Constitutional thoughts

It is often said that the UK does not have a written constitution, but this is not completely true. What passes for the constitution includes a number of conventions which somehow just developed over the years, but it is mostly cobbled together out of various Acts of Parliament, which are are most certainly written down. A more precise statement is that the UK does not have a codified constitution. There is no single document which sets out such important matters as how the country is to be governed and the rights of its citizens. In this respect, the UK is very unusual, but since the country has got by for over three hundred years without a codified constitution, it clearly is not essential.

Some people would argue that the lack of a codified constitution is a good thing, as it allows a degree of flexibility that the rigid framework of a constitution would not. Indeed, if one looks at the American constitution, there are bits that are well past their ‘best before’ date. For example, there is the electoral college system for presidential elections, which made sense when the Twelfth Amendment was ratified in 1804, but which means that only voters in ‘swing’ states can influence the outcome, and the candidate with the greatest number of votes may not win the election; in 2000, Bush received 543,895 fewer individual votes than Gore nationwide. Also, debates on gun control can end up as arguments as to exactly what the Founding Fathers meant by the ‘right of the people to keep and bear arms’, although the Second Amendment was written in very different times and a muzzle-loading musket is very different from a modern assault rifle.

Another argument against the value of a codified constitution is that a government may choose to ignore parts of the constitution which get in the way of what it wants to do, particularly if it has the judiciary on its side. Many people would argue that the extent to which the NSA is spying on American citizens, according to recent revelations, is a wholesale breach of the Fourth Amendment, yet there is no sign that this surveillance is likely to be significantly curbed.

On the other hand, although a codified constitution may have its limitations, the lack of one does create potentially serious problems. Firstly, is a convention enforceable? What would happen if, for example, a future king were to be so strongly opposed to some bill which had been passed by Parliament that he refused to give it the Royal Assent? The only thing that is certain is that there would be a ‘constitutional crisis’.

Secondly, a codified constitution would typically require a supermajority or a referendum to approve any changes to the constitution, but the Acts of Parliament which make up so much of the British constitution are no different in principle from any other piece of legislation, and can be repealed or modified by simple majorities in both Houses of Parliament. The Fixed-term Parliaments Act 2011 will have the effect of increasing, at least slightly, the period between general elections, but was passed with little publicity; there are probably many people in the UK who do not know that a Prime Minister no longer has the power to call an early election, or that in certain circumstances there could be a change of government without an election.

In the UK, the Parliament (formally, the Crown in Parliament) is held to be sovereign. If the government is ruled to be acting illegally, then Parliament can change the law to make the government’s actions legal, even if this means passing ex post facto legislation (prohibited by the constitutions of many countries), as was done to avoid paying compensation to unemployed people who had been coerced into performing unpaid work. Taking this concept of the sovereignty of Parliament further, if a government with a working majority facing defeat in the next general election were to pass a bill cancelling that  election, this would presumably be constitutional and hence legal (although probably far too risky in other ways).

Good government requires a system of checks and balances. In a representative democracy, the electorate entrust a great deal of power to those whom they elect to Parliament. A carefully designed, codified constitution, changes to which must be approved by the electorate in a referendum, can allow the electorate to retain more of that power and reduce the risk of the Parliament abusing its powers. The constitution is then effectively the supreme law of the country, which cannot be amended without the consent of the people; if the government oversteps the limits set by the constitution, they can be challenged in the courts.

The Scottish Government has pledged that, if they are re-elected in 2016 as the first government of an independent Scotland, they will develop a new constitution following a debate in which the government’s voice will be just one amongst many – a manifestation of democracy which we would not be offered by Westminster. The British Establishment’s representatives may indulge in rhetoric about democracy, but they will do all they can to keep power in their own hands, so that they can protect their own interests and maintain their privileged position. A codified constitution would constrain them, and so they will continue to use the superficial attraction of tradition to maintain the status quo.

In my view, the promise of a proper constitution for an independent, more democratic Scotland is one of the most important reasons to vote ‘Yes’. Independence will give us the opportunity to create a modern constitution, encapsulated in a single document and hence accessible to every citizen, rather than a vague patchwork of laws and conventions cobbled together over hundreds of years and subject to the whims of an archaic parliament of ‘Lords’ and ‘Commons’.


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