Towards a Codified Constitution?

The UK is almost the only democratic country in the world not to enjoy a formal constitution. Stephen Hockman QC looks at the case for codifying the nation's constitution.

One of the little known achievements of the government under Gordon Brown was to re-examine the possibility of a codified constitution. It is sometimes assumed that a codified constitution would necessarily have entrenched supra-legislative status as it does for instance in the US. It will be seen, however, that this is by no means the case.

I start by saying a little more as to the meaning of the expression “a codified constitution”. Famously, the UK is almost the only democratic country in the world not to enjoy a formal constitution (I think Israel may be the only other country in this position). That is not to say that our constitutional rules are entirely unwritten, since clearly many of these rules are now contained in legislation and (almost by definition) every part of the constitution is written down somewhere even if nobody knows exactly where!

But the minimum aims of those who are in favour of a codified constitution are to bring together in one place the main principles and rules under which we are governed so that (a) they are accessible to ordinary people up and down the country and (b) if there are proposals for such rules to be changed then the implications of any such change can be understood, and indeed the mechanism for change can be transparent.

I have often thought that when those in authority argue for the flexibility of a so-called unwritten constitution, what they really mean is that they would like to preserve the ability which they currently enjoy to make amendments to our constitutional arrangements even though hardly anybody may notice this occurring!

I now consider three main approaches to the question of status. The first is to maintain the status quo, i.e. to leave our constitution effectively in its present un-codified state. To many of us, this seems a most unsatisfactory outcome. One of the reasons was expressed in a recent paper published in the Justice Journal “Towards a Codified Constitution” by Vernon Bogdanor and others (including myself) in which we made the following observation:

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. But that is the position in which the citizen finds herself in relation to the British constitution.

Another reason why the present state of affairs cannot endure indefinitely is very clearly described by Lord Neuburger Master of the Rolls in his recent lecture “Law Reform – where will it all end?” given at a Law Commission lunchtime seminar on 2nd December 2010. Lord Neuburger draws attention to the well known dicta by Lord Steyn and other members of the House of Lords in the case of Jackson v. Her Majesty’s Attorney General [2006] 1 AC 262 (the Hunting Act case) in which it was suggested that there are now potentially limits on parliamentary sovereignty, and that parliamentary sovereignty itself is a construct of the common law and therefore ultimately in the hands of Judges.

On the other hand, the late Lord Bingham in the same case expressed an entirely opposite view, in reinforcing the fundamental status of parliamentary sovereignty within our constitution. As Lord Neuburger states, if we are moving away from what he calls “the Diceyan picture of our constitution” then “the manner in which we are needs to be examined and articulated, not least because of the existence of disagreement on this issue at the highest possible level amongst the most respected jurists”.

The lack of clarity in this area has recently been highlighted in the report of the European Scrutiny Committee of the House of Commons when considering the European Union Bill introduced by the Coalition Government.

If retaining the status quo is not a respectable option, then, in the view of some highly reputable constitutional theorists, the alternative is to move towards the adoption (no doubt following some form of referendum) of a written supra-legislative constitution. This approach was recently most clearly articulated by Rabinder Singh QC in his Tom Sargent Memorial lecture “The UK Constitution – Time for Fundamental Reform”.

However the objection to this view is precisely that it confers upon an unelected, and perhaps relatively conservative, judiciary powers which, in a democracy, ought to be retained by the people themselves or at least by their elected representatives. This point is recognised by Lord Neuburger himself when he notes that it is the function of the Courts in our society to interpret the laws and to see that they are obeyed. “This is not the same as acting as, to borrow a phrase from the US Constitution, ‘we the people’.”

It seems to me however that there is a middle way (I hesitate to call it a third way) between these two extremes. This is to move towards a consolidating and codifying Act which brings together the main constitutional rules and principles (insofar as it is thought convenient and necessary to do so). The status of such an enactment need be no greater than that already enjoyed by the Human Rights Act 1998. As in US, it is the duty of the Courts to consider (when the issue is raised) whether other legislation (as well as the acts of public bodies generally) is compatible or incompatible with the provisions of the Act and of the European Convention on Human Rights which the Act brought into force as part of our law.

However the powers of the Court in carrying out this task are limited to granting the declaratory relief, that is (in those rare cases where it has seen fit to do so) a declaration that the particular piece of legislation in question is incompatible with the Convention. A constitutional measure enacted alongside (or even incorporating) the Human Rights Act 1998, and enjoying the same status as that Act, would have all the advantages of a codified constitutional enactment, but it would leave the ultimate sovereignty in the hands of Parliament (as is the case in relation to human rights). The role of the judiciary, appropriately, would be limited to questions of legal interpretation.

I mentioned in the preceding paragraph that the kind of codifying enactment which I have in mind could either sit alongside or subsume the Human Rights Act. I make it clear that on the question of whether there should be a “Bill of Rights” for the UK, I personally retain at least a partially open mind. I would be adamantly opposed to any cutting back of the rights which we currently enjoy under the European Convention. On the other hand, there are increasingly powerful arguments in favour of incorporating into a British Bill of Rights certain “socio-economic rights”.

It seems to me that to recognise that the constitutional status of a Bill of Rights would be legislative rather than supra-legislative ought to remove some of the objections to the incorporation of socio-economic rights.

Stephen Hockman QC is head of chambers at 6 Pump Court, London and a former Chairman of the Bar

This article first appeared in 'Leadership in an Age of Change & Austerity', published in May 2011 by the Association of Council Secretaries and Solicitors (ACSeS).

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