The term ‘Written Constitution’ is often, indeed, usually used somewhat misleadingly. Most of the constitutional rules of the United Kingdom are already written down in statutory form. It is not as if there is some court of elders gathering around a campfire making constitutional rulings based on folklore handed down from generation to generation, conducting affairs as if in some red Indian pow ow.
The British constitution is only unwritten in the sense that its rules are not contained in a single constitutional document, as is the case in most other countries, indeed the vast majority of other countries. Such constitutions are generally entrenched, that is to say, it is more difficult to alter the terms of the constitution or at least some of its terms that would be the case in a normal statute. This might involve typically the need for a two-thirds majority of legislators to vote in favour of change. There might also be time constraints on how a change may be made. Alternatively changes of certain provisions in the constitution may require the backing of a plebiscite. As will be seen, without any deliberate move to an entrenched constitution, the United Kingdom has already moved some way down this path. Over the years Acts of Parliament have contributed towards the constitutional framework of the United Kingdom.
Thus, the Union of England and Scotland Act 1603, which provided for the investigation of the possible union of England and Scotland beyond the Union of the Crowns is such an Act. This was not effective, however, and the two kingdoms were eventually united over a century later by the Acts of Union 1707. Other Acts have contributed to the constitution.
The Bill of Rights of 1689 was an Act of Parliament providing that the succession of the Crown should pass to William and Mary as joint sovereigns of England and Wales. The Habeas Corpus Act of 1679, defined and strengthened the prerogative writ of Habeas Corpus, a device to oblige the courts to examine the legality of a prisoner’s detention. Perhaps most famously we have the Magna Carta 1215 or Great Charter of the Liberties of England. It also has chapters dealing with Wales and Scotland.
This was the first statement of rights imposed upon a King of England by a group of his subjects, the Barons. It was an attempt to limit the King’s powers by law. This Charter is, of course, well known throughout the English-speaking world and beyond, and next year will be the 800th Anniversary of its signature. More recently we have had the Parliament Acts of 1911 and 1949, two Acts which limit the powers of the House of Lords to block legislation that has been passed by the Commons. All of these documents are statutory provisions that contribute towards the constitution of the United Kingdom. What the United Kingdom lacks is a single consolidating document, a written constitution, entrenched and recognisable as the constitution of the land. Additionally, a feature of countries with unwritten constitutions so called, is the importance of constitutional conventions which are not codified.
Thus, conventions that surround the use of the Royal Prerogative, Ministerial responsibility, the rule of law and the sovereignty of parliament are all important parts of the United Kingdom’s constitution. Most constitutions in the world were written constitutions. Few countries have unwritten constitutions. Israel, New Zealand and the United Kingdom are amongst the few that do not have written constitutions. Of course, the presence of a written constitution is certainly no guarantor of fundamental liberties and human rights. Some of the worst despotisms in the world have written constitutions. My argument is not that a written constitution will always guarantee fundamental rights and constitutional rules, but that in a developed country it provides certainty. What I am keen to investigate this evening is whether a written constitution would, in the case of the United Kingdom, help the efficient running of the constitution, and in the context of a country with democratic rights and liberties traditionally protected by the courts, put some of those fundamental rights on a different level. It is somewhat ironic in the case of the United Kingdom that with few exceptions, up to and including the Basic Law in the case of Hong Kong in 1997, the United Kingdom has handed over freedom to its former colonies with the backing of a written constitution. It may be asked why, if this is so helpful to our former colonies, do we not follow this good practice ourselves. Too often it seems that we take the view that everybody is out of line, except Little Willie, to adopt the language of the proud mum watching her son keep pace in time when all the others are marching out of time.