The Independent
The Big Question: Why doesn't the UK have a written constitution, and does it matter?
By Nigel Morris, Home Affairs Correspondent
Thursday, 14 February 2008
Why are we asking this now?
Because Jack Straw has used a visit to Washington to hint that Britain could finally get a written constitution spelling out citizens' rights and codifying this country's political system. The Justice Secretary is already working on a new Bill of Rights and Responsibilities, clearly defining people's relationship to the state, as part of a wide-ranging package of constitutional reform. But he has, for the first time, also said the Bill could be a step towards a full written constitution to "bring us in line with the most progressive democracies around the world".
Why don't we have a written constitution?
Essentially because the country has been too stable for too long. The governing elites of many European nations, such as France and Germany, have been forced to draw up constitutions in response to popular revolt or war.
Great Britain, by contrast, remained free of the revolutionary fervour that swept much of the Continent in the 19th century. As a result, this country's democracy has been reformed incrementally over centuries rather than in one big bang. For younger countries, including the United States and Australia, codification of their citizens' rights and political systems was an essential step towards independence. Ironically, several based their written constitutions on Britain's unwritten version.
What do our rights depend upon?
Britain's constitution has developed in haphazard fashion, building on common law, case law, historical documents, Acts of Parliament and European legislation. It is not set out clearly in any one document. Mr Straw said yesterday: "The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law."
Nor is there a single statement of citizens' rights and freedom. As the Justice Secretary put it: "Most people might struggle to put their finger on where their rights are."
What about the Magna Carta?
When the barons forced King John in 1215 to sign the Magna Carta, it was an event that would reverberate through constitutional law eight centuries later.
The landowners were driven by a desire to protect their own interests rather than those of the people. But the resulting document, which has no legal force today in this country, was a key inspiration for the architects of the US constitution.
It has had huge symbolic value in the development of Western-style democracy in that it limited state powers and protected some citizens' rights. Its key principles, including the right to a fair trial by one's peers and protection from unlawful imprisonment, have underpinned common law.
What other constitutional landmarks have there been?
The Bill of Rights of 1689, which followed the accession of William and Mary to the throne after the "glorious revolution" bolstered the powers of parliament and, by extension, the rights of the sovereign's subjects. They included freedom from taxes imposed by the monarch and from being called up in peace-time to serve in the army without Parliament's permission.
The Great Reform Act of 1832, which vastly increased the number of adult males entitled to vote in elections, is widely seen as the starting-point for establishing the sovereignty of citizens over parliament. It set in train the process that led to the Representation of the People's Act of 1928, which gave all men and women over the age of 21 the right to vote.
Then there was Britain's entry into the European Economic Community in 1973, which brought the country for the first time under a degree of international judicial control. Ten years ago Britain came closer than before to codifying individuals' rights when the Human Rights Act enshrined the European Convention on Human Rights into UK law.
What are the advantages of a written constitution?
It has become almost a truism that British politics, beset by cynicism about politicians and undermined by falling turn-outs at general elections, is in crisis. Supporters argue that producing such a document could tackle such disillusionment, at the same time as setting new, clear limits on the power of the executive. The Liberal Democrats have called for the public to be involved in drawing up the constitution. They say: "This would reform and reinvigorate the democratic process, putting individuals back in control instead of the wealthy, large businesses and the unions."
And what are the disadvantages?
"It it ain't broke, don't fix it," argue opponents of a written constitution, who insist that the existing arrangements, however piecemeal their development has been, have worked well in practice. There are, moreover, formidable practical problems to be overcome before such a document could be drawn up. Would it be wide-ranging and largely abstract or would it list individuals' rights in detail and provide an exhaustive summary of Britain's constitutional settlement? If the latter, it could prove beyond the grasp of most of the citizens it would be designed to protect.
Why is the idea being floated now?
It is a natural follow-on from the proposed constitutional reforms announced by Gordon Brown as one of his first acts in Downing Street. He explained that he wanted to develop a "more open 21st-century British democracy which better serves the British people". As well as the British Bill of Rights, he suggested giving Parliament the right to approve any decision to send British troops to war and surrendering the prime minister's power to appoint judges and approve bishops. Such proposals would be small beer, however, compared with any move to write the country's first constitution.
What happens next?
Britain is not going to get the ground-breaking document any time in the near future. Mr Straw said any attempt to encapsulate Britain's constitutional arrangements in a single document should be done on a "bipartisan, consensual" basis over a period as long as 20 years. He also said a national referendum would have to be held to approve the document if it ushered in significant changes. Professor Robert Hazell, the director of the Constitution Unit at University College London, predicted Britain would never get a written constitution. "Constitutions don't get written in cold blood." Nick Herbert, the shadow Justice Secretary, was equally sceptical. "The last thing Britain needs, with 2,000 years of history behind us, is more of New Labour's blind constitutional vandalism," he said.
Do we need a written constitution?
Yes...
* Britain's arcane hotch-potch of freedoms and rights cannot be defended in the 21st century
* It could help citizens clarify their rights and protect themselves against the state
* Most flourishing democracies base their institutions on a written constitution
No...
* The system should not be tampered with as it has served Britain well for centuries
* The practical problems over what to include and leave out would be a logistical nightmare
* It could undermine the power of Parliament to scrutinise ministers on behalf of the public
The Times
A strong constitution
July 10, 2003
Constitutional concerns are in the spotlight. Last month's publication of a draft European constitution was predictably controversial; while Tony Blair's recent Cabinet reshuffle had some accusing him of riding roughshod over the unwritten — and largely undefined — British constitution. Such is the nature of politics. But beyond the bickering, both rows raise questions about the value of a written constitution. A primary purpose of such a document is to assign powers to the governing officers and institutions, providing their legitimacy and effective checks and balances. Corporate governance is concerned with many of the same issues. In the post-Enron world, the parallels raise interesting possibilities. Citizens of nation states with a written constitution, such as the US, have a higher authority to appeal to if they are concerned about decisions made by the current leadership. So should companies have a written constitution and would it prevent another Enron? One of the more thoughtful advocates of a corporate constitution is the management commentator and best-selling author Charles Handy. He believes that political theory will influence the way companies develop. “Increasingly we are realising that organisations are not mechanistic devices, they are communities of people and therefore political theory is increasingly relevant,” he says. Handy says many large companies have to strike a balance between centralisation and decentralisation. The move to a federal organisational form has important implications. “Federalism doesn't work on hierarchical power. It is all about negotiation. The federal organisation is made up of alliances and partnerships, and you have to negotiate who has the power to do what — and it really does need to be written down,” he says. The idea of a written corporate constitution may sound far-fetched, but there are precedents. Some companies do have a written document enshrining what they stand for. Johnson & Johnson has its values written down in a book called the Credo, which dates back to the company's founding fathers. In the 1970s, Adrian Cadbury set out the values of Cadbury Schweppes in a document called the Character of the Company; and Hewlett-Packard has the HP Way, which employees write out by hand and pin up next to the picture of their family. The Canadian automotive components company Magna International publishes a written constitution on its website (www.magnaint.com). The German media group Bertelsmann, too, has a form of constitution. The company's founder, Carl Bertelsmann, combined a keen business brain with an altruistic social agenda. When Reinhard Mohn, the fifth generation of the family, took over Bertelsmann in 1947, he enshrined the founding philosophy in a document called The Bertelsmann Essentials. So could statements of business principle provide the basis for a formal corporate constitution? Dr Rebecca Stratling lectures on corporate governance issues at Durham Business School. “It's important to be clear about what we mean by a constitution,” she says. “Legally, a company's articles and memorandum of association are a form of constitution and are legally binding. Some corporate governance issues are included. For example, how frequently the board meets. But others such as the creation and composition of sub-committees are not.” Few people take the trouble to read the small print in a company's articles of association, of course. But a highly visible statement of business principles could afford employees and investors some additional protection. Dr Stratling agrees that in principle it would be helpful to have a high-profile document setting out what the company stands for and how it is accountable. But, she says, there are two sides to the issue. “Do you want to make it possible to sue companies for violating their constitution, which may be problematical? Or is the intention primarily to improve transparency? But it would have to be more than just a box-ticking exercise.” John Kaler, senior lecturer in law at the University of Plymouth Business School, also sees potential in the idea — although he is concerned that companies might come to see themselves as quasi-political organisations instead of economic entities. “Corporate statements — along the lines of the US Constitution — are an opportunity for companies to go further down the road of good corporate governance and enhanced social responsibility, but in practice it does all depend on who draws up the constitution,” he says. “If it is left to company boards, albeit after a process of consultation, then company constitutions might well be found in desk drawers alongside company mission statements as documents people know exist, but can't remember what's in them. If, however, it's the product of real debate among shareholders and other stakeholder groups, most notably employees, and subject to their approval, then these statements might have a useful role.” Just five years ago, only a handful of companies had written policies addressing human rights. Today hundreds of companies have developed codes of conduct for global labour practices, and policies integrating the Universal Declaration of Human Rights. Would a written constitution have prevented what happened at Enron? Probably not, but at least honest people inside the company would have a higher authority to appeal to.
Unwritten rules
The Prime Minister's statement on the constitution contained some welcome small ideas but was still vague on either the need for, or the detail of, wider change
June 11, 2009
It was a very Gordon Brown moment. Yesterday the Prime Minister unveiled the product of a great deal of pondering. Some of it had taken him years to work through in his mind. In his statement he tackled great issues of state, and expressed a willingness to introduce truly transforming policies. It might have been a political landmark. Yet somehow it was not. Where there were grand ideas, there was no detail. And where there was detail, there were no grand ideas. The central intellectual argument that Mr Brown made yesterday is questionable. He asserted that the scandal over MPs' allowances demands a change in the structure of British democracy - in the voting system, decentralisation and the composition of the House of Lords. This connection is commonly made, but it is hardly an obvious one. If in years to come, a civics teacher attempted to explain to pupils that Britain has perpetual coalition government because Sir Gerald Kaufman once tried to claim too much for a television set, he might struggle.So it is not surprising that the most confident and convincing parts of the Prime Minister's statement were his immediate proposals to act on the allowance system itself. Particularly welcome is the proposal for a parliamentary standards authority. The aspect of the allowances debacle that cause most public concern was the way in which MPs set their own rules and then benefited from them. Mr Brown trailed the other leaders in addressing the crisis, but he appears here to have grasped the central issue. The moment that the Prime Minister passed on to the bigger questions, things became more murky. This is especially the case with electoral reform. Labour leaders, from Ramsay MacDonald onwards, have dallied with a change in the voting system. Yet, somehow, they never seem to introduce it when things are going well for them electorally. Mr Brown is offering proportional representation that may not be proportional, a Bill that he has not got time to introduce and a referendum he may not be in power to hold. A similar vagueness characterises his comments about the House of Lords. It is not wrong to return to this question, but weary political observers can be excused a degree of scepticism about the final outcome - as they can if they incline their heads quizzically at talk of a written constitution. A prime minister with months of his term in office left and who cannot properly reshuffle his Cabinet is an intriguing candidate to fulfil the role of the British James Madison. The best approach to take to all these proposals is to take them as they come, if they come and to judge them on their merits. Mr Brown should understand that it will be immediately obvious if he is proposing a serious democratic reform or a tactical fix to avert electoral disaster. It may not be obvious to link big constitutional reform to the allowances fiasco, but this does not necessarily mean that it is wrong. Certainly the public dismay at what was discovered reflected a general cynicism about politics and politicians. But the decision of the Prime Minister to talk of the big-ticket items of constitutional reform meant, precisely as this newspaper warned in a previous leading article, that he ignored some of the smaller, more direct, measures to make Parliament accountable. Electoral reform and changes to the House of Lords demand White Papers, internal party debates, referendums. The discussions can go on, may well go on, for years without being settled. Meanwhile, issues such as open primaries, recall for MPs, looser whipping and better scrutiny of laws lie ignored. If the Prime Minister wants real change, it is to these smaller, vital reforms that he will have to turn. Or does he just wish to look like a reformer?
We need a new constitution for Britain — and the debate has begun
June 1, 2009
For the first time since the suffragettes, constitutional reform has become a popular issue. The crisis over MPs' expenses has convinced many that Parliament has become insulated from the people. MPs must become accountable between general elections, not just once every five years. MPs have also lost authority. If, far from being better, many are worse than the rest of us, their right to monopolise legislative power comes into question. Many people believe that they are at least as well qualified to take decisions as their MPs. That means more direct democracy — primaries, recall of MPs and referendums.
Gordon Brown has long been a constitutional reformer. He supported devolution long before it was fashionable and, in 1980, co-authored a book on the subject. He appreciated that reform must mean more than a shifting of the institutional furniture. Yesterday he suggested that the agenda of constitutional reform should embrace reform of the electoral system, reform of the Lords, a Bill of Rights, votes at 16 and a written constitution. That is a huge package, requiring many Acts of Parliament. A government in the last year of its term is not in a good position to initiate radical change. Most constitutional reforms have been implemented by governments with a mandate from the people: the Great Reform Act of 1832 and the 1911 Parliament Act, restricting the power of the House of Lords, followed general elections held amid popular enthusiasm. Votes for women came in 1918 as a result of the consensus created by war. The next election is likely to be fought on economic issues, not the constitution. Even a government with a secure majority might lack the authority to alter the constitution. A mandate probably requires a referendum. Labour has promised that it will not change the electoral system without one. Important constitutional reform should not be a knee-jerk reaction to crisis, but the result of popular reflection. To be effective, it needs to be a product of popular wishes, not something implemented from on high. All that a government can do is to initiate a debate. How should that debate be conducted? Sir Menzies Campbell, when Liberal Democrat leader, argued for a directly elected constitutional convention, half of whose members would be chosen by lot. Perhaps guidance to a convention could be provided by an advisory Royal Commission, taking evidence throughout the country. What is clear is that we must refashion our democracy to meet the needs of an age in which participation has to reach beyond party.