English common law has given the world some of the surest ways to responsible government. While my own country, India, based much of its law upon England’s, unlike the latter it chose to enact a written constitution. As constitutional crises continue to simmer following 2016’s momentous Brexit vote, it’s clear that the UK would be better served with a written constitution of its own.
In the aftermath of the referendum, concerns raised about the autonomy of the devolved legislatures have found fresh force. Questions regarding the powers of ministers and the courts have also arisen, most notably in the context of parliament’s prorogation in 2019. And the pandemic has forced people to accept the greatest inroads on liberty we’ve witnessed in decades. In each of these instances, the UK might have benefitted from a written constitution.
The UK’s “unwritten” constitution is, of course, largely written. It is not, however, codified in a single document. We find it in acts of parliament, such as the Bill of Rights 1688, the Acts of Union 1707, the Human Rights Act 1998, the Parliament Acts of 1911 and 1949, and in laws concerning the devolved nations and British Overseas Territories. The constitution also resides in unwritten conventions and in the common law. This leads us to the first benefit of a written constitution: clarity.
Lord Bingham perceptively wrote that “constitutionally speaking, we now find ourselves in a trackless desert without map or compass.” This is the precise problem codification addresses. When a constitution is codified, we know what it says. Each organ of the state—the legislature, the executive and the judiciary—has a clearer idea of the breadth of its powers. The relations these organs have with each other and with citizens are more easily discernible. Clarity on what the powers each branch of government has might, for instance, have avoided controversy surrounding whether parliamentary approval was required before the UK could give notice of its decision to leave the EU.
Written constitutions can also inform the public. With one document to refer to, people are more likely to know what can and cannot be done or how they might be dealt with. Being able to point to a constitution and assert its values is empowering. I have seen generations in India grow to understand the workings of its constitution, learning their rights and asserting them against successive governments.
Perhaps the most significant advantage of a written constitution is its benefit to the citizen. Modern written constitutions are an embodiment of the contract citizens enter with their government. They agree to be governed in exchange for certain assurances. Principal among these is that at all times their freedoms will be protected and their equality guaranteed. Rights guaranteed by a written constitution are usually beyond parliament’s power to amend with a simple majority. Individuals and minority groups are thus protected from majoritarian and populist influence. And, as AC Grayling writes, “a constitution not at the whim of any current administration is a sterner guardian of rights and liberties than a constitution malleable to partisan and passing interests.”
Ordinary citizens of the UK, however, may lack an understanding of what is expected of them, or indeed what their fundamental rights are—especially in times of crisis. The UK’s response to the pandemic laid bare the fact that the country does not have a consistent set of processes to follow. The Coronavirus Act 2020 acted as a sticky plaster, rather than a long-term solution for future emergencies. The UK’s ambiguous patchwork of laws, regulations and statutes are confusing. Codification and deliberate ex-ante design would ensure that the laws of the land are set in stone and understood by most people.
Constitutions imagine and institute democracy. They are declarations to the world of the core values of a nation. A written constitution does not guarantee a nation’s success, but it is the best method we’ve conceived to strive for it. To address current crises and those that will inevitably come, the UK must give serious consideration to the possibility of enacting a constitution.
