Pretence: Why the UK needs a written constitution

Barrister Austen Morgan’s learned, provocative and entertaining case for the creation of a codified constitution has a big flaw.

But first, the highlights. Pretence opens with a lively romp through constitutional history from roughly 43CE (AD). Some sacred cows get little mercy: ‘As befits a foundational text, it was quickly forgotten,’ is Morgan’s verdict on Magna Carta. Established authorities come under new scrutiny: apostles of A.V. Dicey may wish to brace themselves. As do some institutions. Morgan points out that the ‘constitutional visibility’ of the senior judiciary is surprisingly recent in origin, which he dates from sometime between the Supreme Court of Judicature Act 1873 and the opening of the Royal Courts of Justice in 1882.

A welcome thread throughout is Morgan’s ability to look beyond England; as you might expect, his Irish history is not necessarily the Hollywood version. He is forthright on the ‘unnecessary’ Brexit border row: ‘The question of the Irish border was one for the EU... if Brussels wanted no hard border, that was the EU’s choice – it should not have been imposed on the UK.’

So where is the flaw? Basically, it is that the manifestly jerry-built nature of our constitution, and the anomaly of the UK being almost alone in lacking a codified document, do not in themselves create a case for codification now.

Tacitly acknowledging this, Morgan proposes three reasons for considering reform in the ‘next few years’. First is that we have the opportunity, thanks to Brexit. Second is the desirability of a UK bill of rights. Third is the imperative of formulating a settlement which keeps Scotland within the UK.

All three look oddly dated, now. Enthusiasm for the opportunity went out with Liz Truss; for the desirability, with Dominic Raab. As for the need to cater for an independence-minded Scotland, that is less of an imperative than it appeared six months ago.

Meanwhile, there is every reason to predict that, sometime next year, our battered ad hoc constitution will once more fulfil its fundamental task: ensuring that one political lot do not stay in power for more than a dozen or so years.

Paradoxically, such a transition might bring in a government committed to meddling with the machinery. Sir Keir Starmer seems to have gone quiet over the report of Gordon Brown’s constitutional commission, but who knows what will find its way on to the manifesto. Pretence’s closing chapter is the proposed draft preamble of a constitution for a federal UK. Its author may end up regretting its creation.

Michael Cross is news editor at the Law Society Gazette