No one could have foreseen that the inconclusive outcome of the General Election, and the establishment of a Conservative/Liberal Coalition, would thrust so called “political reform” to the forefront of the political and news agenda.
The written agreement dated 11 May 2010, which forms the basis of the Coalition, includes a commitment for fixed term Parliaments of five years (including a controversial provision for earlier dissolution if and only if 55 per cent or more of the House of Commons vote in favour), a commitment to a referendum on the introduction of the Alternative Vote system for the House of Commons (under which voters record their preferences on the ballot paper, and if no candidate receives more than half of the votes cast on the first count of first preference votes, then second and possibly later preferences are redistributed), and a commitment to establish a commission to consider the “West Lothian Question” (the alleged anomaly whereby Scottish MPs can vote on all matters relating to England whereas English MPs cannot vote on matters which under the devolution settlement are devolved to Scotland).
Time for a codified constitution?
In a recent article written before the Election, Richard Gordon QC (“A Blueprint for Change” Counsel April 2010, pp 20-22) suggested that the price of restored trust in democracy might be the introduction of a codified constitution. Do the recent political developments mean that calls for a codified constitution are now redundant? In my view the answer is emphatically “no”. Of the many reasons why almost all democracies have reduced their constitutional arrangements into writing, the following seem to me to be the most important:
- Firstly, no one disputes that, like almost any society other than the most primitive, we do in fact have a constitution in the sense of a set of rules under which we are governed. Once this point is acknowledged, the argument in favour of setting out those rules if at all possible in a single, clear and accessible document becomes unanswerable (it may be a very trivial analogy but in the same way, once it became clear that there were in fact agreed rules by which the members of a set of chambers ran their affairs, it was rapidly seen as inevitable to introduce a written chambers constitution).
- Secondly, it is difficult, and may be dangerous, to evaluate suggested changes to the constitutional system unless one has a reasonably clear understanding of what that system is and how its various parts fit together. The very existence of the West Lothian Question (exacerbated by the result of the Election in which Labour is so predominant in Scotland and the Conservatives so predominant in England) shows the danger of constitutional change (in this case Scottish devolution) carried out with (as some would suggest) insufficient regard for the balance of the system as a whole. Unless calls for clear and comprehensive codification are heeded we risk creating more and more such anomalies.
To assist in what might otherwise seem the very formidable task of moving towards codification, a small group of lawyers and academics – including distinguished representatives from Scotland and Northern Ireland – has produced a paper analysing and listing the issues and questions which would need to be resolved in the preparation of a codified constitution. This paper has recently been published by JUSTICE (“Towards a Codified Constitution”, Stephen Hockman QC, Vernon Bogdanor and others, 2010).
On one important issue, however, Richard Gordon QC goes too far. In his view the fundamental problem with our present system is the principle of parliamentary sovereignty (once succinctly defined in the following eight words: “what the Queen in Parliament enacts is law”). He advocates transferring sovereignty to the constitution itself, recognising that this would mean that the Supreme Court would have power to strike down unconstitutional laws, such powers being necessary precisely because of the need to ensure the constitution as supreme law was properly enforced. The difficulty with this approach was very succinctly expressed by Lord Bingham (see (2010) LQR 131) in his review of Vernon Bogdanor’s recent book “The New British Constitution” (Hart Publishing, 2009). As Lord Bingham points out this would involve a significant transfer of power from Parliament to the judges and it seems doubtful whether this would be publicly or politically acceptable, let alone welcomed by the judges themselves.
Defining the status of a codified constitution
How to define the status of a codified constitution has for long been a vexed question, but in a typically British way we have in fact tumbled upon an answer to the question, although in an equally British way we have failed to notice the answer. One of the pretty well unchallenged achievements of the last government (whose constitutional changes did not receive universal support in legal circles) was the mechanism in the Human Rights Act 1998 (“HRA”) under which legislation found incompatible with the European Convention on Human Rights can admittedly not be struck down as unconstitutional, but can be the subject of a declaration of incompatibility, which is a strong pointer towards the introduction of subsequent amending legislation. There is no reason why this mechanism could not be applied to other provisions in a codified constitution, thereby conferring on the constitution as a whole the status currently enjoyed by the HRA under this typically British compromise.
In one of his last decisions as Prime Minister, Gordon Brown instituted arrangements for a group of individuals to examine the feasibility of producing a codified constitution for the UK. In the longer term this might be one of his more far-sighted legacies to the British people.
Stephen Hockman QC is a barrister at 6 Pump Court and a former Chairman of the Bar Council