Rights and wrongs of a written constitution

Posted By: August 14, 2015

Brian Garrett. Irish News ( Belfast). Friday , August 15, 2015

There is something of a crisis threatening the British constitutional framework. This is the view of Professor Vernon Bogdanor, the distinguished professor of government at King’s College, London.

His is not a lone voice. Ever since the electoral clean sweep achieved by the Scottish Nationalist Party in May similar concerns have been raised in a number of quarters. So how serious is it? – What should be done? – and how might this affect Northern Ireland?

The United Kingdom is rare among nation states in having an unwritten constitution. True, it does have a number of constitutional building blocks ranging from Magna Carta 1215 to the Human Rights Act 1998 but there is no overarching comprehensive charter.

The UK is a unitary (essentially non-federal) state based on the principle of parliamentary sovereignty established with the outcome of the 17th century English civil war. In a world with nuclear arms and UK membership of Nato and the European Community, belief in such sovereignty is highly questionable but, as a legal principle, it remains at the heart of the constitution and judicial practice.

Written constitutions come in a variety of forms; some, such as that of the United States, have proved remarkably effective and capable of responding to changing times and circumstances, while others have all too often proved little more than propaganda used to promote a regime rather than protect citizens.

Written constitutions are almost invariably the product of revolution, war, or the result of the attainment of national independence (or integration) particularly after achieving freedom from colonial rule.

So why should voices be raised now to suggest that the time has come for the UK to adopt a written constitution?

First, there are the troubled questions prompted in relation to the future of Scotland and the continuing debate between an independent Scotland or ‘Devolution Max’.

‘English votes for English laws’, which most Conservative MPs apparently favour, again raises the West Lothian question, which was first aired more than 40 years ago by Tam Dalyell MP. It is a question that might also be asked in relation to votes at Westminster by Northern Ireland as well as Scottish MPs.

Next, there is the uncertainty over the likely outcome of the in-out European Union referendum promised for 2017. What would happen should there be an overall UK majority in favour of leaving Europe but a majority in Scotland votes to remain?

The prospect of constitutional disarray in such a scenario is obvious.

Then too there is the more recent suggestion that there should be a new British bill of rights, which would replace, or down-grade, the European Convention on Human Rights as incorporated in the Human Rights Act; this latter issue would also highlight a feature of the Stormont Agreement, which has the added characteristic of being an international treaty between Britain and Ireland and which expressly supports the operation of the European Convention.

So is a written constitution inevitable? Probably not – or at least not in the immediate future if such hazardous political issues are avoided or successfully negotiated.

Many will point to the strengths of the UK’s unwritten constitution and place reliance on long-established conventions and practices in securing rights. In some respects it can be argued that the UK has already adopted an almost quasi-federal character with its patchwork devolutionary schemes operating in Northern Ireland, Scotland and Wales – and which shortly will be supplemented by new powers to be conferred on metropolitan areas/mayors in England. The proper role of the judiciary in relation to any new framework will require to be defined.

While dramatic change may be unlikely, to turn a blind eye to these issues would be foolish. Lord (Horatio) Nelson’s ocular condition is not an asset when dealing with such matters. As an interim measure there would be value in creating a UK-wide constitutional convention empowered to consider these matters and to bring forward recommendations – a suggestion incidentally earlier made by Prof Bogdanor.

Brian Garrett is a Belfast-based campaigning lawyer