What lawyer would willingly enter into an agreement of any complexity that was not written down? So what is different about the web of rights and obligations that we inherit as citizens of the UK and subjects of the Crown? Yet, in defiance of almost every other country in the world except New Zealand, the British are taught, almost from infancy, to glory in their unwritten constitution.
Things are, however, beginning to change. The Government issued a green paper entitled ‘The Governance of Britain’ in July. After advocating a series of worthy but relatively cosmetic constitutional reforms, it speculates that, in time, we might be ready for a written constitution, or if this is too ambitious, a ‘concordat between the executive and Parliament’.
This has precipitated a spat between those who advocate caution in the face of the monstrous task of writing it all down (headed by the Constitution Unit director Professor Robert Hazell) and those who want to seize the time (political commentator Professor David Marquand).
The answer may be a paradox. We should argue for as much of the constitution to be written down as soon as possible, but recognise that this may not be completed any time soon. There is a value in the simple lawyer’s task of reducing current arrangements to writing, as Oxford’s Professor Vernon Bogdanor has proved by getting a bunch of his students to have a try. The result is revealing.
How many readers, for example, would correctly have defined the sovereign by reference to descent through the heirs of Sophia, Electress of Hanover? More seriously, how many would not be impressed by the list of powers still retained by the crowned descendant of a German princeling, which includes an oath of allegiance by all Crown servants and ‘the right to be informed upon all matters of state’.
The process of writing is not neutral: potentially, it invites questions about what is written. Take another example. The Attorney General has, by tradition, been the leader of the bar, a government minister and its chief legal adviser. Isn’t that two roles too many? Writing it down makes it clearer.
There are, of course, limits to any written constitution. You would look in vain, for example, for any indication of the overriding power of the Supreme Court in the US constitution. Read it and you would not remotely guess that the court would force the states to desegregate schools against the will of their elected representatives or that it would hold the line on abortion against a religious backlash. The founding fathers blatantly never dreamt of it. The court simply declared its powers in the early 19th century in a case that related to the unsavoury actions of an outgoing secretary of state. They were right on the factual merits and their invented principle of judicial supremacy simply became the rule.
So we should set ourselves the task and begin. There are, of course, lots of difficulties. Just try to explain the powers of the House of Lords, let alone how it should be constituted. Or seek to negotiate the issue of devolution. Let alone drafting the kind of bold declaration of rights and responsibilities favoured by Prime Minister Gordon Brown and opposition leader David Cameron in a way that complies with our responsibilities to the Council of Europe and meets with a reasonable degree of consensus from all classes and communities. If these tasks prove too much in the event, then we can always settle for the limited agreements envisaged by Brown in his concordats.
The value is the process. We may be British citizens for immigration and nationality purposes, but we very much remain subjects of the Crown – implying a degree of surely unacceptable passivity.
The very debate will make us think about how we want democracy actually to work in a country with an increasingly multicultural population, a dynamic economy and a diminished, but still tangible, global reach. Bring it on.