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13 November 2019

Constitutional deadlock: is it time for Britain to adopt a written constitution?

The inherent flexibility in the United Kingdom’s unwritten constitution is said to be both a boon and a bane. Those who consider it the latter point to a reliance, when determining and implementing constitutional principles, on rules, sometimes taken out of context, misunderstood Parliamentary conventions, case law (again, some of it quite arcane) and a system of checks and balances which hold the judiciary, executive and legislature in a permanent (and often uncomfortable) state of tension.

Of course, this system has existed for centuries now; and, for the most part, happily so, its proponents would argue. However, the very fundamentals which underpin our Constitution have recently been called into question: first by Gina Miller’s successful challenge in the Supreme Court to the Prime Minister’s advice to the Queen to prorogue Parliament; then by the Benn Act (requiring the Prime Minister to request an extension to Article 50 if Parliament had not approved a Brexit deal by 19 October 2019); and finally by the Letwin amendment (requiring that House of Commons’ approval for any deal be withheld until the necessary, associated legislation was in place).

Too flexible?

These recent challenges have raised concerns that our Constitution has been flexed so far that it is now broken. Things came to a head with the purported prorogation of Parliament in September this year, which descended into chaos, on one view at least due to the lack of any written rules determining when Parliament should be prorogued, or when a decision to prorogue can or should be scrutinised. It is perhaps remarkable that such an important decision, and the respective roles of each branch of the state in relation to it, remains even now the subject of convention, rather than a more concrete, and binding, set of rules. The position is especially acute in an age where it seems political actors are prepared to push harder and harder at the boundaries of the relevant conventions, threatening even to ignore them. Against that backdrop, we have no option but to put our trust in Parliament, the executive and the judiciary to navigate the landscape and test and determine the nature and extent of proper scrutiny.

In favour of a written constitution

The first question considered in Miller, before the Court could rule on the lawfulness of the prorogation, was whether the matter was justiciable at all [para 27], ie was it within the judiciary’s remit to scrutinise the executive in this situation? The High Court had ruled that it was not but the Scottish Court of Session had ruled that it was.

One of the Prime Minister’s main arguments in Miller was that there was no specific rule that he had broken by proroguing Parliament, so there was nothing that could be said to be unlawful. Against this simple argument, Miller, Cherry et al relied on a mixture of government memos, handwritten annotations, cabinet minutes, and (sometimes ancient) case law, which had developed in the absence of hard-edged rules to demonstrate that the prorogation was unlawful.

Miller drew renewed criticism that our unwritten Constitution allows for too much flexibility in the decision about whether or not to observe a constitutional convention, and, if so, how to do so in practice. In principle, conventions are just that – and do not bind. In practice, however, a failure to apply – and comply with – them causes the constitutional construct to creak and perhaps ultimately, to crack.

Constructing a written constitution

Written constitutions generally set out a nation’s underlying values and codify its method of government. Accordingly, a drafter must create a balance between broad principles and items specific to the nation concerned so that the constitution remains applicable over time.

This is a difficult balance to strike. If the rules are too specific, or if they are written within a particular historical or political context, they can easily become redundant or be applied in an unintended way. Famously, the USA’s Second Amendment (the right to bear arms) has been the subject of debate for decades now as to whether the right applies only in the context of raising a militia, or to individuals too. Whichever way you look at it, the fact that the Second Amendment was drafted nearly 250 years ago means that those responsible for crafting it understood ‘arms’ to mean something very different from us today; and yet the US Constitution has not been updated to reflect this social and cultural evolution.

Further, even if one accepts the need for constitutions to be updated, who should decide when that happens, and what changes should be made? Should there be a regular review? If so, at what interval? And would the rules providing for such review be integrated into the constitution itself? These questions, and many more, would require careful consideration.

Is now the time?

Some commentators believe that Brexit provides the perfect opportunity to adopt a written constitution, since there will be a raft of EU law which needs to be integrated into domestic legislation. Why not create a written constitution while we are at it?

It is important to remember that many constitutions are written as a result of governmental changes so fundamental that the nation’s very essence is altered. Declaring independence, abolishing monarchies and creating new countries arguably necessitate codified rules to preserve peace or otherwise unite the nation. Brexit, although a drastic change, is unlikely to mark such a seismic shift in our domestic order. Greater upheaval would arguably be caused by trying to codify the nuances (and associated flexibility) of Britain’s constitutional conventions, which would require a review of the very basis of the system and may include uncomfortable questions, for example about the role of the monarchy and the extent of devolved powers.

Ultimately, this speculation may prove to be academic as it seems impossible in the current polarised political climate that we could reach agreement about the content of a written constitution. In any case, the task of navigating Brexit presents a more imminent conundrum and it seems difficult to envisage that Parliamentary time would be devoted to the creation of a written constitution, at least in the foreseeable future.

Does the unwritten system work?

It was said in the Miller judgment that the question before the court ‘[arose] in circumstances which [had] never arisen before and are unlikely ever to arise again’ [para 1]. Accordingly, it is unlikely, even if there had been a written UK Constitution, that it would have provided the solution to such an unusual situation and codified the appropriate response. Convention was therefore relied upon to keep another convention in check: Parliament (having been prorogued) was unavailable to scrutinise the executive’s decision to prorogue it, so responsibility for that scrutiny fell to the judiciary.

Likewise, the matters in the Benn Act and the Letwin amendment have not had to be considered before by any of the branches of state. The scope of the Parliamentary debate of those issues – including on a Saturday! – is powerful evidence that the legislature takes seriously its duty to scrutinise the executive.

Brexit as a whole is uncharted territory and the challenges it presents continue to test and define the limits of the flexibility of our unwritten Constitution. Recent events have shown that centuries-old conventions can still provide the answer, even if the route there is sometimes far from clear at the outset, and arrival at an acceptable destination relies in large part on the willingness of each branch of the state to play its part to the full.

For now, at least, the system holds strong.

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