain has not adopted the process of judicial review, whereby legislation can be deemed unconstitutional and overruled. In effect, parliament has no limits to its power; (Wright) international law, natural law or law of God does not bind it. Thus, no parliament can bind its successors and no constitutional change can be entrenched. Scottish jurists have argued that since the union of 1707, parliament has not had the right to this sovereignty, particularly in relation to Scotland, as the sovereignty of both states was carried forth. The belief that the sovereignty of Westminster does not hold in Scotland serves to strengthen the case for codification of the constitution to protect their civil liberties, especially now that devolution has occurred.

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Why the debate over Britain’s constitution is currently receiving so much attention is largely due to the coming together of a number of political issues that have been developing over the last thirty years. Britain’s increased involvement in Europe, where codified constitutions are the norm, has led to the view that we are out of step; and the reaction against the fundamental changes to the existing social and political system such as the community charge and the Trade Union Acts by the government of the 1980s, have both reinforced today’s debate over the issue. It may also be argued that public concern over the magnitude of power wielded by the large majority government during the Thatcher years has been renewed with the landslide victory by the Labour Party in 1997. The lack of opposition in the Houses of Parliament has to certain extent undermined the natural checks and balances of the British system, creating an overtly powerful government which the courts cannot contest. However, for a codified constitution to come into practice it must have the support of the judiciary as they would become the guardians of the constitution. In the current climate this is unlikely.

Arguably, a significant step towards a codified constitution has been made as the resulting impact of Europe on British parliamentary sovereignty. As we have become more and more integrated with Europe there has been an acceptance of legislation emanating from the EU. De facto, those parts of the constitution have become codified in order to establish conformity across the states of the European Union. The battle for ratification of the Maastricht Treaty blew up much discussion over the concept of sovereignty for Britain and although it remained in theory, the creation of pooled sovereignty (Wright) certainly had implications for Britain’s constitutional debate. The decision making power of parliament has been moderated and negotiation with other member countries of the EU often becomes principal to new policy. For instance, cabinet’s ultimate control over foreign policy and its supremacy in a declaration of war will be severely limited should an EU army be established under agreement with Britain. Moreover, if this were to evolve, there would almost certainly be need for a written document to define the rules and regulations surrounding its implications on foreign policy. Following this, there is the plausible argument that if there is ad hoc creation of documents within the context of Europe, surely Britain should take this opportunity to codify our entire constitution.

The case for a codified constitution has also been furthered by our incorporation of the Human Rights Act into domestic law. This has, to a limited extent, politicised the judiciary and is a major development in British constitutional law. Although they still cannot invalidate legislation they can declare it incompatible with ECHR and offers the opportunity for remedial legislation. Thus, it would take less of a shift in political thinking for a codified constitution to be adopted now in contrast to previous eras. However, for this to happen in practice it would require considerable backing in parliament which has yet to be achieved. As Lord Irvine has highlighted, the present government’s desire for reform can still take place within the existing framework of an unwritten constitution. The impact of the ECHR does not undermine the supremacy of parliament nor does our increasingly European outlook as the rule that no parliament cannot bind its successors still applies, with the continued ability to repeal any piece of legislation or treaty agreed within the EU.

Another aspect in the debate for codification is disquiet over the role and privileges of the monarchy. This issue is forbidden from discussion in any official forum and has caused some contention even from MPs. Although there is no guarantee that codifying the constitution in the current climate would alter such rules it has still become one impetus for change as it provides an opportunity to challenge certain features of Britain’s parliamentary system.

It cannot, however, be assumed that Britain’s system of government is failing to protect democracy and that a move towards a codified system of government is the only solution to the problems discussed. The application would encounter many legitimate hurdles such as the issue of the suitability of judges to become politicised and the nature of their appointment. Would it not further limit democracy if the unelected judiciary were allowed the power to make decisions on fundamental issues, setting aside the will of the elected Parliament? To prevent possible abuse of such authority Britain would have to consider a system of election as they do in the USA. But even this has its associated problems: it is often purported that court rulings in America have become based on public emotion as the judges fight for re-election (eg. case of Louise Woodward). As Griffith notes, it is also important to consider that the interpretation of what is in the public interest and therefore politically desirable is determined by the kind of people they are and the position they hold in society. Often judges are considered to be of aristocratic and conservative background, educated at public schools and out of touch; if there were truth in this, the power granted by a written constitution would not be favourable to the socially broad society in Britain.

There is also strength in the argument that not only do the constitutional conventions provide the necessary restrictions on the power of parliament but also they are flexible, adapting to changes in politics, and thus codification of the constitution is unnecessary. The conventions are the informal rules or practices which relate legislation to the practical realities. Although they are not binding upon parliament they are generally accepted practices by which the government adhere to. Examples of conventions could be: the need to allow for the representation of the minority opposition groups in almost all areas of parliament so as to restrict the potentially unlimited powers of a majority government, and the accountability of government action to the general public through parliament. As always though, there is a limit to its effectiveness in protecting democracy: it would be unconstitutional for the…Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper… but this does not mean that it is beyond the power of Parliament to do such things. (Lord Reid).

In conclusion, although it may appear that Britain is moving towards a codified constitution it is difficult to imagine that such a departure from the current approach to the constitution would ever take place. Is it realistic to imagine parliament using their supremacy to give up their sovereignty in the calm of current British politics? And how would the content of this document be decided upon? The arguments may be compelling but the application too problematic for it to be a realistic choice.