Should the UK Have a Written Constitution?

Our New Prime Minister May Be Onto Something

The United Kingdom has historically prided itself on the stability of its constitutional arrangements. Unlike most modern democracies, however, the UK does not have a single written constitutional document. Instead, our constitutional framework is spread across legislation, court decisions, conventions and centuries of practice.

That unusual position has recently come back into focus with the appointment of a new Prime Minister in Andy Burnham.  Mr Burnham has previously suggested that the UK should consider adopting a written constitution as part of a broader programme of constitutional reform.  More recently, he suggested at the weekend that his programme of decentralisation strengthens the argument for a written constitution, which could provide a clearer framework for how power is exercised and shared throughout the country.

What Is a Written Constitution?

Many democratic nations have a single constitutional document that sets out the fundamental principles by which the country is governed.

Such constitutions typically define:

The powers of government;
The relationship between central and regional institutions;
The rights of citizens;
The role of courts;
The process for changing constitutional arrangements.

The UK is quite unusual. Our constitution exists in various statutes, common law principles and constitutional conventions. This flexible system has undoubted benefits and has maintained stable government capable of adapting to historical changes. Still, it may also create uncertainty during times of political disagreement or changes such as Mr Burnham is contemplating.

Why Does This Matter?

Lawyers are often attracted to clarity.  When legal rights and obligations are clearly set out, disputes become easier to resolve. Citizens understand where they stand. Governments understand the limits of their authority. Courts have clearer principles to apply.

Recent constitutional disputes have exposed some of the weaknesses of the UK’s current arrangements. Questions surrounding Brexit, the role of devolved administrations, parliamentary sovereignty and the limits of executive power have all generated significant legal and political debate over the past decade.  Many of these disputes have ultimately found their way into the courts, and one does not need to take a particular political view to recognise that constitutional uncertainty often creates litigation risk.

A Scottish Perspective

The case for a written constitution may be especially compelling from a Scottish perspective.  Scotland occupies a unique position within the UK’s constitutional structure. We have our own legal system, our own courts and our own devolved Parliament. Yet the precise balance between devolved and reserved powers remains a recurring source of political and legal friction.

Questions concerning legislative competence can sometimes require judicial determination. Significant constitutional issues have reached the courts in recent years.  A written constitution could potentially provide a clearer framework governing the relationship between Westminster and the devolved nations. It could clearly define where authority rests and establish agreed rules for resolving disputes.  That will not eliminate disagreement, but it could reduce uncertainty.

Protecting Fundamental Rights

There is also a broader point.  Many written constitutions contain guarantees protecting fundamental rights and freedoms. While the UK currently benefits from important legal protections through statute and common law, those protections remain vulnerable to political change, as can be seen from discussions around the ECHR.

A written constitution could provide greater long-term certainty by entrenching certain fundamental principles that cannot be altered by a simple parliamentary vote.  For businesses, public bodies and individuals alike, predictability matters.  Constitutional stability tends to support economic confidence, institutional legitimacy and public trust.

Devolution and Local Decision-Making

Burnham’s argument appears to be closely linked to his desire to decentralise power away from Whitehall and towards regional and local authorities. He has suggested that constitutional reform could provide a clearer settlement regarding the sharing of power throughout the UK.   That principle also applies in Scotland.  The Scottish Parliament itself was founded on the belief that decisions are often best taken closer to the people affected by them. If further powers are to be devolved across the UK, there is logic in establishing clear constitutional rules governing how those powers are exercised and protected.

Not a Silver Bullet

 It is important to understand, however, that a written constitution is not a cure for every political or legal difficulty.  Constitutions still require interpretation, and the courts will always have a role in hearing disputes. Political disagreements do not disappear merely because rules are written down, and one can expect to see many challenges to public bodies on the basis that they are said to be acting outside the requirements of a constitution.

There would also be considerable public debate about what any UK constitution should contain. Questions relating to sovereignty, the status of devolved nations, the House of Lords, electoral reform and human rights would inevitably be contentious, particularly in the current climate.  In truth, drafting a written constitution would likely be one of the largest constitutional exercises undertaken in modern British history and has the potential to expose and create deep divisions, as the example of Brexit shows us. Extreme care would be needed by those leading such a debate to prevent lasting damage.

A Debate Worth Having

 Whether one agrees with Andy Burnham or not, his intervention raises important questions, including whether the fundamental rules governing the United Kingdom should be contained in a single, accessible constitutional document and whether the attempt to draft one now would do more harm than good.  At a time when constitutional issues continue to generate both political controversy and legal challenges, that is a conversation the UK may need to have sooner rather than later.