|Magna Carta Memorial, by Karnaphuli / CC BY-NC 2.0|
In honour of the 800th anniversary of the Magna Carta, the United Kingdom is presently considering whether to adopt a written constitution. Of course, the UK has various legal documents that set rules and precedents for government and legislation. There is a Ministerial Code that outlines the duties of ministers and a Human Rights Act that stipulates various rights and freedoms to be upheld. But it does not have a single, formal, codified document encapsulating the essence and dimensions of all these segments. In this post, I outline two reasons in favour of the UK adopting such a constitution.
1) A Constitutional Code, which would outline essential elements and principles of government, but not be legally binding.
2) A Constitutional Consolidation Act, which would bring together the various segments of existing common law and parliamentary practice.
3) A Written Constitution, which would be a legally binding statement of basic UK law, democratic procedure, and the relationship between state and citizen.
What I have in mind to defend is a version of 3 not dissimilar to the draft of this option in the Select Committee Report. I think there would be value to the UK adopting a document which details certain core existent and aspirational principles of governance – "liberty, equality, tolerance, and the rule of law” are the draft’s specification (on p.285) – and delineates their manifestation in various rules – such as the rights to life, security, and a fair trial of citizens. This change would replace the existing patchwork of acts of parliament, legal texts, and conventions through which the UK now operates with a clearer focal point containing the essential rules of state and the principles on which they are based.
One benefit of doing so is that it would make these structures easier for citizens to find and comprehend. Andrew Williams persuasively argues that justice can make only demands that fall within the epistemic capabilities of citizens. Individuals must be able to know what the rules require and whether they are being observed, because it respects them as citizens to put this information within their reach and allows them assurance that others are complying. Arguably the current UK structures fall outside this requirement. They can be difficult even for legal practitioners to master. But, at any rate, it seems reasonable to think that a tighter, collated outline of the rules would help meet this goal better.
Another benefit would be that it would provide a clearer mandate for a system of judicial review. Some worry that adopting a constitution would allow (unelected) judges a political role in setting the rules of society. Given that UK judges already have power to overrule legislation under the Human Rights Act, it is not clear that adopting a constitution is any more liable to this objection than the status quo. But, regardless, as Ronald Dworkin argues, there is value in judges having this mandate if it protects certain principles and rights we deem important, such as those mentioned above. And while some suggest that the British unwritten constitutional model has been good at protecting freedom over time, the evidence is that independent courts operating with safeguarded statutes have the stronger record in protecting human rights, especially those of minorities. Moreover, offering judges a tighter, collated outline of the relevant principles and rights seems, if anything, likely to improve the viability of this task. It would help distinguish these cases from instances of legislation more concerned with improving general welfare, thereby establishing a clearer domain and set of parameters within which their rulings must operate.
One important question asked about the project of adopting a constitution is whether there is a clear objective in doing so. I have some (perhaps overly optimistic) hope that the process could help the UK clarify what truly follows from some of its foundational values – that equality requires far more in terms of social and economic rights than our existing structures offer, for example. But, whatever else, I do think that bringing principles and current rules into sharper focus and alignment would set the tone and motion for a better political climate in the senses described above. That, I believe, would be a worthy objective.