|Magna Carta Memorial, by Karnaphuli / CC BY-NC 2.0|
In honour of the 800th anniversary of the Magna Carta, the United Kingdom is presently considering whether to adopt a written constitution. Of course, the UK has various legal documents that set rules and precedents for government and legislation. There is a Ministerial Code that outlines the duties of ministers and a Human Rights Act that stipulates various rights and freedoms to be upheld. But it does not have a single, formal, codified document encapsulating the essence and dimensions of all these segments. In this post, I outline two reasons in favour of the UK adopting such a constitution.
1) A Constitutional Code, which would outline essential elements and principles of government, but not be legally binding.
2) A Constitutional Consolidation Act, which would bring together the various segments of existing common law and parliamentary practice.
3) A Written Constitution, which would be a legally binding statement of basic UK law, democratic procedure, and the relationship between state and citizen.
What I have in mind to defend is a version of 3 not dissimilar to the draft of this option in the Select Committee Report. I think there would be value to the UK adopting a document which details certain core existent and aspirational principles of governance – “liberty, equality, tolerance, and the rule of law” are the draft’s specification (on p.285) – and delineates their manifestation in various rules – such as the rights to life, security, and a fair trial of citizens. This change would replace the existing patchwork of acts of parliament, legal texts, and conventions through which the UK now operates with a clearer focal point containing the essential rules of state and the principles on which they are based.
One benefit of doing so is that it would make these structures easier for citizens to find and comprehend. Andrew Williams persuasively argues that justice can make only demands that fall within the epistemic capabilities of citizens. Individuals must be able to know what the rules require and whether they are being observed, because it respects them as citizens to put this information within their reach and allows them assurance that others are complying. Arguably the current UK structures fall outside this requirement. They can be difficult even for legal practitioners to master. But, at any rate, it seems reasonable to think that a tighter, collated outline of the rules would help meet this goal better.
Another benefit would be that it would provide a clearer mandate for a system of judicial review. Some worry that adopting a constitution would allow (unelected) judges a political role in setting the rules of society. Given that UK judges already have power to overrule legislation under the Human Rights Act, it is not clear that adopting a constitution is any more liable to this objection than the status quo. But, regardless, as Ronald Dworkin argues, there is value in judges having this mandate if it protects certain principles and rights we deem important, such as those mentioned above. And while some suggest that the British unwritten constitutional model has been good at protecting freedom over time, the evidence is that independent courts operating with safeguarded statutes have the stronger record in protecting human rights, especially those of minorities. Moreover, offering judges a tighter, collated outline of the relevant principles and rights seems, if anything, likely to improve the viability of this task. It would help distinguish these cases from instances of legislation more concerned with improving general welfare, thereby establishing a clearer domain and set of parameters within which their rulings must operate.
One important question asked about the project of adopting a constitution is whether there is a clear objective in doing so. I have some (perhaps overly optimistic) hope that the process could help the UK clarify what truly follows from some of its foundational values – that equality requires far more in terms of social and economic rights than our existing structures offer, for example. But, whatever else, I do think that bringing principles and current rules into sharper focus and alignment would set the tone and motion for a better political climate in the senses described above. That, I believe, would be a worthy objective.
Thanks for this Andrew, I'll respond in greater depth later. FYI people might be interested in the Great Charter Debate launched a few weeks ago by OpenDemocracy, IPPR, and the Oxford Politics Department, which aims to influence how the constitutional discussions around the 800th Magna Carta anniversary
Andrew, I think your last point is particularly important i.e. the effects of the process of creating the constitution and not just the end-result. Constitutional moments are often defining moments in a country's self-understanding. Given how conservative the UK's political culture is, the debate around a new constitution and a people's constitutional assembly could be an opportunity to push for a more radical, democratic and popular understanding of what the UK should be.
That said I'm also a little skeptical about the prospects. The parties are going to do their best to keep the convention from getting out of their hands and I doubt that they would allow the convention to propose a constitution that fundamentally deals with some of the UK's major problems (rampant inequality, the power of the City, political and economic centralisation around London, etc).
Thanks for this post Andrew – it makes me realise how out of touch I am with affairs in the UK. I am however very much a believer that constitutional processes and moments – as foundational moments – have transformative political potential (see Arendt on American and French revolutions in On Revolution) – but like Bruno I am skeptical that such potential exists at present in the UK with the current government and lack of space for political participation,resistance, protest, etc. Is there any reason to believe that this opportunity would not be used to push the UK closer towards a more technocratic and legalistic state? Also, I would like to question – again withut mowing much about the current system in the UK – your assumption that: it seems reasonable to think that a tighter, collated outline of the rules would help meet this goal better. There is good reason to argue the opposite, that is, that a loose more patchwork like structure creates contradictions and loopholes that can be used creatively to the advantage of many (both for better and worse).
Just so that I am sure that I understand the discussion so far, I have a question for Anya and Bruno: Is your objection not to the adoption of a Constitution as such, but instead to the adoption of a Constitution right now? Moreover, if the principle reason for this that you believe that, if we were to adopt a Constitution right now, it would be a problematically conservative one? Thanks in advance for the clarification.
Bruno, Anya, thanks for the thoughts. In a sense, I do not have so much to offer in response insofar as the point you raise connects with something a little further from my main reasons for defending the constitution move here. I share some of your worries about how the constitution will be formed, although as the House of Common Committee and the Great Charter Debate, amongst others, show, they are trying to incorporate a range of voices in the process. Beyond that I also think that it is not only forming the constitution that will be useful, but that there is one. If it does take the form I suggest – showing how underlying values are thought to shape certain core rights, for example – then it can serve as a reference point, allowing advocates of more progressive policies to show that they, too, follow from the underlying values. It is easier to make the case for more equal distribution when equality is enshrined as a constitutional value and is used to justify other accepted rules. I would probably suggest a similar line of reasoning on your second comment, Anya. I suspect that contradictions and loopholes are most useful to political and legal elites who know how to work the system better, whereas firmer and clearer foundations can be used push against and hold to account such political manoeuvring.
Andrew and Tom, my point wasn't that we shouldn't have a constitution now or a constitution as such, but to express skepticism over how much we can hope to get from this specific constitutional moment and constitutions generally.
I do think that as constitutional moments go, this has less potential than those that have for example emerged after overthrowing an unjust regime (French revolution, South Africa post-apartheid).
Whether I would support or be opposed to a UK constitution would really depend on what emerged. If it was simply a codification of the current unwritten one I wouldn't be very enthusiastic since it might further ossify the UK's institutions. Beyond that I might be mildly supportive, or even openly enthusiastic if they adopt an article prohibiting private ownership of the means of production (we can but dream….)
Hi Andrew, this is a fascinating topic. I had similar thoughts as Bruno about the value of the very process, at least if it makes voices heard that are otherwise unheard. What you write suggests that there is actually some broad consensus of values among the majority of British people, and that a small elite is driving the country into a different direction. This is something that I hear from other British people as well (and it makes me wonder whether what is called for is not a constitution, but a revolution – but that's not likely to happen). Do you know if there is social scientific evidence on these shared values? What concrete values are they?
If this picture is roughly correct, even the very process of making public what such shared values are – in the process of thinking about a constitution or otherwise – might be valuable. It might make people realize that these values are in fact shared, and hence that there might also be other possibilities for political reforms.
Lisa, thanks for the comment. I am unsure whether there is a set of values shared amongst the UK population. I do not have reason to doubt that claim, but neither do I know of research that supports it (which is not to say that it does not exist). In my mind was perhaps only that the UK system has developed around a set of ideals – and I think the Committee’s suggestion that these are ‘liberty, equality, tolerance, and the rule of law’ is a reasonable estimate. I suspect that it has leaned towards an interpretation of these values that is more conservative, a tendency which I think probably does reflect the thought that a small elite has pushed the country in a certain direction. But I also think there is room for them to be interpreted differently and, as you say, that the process of forming the constitution could help bring them into focus for this purpose.
I don't have an objection to constitutions as such as they are indeed founding moments of political importance but I don't see why the UK would need one now unless it were for particular political motives. The fact that a political community has been established and has functioned for better/worse for a very long time without one suggests that it might be better to focus on improving other institutional aspects at this time. In my opinion, the argument that there are loopholes or inconsistencies is not a sufficient reason.
This raises a more fundamental, and more theoretical question (which also relates to other things people have said above): whether democratic societies need mechanisms that allow them to make explicit, and discuss, their values, from time to time. This is not a question limited to the UK, and it makes perfect sense to ask a similar question about societies that have constitutions: should there be mechanisms for reflecting on those constitutions, and the values they embody, say every 25 years or so (i.e. in every generation)?
In most societies there are certain mechanisms – for example presidential speeches, national holidays, etc. – on which reflection on the constitutions and/or the fundamental values of the society take place. But those are usually elite-driven, and few people get involved. One of the reasons that would make the process of adopting a constitution in the UK interesting is that one could imagine a much broader debate about these questions. But the two issues are not necessarily related.