Neuberger raises question of UK written constitution
The question whether it is now time for the United Kingdom to have a writtem constitution has been raised by Lord Neuberger, President of the UK Supreme Court, who said there were "powerful arguments" why it might be.
In a speech to the Legal Wales Conference 2014, Lord Neuberger said that while the country had "managed pretty well" to date without a written constitution, times changed and "if, and it is a big 'if' which is ultimately a political decision, our system of government is going to be significantly reconsidered and restructured, there is obviously a more powerful case for a written constitution".
Emphasising that he was "genuinely no more than raising the question", the judge recognised that there were arguments against, such as "why mend it if it ain't broken?", and what works for one country may not work for another. He added that "it could be said to risk forcing an inherently flexible system into an artificial straitjacket", and it could not in itself guarantee the rule of law, while the UK had enjoyed longer stability than any European country.
However, he continued, it could be said that we lived in an increasingly complex world where every activity and organisation seemed to need formal rules, "and there is no obvious reason why that should not apply to the most important organisation of the lot"; it might be thought unsatisfactory that an international treaty, interpreted by an international court (the European Convention and the Human Rights Court) acted as a "semi-constitution"; if we did have a constitution, "this would presumably have primacy over decisions of the Human Rights Court in Strasbourg and even those of the EU Court in Luxembourg"; and further, "the implications of the Scottish referendum are likely to be significant in various ways, and in particular as to the basis upon which we are governed".
Lord Neuberger added: "Writing a constitution may help focus minds on the details of the restructuring, and, once the restructuring has occurred, a new formal constitution should provide the new order with a clarity and certainty which may otherwise be lacking. On the other hand, it remains the case that grafting a written constitution onto our pragmatic system would almost inevitably involve something of a leap in the dark, and many people may fear that it would turn out to be a classic example of a well-intentioned innovation which had all sorts of unintended and undesired consequences."
He looked forward to the report of the House of Commons Political and Constitutional Reform Select Committee, currently considering these issues, which is due before the next general election (its consultation is running until January 2015).
Referring to the balance of powers between the branches of government, Lord Neuberger also observed that "pure democracy will not do on its own", in that the rights of minorities had to be protected; that Magna Carta, of which only three out of 60 provisions had not been repealed by simple parliamentary statute, "is not and never was a constitution"; that "unelected judges", as secitons of the press liked to label them, did not override Parilament in this country in the way they do, for example, in the United States; but that the power of the UK Supreme Court to do so in the case of the devolved legislatures was likely to become more significant.