The Brexit crisis shows why the UK finally needs a written constitution

Our invisible and silent constitution has allowed politicians to choose any principle to justify their arguments and undermined human rights. 

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Yesterday was a day of great spectacle. Boris Johnson’s government decided to close down parliament for five weeks, a move obviously designed to prevent MPs obstructing a no-deal Brexit. It was justified, in Orwellian fashion, as business as usual. A million people signed a petition opposing the move. Protests were mounted. 

It was also a day of absurdity, particularly the debate over the “constitutionality” of the government’s move. There was no shortage of commentators, including the Speaker John Bercow, arguing that in a democracy with a sovereign parliament it was a “constitutional outrage” to suspend parliament during a national crisis. From the other side, it was argued that governments routinely deploy the power to prorogue parliament. Nothing to see here. Jacob Rees-Mogg said that the move was constitutionally proper because parliament and the cabinet’s duty was to “follow the will of the nation”. 

The debate over constitutionality is fascinating and important. But it is also absurd because we have no written constitution. Instead, we have a hodgepodge of procedural rules, ancient customs, conventions, norms, and the Queen’s obscure power-not-power. We have airy principles. But, ultimately, our “unwritten” constitution means that in times of crisis, such as now, anyone can choose a principle to justify their arguments. As Groucho Marx may have said, “these are my principles, and if you don’t like them ... well, I have others”. Perhaps Bercow is right to prioritise parliamentary debate. Or maybe Rees-Mogg has a point on the “will of the nation” taking precedence. Our unwritten constitution will not come to the rescue. Unwritten, in this case, means absent, invisible and silent.

The current crisis must be solved politically or perhaps legally. MPs may be able to find a crafty ruse to thwart the government. Perhaps the Supreme Court will ride to the rescue as it did in the Gina Miller case — but don’t underestimate the judiciary’s aversion to intervening in essentially political matters. Whether this crisis leads to national disaster or redemption is, unfortunately, a matter of which side happens to find the best procedural fiddle. What a mess. 

In the long term, we must work towards a written constitution. Practically every other developed democracy on Earth has one. Is it too much to ask that at times of national crisis we have a clear set of principles and rules, arrived at by broad consensus, which will inform our behaviour and prevent abuses of power by crafty politicians?

Yes, there are plenty of arguments against. It will be an unnecessary distraction, a boon for lawyers and other elites who will fiddle with words for years while the country burns. We will lose our uniquely flexible unwritten constitution which has served us well for centuries. It will force us to confront issues, such as the proper role of the monarch and the independence of the UK’s four nations which are better left in their current convenient muddle. A constitution is no panacea, just look at the United States and its gridlocked system and politicised judges. The county is too divided to reach the consensus required for a lasting constitutional settlement. 

I think those arguments are alluring, in the way that arguments against taking difficult paths tend to be. I have no doubt that attempting a written constitution will be risky. But it’s a risk worth taking. A good constitution sets the rules of engagement between politicians. It entrenches basic rights. It lays out the essential principles of a political system through the prism of a nation’s history — usually in an idealised preamble (“We the people of the United States, in Order to form a more perfect Union ...”). It can provide a vision for the best version of ourselves as a nation. In our fractured society, we have never been more in need of that vision.

There are three key arguments for devising a written constitution now. 

First, Brexit. Leaving the EU will decouple the UK from a huge body of European law, including important rights protections, for example in the workplace. A written constitution would be an opportunity to anchor rights protections in our law. This is doubly important in the context of the longstanding political dispute over the legitimacy of the Human Rights Act, a debate which will resume as soon as Brexit is concluded. Our fundamental rights should not be treated as political footballs, to be kicked around by each government. They should be enshrined as they are in most other democracies. 

Second, devolution. The Brexit debate has both sidelined (in the case of Scotland) and foregrounded (in the case of Northern Ireland and the Good Friday Agreement) tensions over devolution. The “English question”, that is whether England should be treated as a separate polity in the UK system, remains unresolved and will not disappear. It is better to face difficult questions than allow them to fester and resentment to grow. A written constitution would at least address these questions together rather than, as we typically do, apply a disjointed approach as each issue arises in turn. I accept that the United States shows how a constitution can serve to exacerbate division, but there are plenty of other better and more modern models, such as Ireland and Canada.

The third reason is accessibility. Underneath our obsession with our “flexible” unwritten constitution is the British tradition of trusting that if things get really bad “the chaps” will ride to the rescue with their “common sense” to prevent real disaster (the same is argued of judge-made common law). But the inadequacy of this safety valve has been exposed by recent events. A 21st century nation cannot rely on this essentially aristocratic tradition. Our constitution should be ours to understand and debate, not left to professors, judges and politicians. 

I accept that a written constitution might only answer some questions while creating others. Every lawyer knows that, no matter how skilfully drafted, a law can never address every possible human situation which will arise. Our courts exist to resolve conflicts between competing interpretations of laws. But as the debate over prorogation has demonstrated, the situation in which we don’t know what our constitution says has to end. 

We must manage expectations. A written constitution will not solve all of our problems. But it may solve some of them, allowing us to build a post-Brexit consensus about the kind of nation we want to be. It could diffuse populist anger over elites by redistributing some of their power. 

As to how, I would favour a constitutional convention, as adopted in Ireland, where a group of randomly selected citizens, politicians and experts attempt to build consensus. Everyone should have the opportunity to contribute. This would take some creative thinking, though as social media demonstrates, there is no shortage of opinionated energy to be channeled. 

To paraphrase Homer Simpson, a time of crisis can also be one of opportunity. The Brexit crisis shows we cannot go on with an invisible constitution. It’s high time we wrote it down.

Adam Wagner is a barrister at Doughty Street Chambers and the founder of RightsInfo.