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A Written Constitution?

by Brian Risman, Publisher and Founder, The Law Journal UK and Consultant in International Law

Does a written constitution provide greater accountability and democracy?

A major issue in the United Kingdom's legal sphere is the lack of a written constitution.  Proponents state that a written constitution would provide greater accountability and democracy. Opponents, on the other hand, point to other countries with written constitutions (such as the former U.S.S.R.) guaranteeing rights that, in fact, are ignored. Traditions, say the opponents, provide a greater protection.

First, a written constitution is supposed to be the defining essence of a country. However, more often than not, it is the result of political compromises. A case in point is the U.S. Constitution which contains material regarding the rights of slave owners, although those provisions are long defunct. Nonetheless, the U.S. Constitution does include these items.

Second, a written constitution does have impact of changing the nature of a country. While the change can be for better or worse, the constitutional impact of divergences from long traditions does guarantee political and social change. However, that change may not always result in greater accountability and democracy.

Third, a written constitution needs to be enforced. That enforcement comes through the court system with interpretations being made most frequently by the highest court in the land. That judicial enforcement power has an interesting side effect -- namely, that the politicians in Parliament will frequently avoid deciding controversial issues by 'passing the buck' -- stating that the issue is a constitutional one for the courts to decide. The courts, on the other hand, will frequently pass the ball right back to Parliament, stating that the issue is 'political' in nature. That has been the result in Canada since the introduction of the written Constitution and the Charter of Rights and Freedoms in 1982.

Fourth, a written constitution defended by the courts can become undemocratic, causing social upheaval. This is especially critical with the creation of the new UK Supreme Court, replacing the House of Lords as the final court of appeal. The UK Supreme Court seems to be part of a migration towards a US-style 'checks and balances' between the three branches of government -- executive, legislative and judicial. It also reflects a move away from the British Parliamentary tradition towards a quasi-US model. Let us look at the United States as an excellent example of this situation. While the Canadian courts avoid the controversial issues, the U.S. Courts have a long tradition of 'nation building', which is another way of stating that the Courts will impose their will on the populace. If you approve of the decision, then you love the Court. However, if you oppose the decision, then the feeling is otherwise. The same Supreme Court -- that decided Brown v Board to eliminate school segregation between blacks and whites -- almost a century previous decided Dred Scott v Sanford, a case supporting slavery (even though neither party was actually a slave) that enraged the non-slave North and precipitated the U.S. Civil War. The problem with the activist approach is that the Court does not rely on political consensus, making decisions that may divide rather than unite. An example is Roe v Wade, which legalised abortion in the 1970s. Whatever your stance is on the abortion issue, that decision has to this day resulted in divisive demonstrations and politics. The parties involved did not compromise -- they polarised. By comparison, the Canadian Supreme Court avoided making a political decision on abortion by referring the applicants to Parliament. While that resulted in no action, no renting of the political fabric (as per the U.S. above) was caused by the Court in Canada.

Fifth, non-written traditions can still carry great weight even against the written constitution. A case in point was the implementation of the draconian War Measures Act in Canada during the October 1970 terrorism crisis. Doubts about the need for such measures led to the near-defeat of the Trudeau administration at the polls two years later. The result to this day is that although these extreme powers can be invoked, no government is willing to touch it. An example was the quick withdrawal of a Security Act  from Parliament in 1999 in preparation for Y2K. Public outcry was enormous, heralding back to the aforementioned War Measures Act. Similarly, the passing of a toughened Security Act  in Canada after September 11 was controversial and resulted in considerable safeguards being implemented. While Parliament could, of course, pass such legislation, rumbles from even with the majority Liberal caucus worried about comparisons with October 1970. Tradition and political experience protected civil liberties, not the written Constitution.

Given the above, is a written Constitution a wise choice for the UK? Obviously, implementation of laws such as the European Human Rights declaration can be considered a form of a written Constitution. However, the experience of other common law jurisdictions should be weighed in the debate. I do not believe there is a simple answer regarding the choice of a written or unwritten constitution -- but any changes should be weighed against the experience of sister countries.

Brian Risman, Publisher and Founder, The Law Journal UK and The Law Student UK


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