Every time there is some new constitutional calamity in the United Kingdom, and they have been rather common in this era of Brexit and Dominic Cummings, a similarly common response from anyone progressive or liberal is to ritually demand a “written” constitution. And that is usually all that is said on the subject, as if such a demand is sufficient in itself as a reaction to what has gone wrong.
But this is misguided and indeed irresponsible for three reasons. First, a written constitution would not by itself lead to more liberal government. Many of the most repressive regimes in modern times have had written constitutions which, on paper, would seem exemplars of how fundamental rights and freedoms should be protected. Their peoples were tortured and their rights were generally violated all the same.
Second, there is no obvious or plausible way to get from where we are now to putting in place an entrenched constitution. This is best done on a blank slate. But the UK has not been invaded, the monarch has not been deposed, and there has not been a violent overthrow of power. There has been significant change over the last five years, but not the sort which would allow an entire political system to begin again.
And even if there were some plausible path towards an entrenched new constitution, the process would no doubt be hijacked by Whitehall so that the end result was a more powerful executive, not a weaker one. Any grand constitutional convention would be on the government’s terms and the UK would probably end up with a more illiberal set of constitutional arrangements than we have already.
But the third reason for avoiding a preoccupation with a written constitution is more basic. The preoccupation itself is part of the problem. The call for a written document is not really a way of thinking about constitutional improvements in the UK but of not thinking about them. And while well-meaning people distract themselves with the ideal of a codified constitution, the government is getting away with ever-greater constitutional trespasses. People are looking the other way.
This is not to say that there is not merit in having a written constitution. A single, portable and accessible document providing for the various functions of government, their checks and balances, and what happens if these functions are in tension, is something which would be nice to have. But we are not going to get it, at least in the foreseeable future, and trying to get it may make things worse (or better, for those who favour executive might).
The knee-jerk call for a hypothetical written constitution stifles discussion of more realistic proposals for improving the constitution. Such pragmatic approaches would mean working with the grain of our uncodified constitution. But few progressives and liberals seem to have the stomach for this.
There are many feasible improvements that could be made. One welcome reform would be to place all the remaining powers of the prime minister under the royal prerogative onto a statutory basis. There is now no legal doubt that exercises of such powers are amenable to judicial review by the courts. But they should also be subject to parliamentary consideration and definition. And powers that are statutorily defined can, over time, be statutorily amended.
Another reform would be to remove the ability of the executive to issue statutory instruments without any effective scrutiny or means of amendment. Statutory instruments with so-called “Henry VIII powers” to amend primary legislation should no longer be able to go through “on the nod”—which is to say ministers publish them and they become effective only if some keen-eyed MP spots a problem and “preys” against them—but instead be subject to affirmative parliamentary votes each time they are used.
In particular, the current practice of issuing certain public health regulations to take effect without any prior parliamentary approval should be placed under a common emergency powers regime. Any instruments creating criminal offences or providing for sanctions should also be subject to positive prior votes at Westminster.
There should also be legislation regulating the role of special advisers appointed by ministers, and providing for structural independence of other civil servants, so that there is a formal and transparent process for removal and replacement with which ministers cannot tamper. The impotent Freedom of Information Act should be revised so that it has actual force, as this would be a discipline on sloppy decision-making and policy implementation. There should also be the most open regime possible imposed on public procurement, with tenderers knowing that the benefit of government contracts comes at the cost of losing “commercial confidentiality.”
The power of the courts to consider parliamentary debates when examining legislation—the Pepper v Hart rule—should also be abolished. This rule is almost impossible to rely on in litigation, but it has had the dreadful effect of making it almost impossible to get sensible or even lucid explanations from ministers at the despatch box, and prevents meaningful parliamentary debate. This reform at a stroke would improve practical accountability.
Each of these proposals is more realistic than a written constitution, each carries a distinct benefit, and each could be put in place by relatively simple legislation. But they will not be put in place, as there is little to no practical discussion about constitutional reform in the UK, other than the all-or-nothing insistence on a written constitution.
You may disagree with these proposals. You may not have thought about them. You may have some of your own, such as on reforming the electoral system, modifying the Upper House or reinforcing devolution arrangements. And this is the discussion we should be having about improving our constitutional arrangements. To have this useful discussion, however, we may need to stop the constant talk about a written constitution.
