Sunday, 2 October 2011

Towards a written constitution

"Suppose one joined a tennis club and, having paid one’s subscription, asked to see the rules of the club. How would we feel if we were told, ‘Actually, the rules have not been collected and brought together all in one place. They are scattered around amongst the decisions of past presidents of the club, and decisions made by the various committees of the club. You can search through the minutes to try to find them, but it will be a long job. In addition, there are some rules which are not written down at all – unspoken conventions. These you will pick up as you go along. But, please do remember that, if you have to ask what the rules are, you do not belong’. We would hardly be mollified. Indeed, we might ask for our subscription back."

Advocacy of a written constitution for the UK essentially began in the 1970s with the publication of O. Hood Phillips's Reform of the Constitution (1970) and Lord Hailsham's famous 1976 Dimbleby Lecture, "Elective Dictatorship".  The first Prime Minister to publicly back the idea of a written constitution was Gordon Brown, who made constitutional reform a theme of his troubled premiership.

Several documents were produced from the 1980s onwards aimed at codifying various elements of the functions of government.  The most important of these was the Ministerial Code, originally entitled 'Questions of Procedure for Ministers', which was published in 1992 and which dates at least from the 1980s (according to Halsbury's Laws, it may go back in some form to 1945).  This is supplemented by two brief documents relating to the Civil Service, the Armstrong Memorandum (which dates from 1985) and the Civil Service Code (which dates from 1996).  There are also various New Labour-era agreements between different state institutions - central government, the devolved administrations, local authorities, the judiciary - most of which are known as 'Concordats'.

The draft Cabinet Manual currently in the process of being introduced in Whitehall was intended by Gordon Brown to be a step towards a written constitution.  It was given a particular urgency by the perceived need to establish clear rules for the formation of a government in advance of the 2010 general election, which was (correctly) expected to produce an inconclusive result.  It has its origins partly in the Ministerial Code and partly in a similar document in use in New Zealand.

More ambitiously, several detailed examples of draft written constitutions have been produced since the 1990s:
•  "We, The People”, a policy paper by the Liberal Democrats (1990)
•  Tony Benn's Commonwealth of Britain Bill (1991)
•  A Written Constitution for the United Kingdom by the Institute for Public Policy Research (1991)
•  The Fall of the House of Westminster by Open Democracy (2010)
•  Repairing British Politics by Richard Gordon QC (2010)

Perhaps most usefully, a group led by Stephen Hockman QC and Prof. Vernon Bogdanor have produced a detailed set of questions that drafters of any future written constitution will have to answer.  It is from their paper that the quotation at the head of this post is taken.

Several means of enacting a written constitution have been proposed.  They are not all mutually exclusive:
  • An Act of Parliament (Lord Hailsham, Tony Benn)
  • Resolutions of both Houses of Parliament (Dawn Oliver)
  • A referendum (Lord Hailsham, the Liberal Democrats, Dawn Oliver, O. Hood Phillips)
  • A constitutional convention or constituent assembly (the Liberal Democrats, O. Hood Phillips)
Finally, Lord Hennessy has advocated a "Tommy Cooper style, 'just like that' approach to a written constitution". There would be:
an all-party convention to agree a core list of constitutional statues and to draft a law entrenching them, so that they could not be amended or repealed by an incoming government without a specific pledge in their party’s general election manifesto. Future constitutional measures such as a War Powers Act or a Civil Service Act could be added to the list if the Speaker of the House of Commons certified them as core constitutional statutes.