Is now the UK’s ‘constitutional moment’?
Some of the country’s leading lawyers gathered in Middle Temple yesterday evening to consider whether now is the time for the United Kingdom to adopt a written constitution.
Chaired by Supreme Court justice Lord Mance (who did not give his views in the debate but did make notes and yawn quite a lot too), the panel was made up of four constitutional law practitioners and academics. While some thought the UK should stick by its constitution — fundamental principles which lay down how a state is to be governed — others thought now was the time for an update.
One debater, Sir Jeffrey Jowell QC, was particularly pro-UK written constitution. A public law specialist at Blackstone Chambers, Jowell opened his case by admitting:
Some believe our unwritten constitution is not worth the paper it’s not written on, but it has served us rather well.
Despite this acknowledgement, Jowell thinks we should follow the norm and adopt a “simply-worded” codified constitution, and to do it now.
Sir Jeffrey Jowell QC (@BlackstoneChbrs) on the poss of a written UK constitution: "every other nation has succeeded so what's the deal?" 😂
— Legal Cheek (@legalcheek) May 4, 2017
Why the urgency? “The EU referendum has shown that we have deep divisions — deeper than I’ve ever known,” he said. Given the public’s increasing distrust of those that represent us, we must ask ourselves whether we are sufficiently happy that minority rights and devolution agreements will be protected by majoritarian rule. “Nothing is permanent when parliament reigns supreme,” he reminded us.
Oxford professor Alison Young, sitting beside Jowell, disagreed with him, and used the public’s distrust of parliament to argue that it’s “certainly not the right time” for the UK to write a constitution.
Speaking yesterday at The European Circuit event, Young said the disconnect between the public and the “elites” will only be exasperated by a written constitution, which may well be viewed as just another example of the elites telling the public what to do. Now is such a divisive time set against a backdrop of political issues; it can be difficult to step away from this and think more widely about what should be in our constitution.
— Katie King (@legalcheek_kk) May 4, 2017
The two other panellists weren’t quite so forthcoming in nailing their ‘should there be a written constitution in the UK?’ colours to the mast, but did offer an insight into countries that have already benefited from such codification.
Professor Stefan Vogenauer, a German legal scholar and former Oxford professor, was of the view that if you ask the average “man on the Düsseldorf omnibus” whether having a codified constitution is a good thing, they’d say it was. But it’s not a panacea: Germany had a written constitution in the 1930s but that didn’t stop Hitler’s ascent into power. The country’s 1949 adoption of a more developed constitution “was a no-brainer”, but is now the UK’s “constitutional moment”? “I’m not so sure.”
University College Dublin’s Eoin Carolan was on hand to offer his audience of mostly barristers an insight into the Irish constitution.
Like Vogenauer, associate professor Carolan said codified laws have many advantages — accessibility and clarity, for example — but at a time where many are sceptical of experts and politicians, would it be right to introduce a constitution written by experts and politicians?
We’ve muddled along without the pressing need for a written constitution until now, he said; if the union was to break down, however, that could well prove catalytic.
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