The case for a written constitution

A staple public law question has long been whether Britain needs a written constitution. One common argument in favour of one is that, however well the current system might have functioned historically, modern politicians have repeatedly shown themselves incapable of adhering to unwritten conventions and standards.

Firmly in that camp is Richard Gordon KC, who was so offended by the parliamentary ‘expenses scandal’ of 2009 that he went to the trouble of writing a book containing a draft constitution and arguments for its adoption. He has now updated it with a second edition. The book is well-produced, although an index would have been more useful to the target audience than the glossary.

Some parts of Gordon’s constitution are a familiar reflection upon the European Convention on Human Rights. But he also imports concepts from elsewhere, including a blunt right to ‘equality’ (though it explicitly allows for affirmative action) and a right to an ‘adequate standard of living’, both from the South African Bill of Rights, and the ‘rights of national minorities’ modelled on Romanian law.

Few would disagree with ‘negative rights’ – those which restrict the government’s power – such as the right to a fair trial and freedom of speech, though as always there will be disputes in any particular application. It is also a moot point how much better such rights would be protected under Gordon’s constitution than at present, albeit recent efforts to introduce ‘hate speech’ legislation suggest a stronger constitutional protection of freedom of speech might be welcome.

Where Gordon’s constitution overreaches is in providing written guarantees for substantive rights and duties including defence spending, free education and free healthcare. Each of those requires funding decisions that are unsuited to determination by litigation. The sclerotic planning system in England does not give cause for optimism that judicial oversight would improve decision-making in those areas.

The book is erudite and cogent. Ultimately, however, good governance is not simply a question of laws. Many countries, including former British colonies, have had beautifully written constitutions which proved no impediment to dictators. Conversely, an unwritten constitution has not stopped Britain (or New Zealand) from being one of the most democratic and free states in modern history (though inevitably far from perfect). What matters is the prevailing culture – which involves a great deal more than law and lawyers.

James Wilson FRHistS is an independent legal author. His most recent book is Lord Denning: Life, Law and Legacy (Wildy, Simmonds & Hill, 2023)