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Time for a written constitution

20 May 19

The ongoing controversy since the Brexit referendum, and in Scotland over a new independence vote, has exposed the drawbacks of the unwritten British constitution and the need for clearly stated rules

by Alistair Bonnington

No matter our allegiances and biases, we can probably agree that the Brexit debacle has lowered the public's estimation of our current crop of politicians even further. Surveys make it plain that the electorate are more than ever concerned about a lack of intelligence and integrity in a significant number of our MPs and MSPs. (See, for example the Hansard Society survey results reported in The Guardian on 8 April 2019: article by Peter Walker.)

Understandably, the public blame our elected representatives for the entire sorry Brexit mess. But I wonder if that is completely fair. Is there not in the UK, and in Scotland too, a fundamental problem arising from the present legal structure which underlies our governmental institutions, which has contributed to, if not caused, the problems we have seen over the past few years?

We do not have a written constitution of “superior” law. In our constitutional setup, much – perhaps far too much – is left to vague unwritten conventions. The observance of such conventions relies solely on those in political power. There are no sanctions for non-observance.

In fact the whole concept of an unwritten constitution is dependent on politicians exercising good faith and taking a mature and sensible approach to constitutional issues. Today, few voters believe that good faith and common sense are qualities found in many of today's political class.

For example, don't you recall being taught at university that when the Government was defeated in the Commons on an important vote, the Government had to resign? The present Westminster Government has lost all the important Commons votes on Brexit, but has never even considered resigning. To be fair, the parties in opposition have hardly pressed it to resign. Presumably that's because they see the Government's Brexit task as impossible, and certainly don't want to be landed with the job themselves.

So on the “good faith” point alone, there is a problem, But it goes much deeper and wider than that.

Court's role

A written constitution would have guided the Brexit process. First, by being the legal touchstone against which the barrowload of new laws associated with Brexit would be judged. Secondly, by providing a proper forum – the Supreme Court would become the Constitutional Court – for the resolution of disputes arising during the process.

Even under the existing system, the Supreme Court has been significantly involved in the long Brexit story. On one view, it has only been the court's intervention which has prevented politicians from behaving in a dishonest and disreputable way in their dealings with the Brexit process. The court decided that Parliament had to approve Brexit. It wasn't a matter for the Government alone: see Miller v Secretary of State [2017] UKSC 5.

From the viewpoint of my argument, the most significant part of that judgment was the court's assertion that the Sewel convention cannot be enforced by courts. It is up to politicians to deal with the convention. So in other words, it is not a part of the current constitution which can be relied upon.

In a separate case the court also determined the competence of the legislation passed by the Scottish Parliament to deal with effect of Brexit on Scots law: see Reference by Attorney General and Advocate General for Scotland [2018] UKSC 64.

Over many years now the Supreme Court has had the task of judging domestic law as against fundamental law, viz the ECHR or one of the EU treaties. So there can be no doubt that the expertise to carry out the judicial function of interpreting and applying a written constitution is already present in our higher courts.

Referendum questions

It surely is a glaring fault in our system that we had a referendum on the UK leaving the EU, without any previous determination of the status of that referendum and its result? Was it only advisory, or binding? Can there be another referendum on the terms of the leaving deal on offer from the EU; and at any such second referendum, is it competent to include an option to vote for the UK remaining in the EU?

These are precisely the kind of questions which would never again require to be asked if we committed our constitutional law to writing.

This is not just a UK legal problem. In Scotland, we had a referendum on independence in 2014, without determining either the status of the vote, or whether and when another referendum on the same question might be held. That was downright daft. The result has been that post the independence referendum, Scottish politics consists of nothing other than a tedious nationalist v unionist argument as to whether any second vote can be held. Written rules determining whether and when a second referendum could take place would have prevented this infantile spat, which seems to have taken up nearly all of the time available to Scottish politicians. That has resulted in little of a meaningful nature being achieved by the Holyrood Parliament since 2014. (I emphasise that I'm not saying that it ever achieved very much meaningful between 1999 and 2014 either.)

But the most important point is that in any mature democratic country, these votes – on Brexit and on Scottish independence – would have required a weighted majority before they would be legal authority to alter the status quo. The reason why all proper democratic constitutional systems have such a provision, is that a majority of just over 50% is no basis for making decisions of the enormity of leaving the EU or breaking up the UK. A simple majority system allows a fundamental and irreversible step to be taken, when the voters are almost equally divided on the subject. This is self-evidently an excellent way to achieve bitter division between members of the public within the one state. A few centuries back it would have been a good way to start a civil war. Presumably that's why no other democratic country (as far as I know) has such a simple majority provision in its constitution for referendum votes on subjects of such importance. Below is a list of the provisions of the constitutions of a few countries on amendment.*

We know all too well that such division has happened. The debate surrounding the 2014 Scottish referendum was described by the Scottish historian, Professor Neil Oliver, as “a hate-fest”. Although the result (to reject independence) was nowhere near as close as the Brexit poll, nevertheless the perceived closeness of the vote (by those who seek to rewrite history) has produced a continuing degree of civil strife in Scotland which has not been experienced before in my lifetime. A normal constitutionally defined weighted majority rule would have prevented the damaging societal discord we currently live with.

Disenchantment

There seems to me to be a deep public desire for certainty in our public life at the moment. Plainly politicians are failing to provide that certainty. A written constitution would give us a clear structure within which politics can be played out. That structure of itself would lead to more certainty. After all, at the end of the day a constitution derives its legal authority from the people. It rules over the politicians to ensure, so far as possible, that they do the job entrusted to them by the electorate, and don't get ideas above their station. Of late, both in Westminster and Holyrood, such a restraint on our current politicians is needed.

The present disenchantment with political classes is not a problem confined to these islands. Across Europe, long established political parties have been overthrown and newcomers elected in their place. This is true of such ancient democracies as France, where En Marche went from its creation to having a majority of seats in the Assembly within 18 months. Often, it seems one of the main attractions of the candidates is a lack of any previous political experience. This is seen by the voters as a virtue. So TV personalities, comedians and the like are voted into office. A rather alarming poll in America found that many millions of voters would vote for Homer Simpson if he was on the ballot. To transfer this to Scotland, it's difficult to see any of our Holyrood politicians beating Gary Tank Commander or Chief Constable Cameron Meikleson from Scot Squad in a poll.

Lesson from America?

There is a strong argument that this “anti-politician” vote is what happened in America when Donald Trump beat Hillary Clinton in the 2017 presidential election.

But on Trump, here is the difference. In America, the constitution sets out how the system of government must operate. The President's power is considerable, but it is limited by intervention, or lack of support, from the other two arms of government, namely Congress and the Supreme Court. So in this way, America has been able to deal with the extraordinary experience of having Trump as President. There is simply no way the UK system could withstand that kind of phenomenon. We don't have the constitutional laws in place to ameliorate the effects of a Trump-like Prime Minister.

You may have seen at the time of Trump's election, the spoof cartoon reproduction of the famous Trumbull painting, which depicts Thomas Jefferson's subcommittee reporting back with the draft constitution to the Philadelphia Congress. The spoof has a speech balloon from Jefferson's mouth saying: “I just can't help wondering if we should have put in something in case the people elect a complete idiot to be President.” But in reality, the brilliant Jefferson had that danger covered very well already, as the last two-plus years of Trump's presidency have proved.

Although I am not saying that we have a Trump-type figure likely to become UK Prime Minister, it is true that as polls show, UK voters despair of our existing politicians. As elsewhere in Europe, they are perfectly willing to vote for something new. This could be an ultra right wing government as it has been in many EU countries. The demise of newspaper reading – particularly amongst younger voters – means that information on which votes are determined largely comes from the internet. There is now plenty of evidence that malign intervention from the Russians, and perhaps other foreign powers, is aimed at promoting extremist political parties within democratic Europe. Democracy has never been more vulnerable. Not having a written set of constitutional rules puts this country in a weaker position than other democratic states.

We, the people

As we studied constitutional law at university back in the early 1970s, most of us thought it inevitable that the benefits of constitutional democracy would spread throughout the world's states during our lifetime. As it has turned out, nothing could have been further from the truth. Democracy is pretty much confined to Europe and British Commonwealth countries. But even in states where democracy exists, it can only survive if it keeps pace with the needs of the country it serves.

In the case of the UK, it is surely self evident that the creation of the Scottish Parliament and Welsh Assembly alone require a written constitution to be created. Of course such a process would not be easy, and unfortunately our present politicians are the kind of people who find almost any task too hard for them. But the expertise is there, within the judiciary, the universities and those who may nominally hold party political office, but thankfully serve a greater god. If we do nothing, then it seems certain that something equally as disastrous as both the Brexit mess and the Scottish independence referendum mess will occur in the future. I believe that both in the UK and in Scotland we, the people, are sensible enough to be able to do a lot better than that.

Alistair Bonnington, former Honorary Law Professor, University of Glasgow

* Constitutional change: some rules abroad

USA: two thirds of the members of both House and Senate; or a two thirds majority of States at a national convention.
Canada: the amendment has to be adopted by both houses of the legislature, plus a two thirds majority of all provincial legislatures, and representing more than 50% of Canada's population.
Australia: amendment has to be passed by legislature, then needs a weighted majority of voters in a referendum.
Switzerland: same as Australia.
Germany: amendments need two thirds majority of both houses of the legislature.
Belgium: two thirds majority of the representatives of the Senate.
Poland: two thirds of the deputies in the legislature.
Czech Republic: two thirds of deputies and senators have to approve.
Sweden: there has to be a “cooling-off” period between two votes in the legislature on the proposed amendment. There has to be a general election between the two votes.
Denmark: same system as Sweden.

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