Is it Time for the UK to have a Written Constitution?

“A constitution is not the act of government, but of a people constituting a government, and a government without a constitution is a power without right… A constitution is a thing antecedent to a government: and a government is only the creature of a constitution.”    Thomas Paine 1792

“If a constitution means a written document, then obviously Great Britain has no constitution. In countries where a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such rules. The phrase British constitution is used to describe those rules.” – Sir Ivor Jennings author of The Law and the Constitution.

The UK’s constitution is unique in that it’s not codified like most constitutions in the world. It’s the product of many centuries of continuous and, mostly, gradual, peaceful evolution. It has an unbroken history of constitutional development starting in 1066. It’s based on conventions, not law. This unique constitution relies on politicians doing the right thing as not doing so would be disastrous. The politicians are still expected to operate in the interest of the public.

Another unique element of the UK constitution is the role of the crown. Before the 18th century, a King or Queen could choose a Prime Minister of his/her choice. Now, politicians are still deemed to act in the name of the crown, but they answer to parliament. Decisions like going to war, appointing, and dismissing Prime Ministers are subject to parliamentary approval. The crown does not have real power anymore even though the government is called Her Majesty’s Government. The real power is in parliament. The crown has ceremonial or discretionary powers.

As submitted by Lord Sumption, so much in British Constitutional law, “the label on the bottle has little to do with the contents.”

Prime Minister Boris Johnson

The outgoing Prime Minister, Boris Johnson is deemed to be unconventional given his idiosyncratic approach to politics. Commentators say he’s the politician who defies political gravity. They expected him to spend at least 10 years in power and transform the conservative party forever. He was London Mayor for 10 years, delivered Brexit and went on to be Prime Minister. He wanted to be world president from a young age. Since the UK does not do presidents, he had to settle for Prime Minister.

He had political capital that his predecessors could only dream of. Unfortunately, it could not stop politicians from his own party from getting rid of him. His fellow parliamentarians recited trust issues, integrity, and a general problem with adhering to rules. As such, they wanted him gone less than 3 years after becoming Prime Minister. It seems harsh considering what he achieved for the party. He would not go without a fight though. He told them that he had a colossal mandate from 14 million people who put him in power, not them. It took an unprecedented strategy in which 58 ministers resigned from his government in 2 days for him to finally resign.

Some constitutionalists were shocked by how the whole process of getting rid of Boris Johnson materialised. They felt he should have gone way earlier when his colleagues in parliament told him it was time go. By resisting and refusing to resign, they felt Boris was effectively pushing the unwritten constitution to breaking point. This constitution which relies on politicians doing the right thing, encountered Boris who felt the people, not parliament could only get rid of him. Constitutionalists could not believe that a Prime Minister was refusing to resign even though there was evidence suggesting sufficient grounds for resignation.

Margaret Thatcher won 3 general elections and spent 13 years in power, but her own party got rid of her without elections. Tony Blair was Prime Minister for 10 years and his party got rid of him without elections. In these instances, parliament was discharging its duty on behalf of voters when it felt leaders had acted below the expected standard or lost confidence in them. It seems brutal but that’s the system where parliament is the only instrument by which government can be held to account. This is different to a presidential kind of system where there are checks and balances to ensure the president does not operate beyond his powers or take the country in the wrong direction.

The manner in which Boris resigned resulted in people talking about the need to have a UK written constitution. They are of the view that if a similar event were to arise in the future, the system might not survive the push back. A written constitution would address the problem swiftly without threatening the principles on which the country is built on. Lord Sumption suggested that an independent body with constitutional powers must be created so that it can step in should the Prime Minister “run amok.” He went further and said, if someone like Donald Trump was Prime Minister, he would have brought the whole system down given it’s built on conventions.

Conventions by their nature are fragile, they don’t have teeth. Relying on the honour of politicians to do the right thing is risky. The UK Parliament created a ministerial code which parliamentarians should abide by. It does not seem to have the deterrence factor as it’s not grounded in law.

There are some leaders who naturally don’t believe rules apply to them whether they are in a written constitution or not. If someone is determined to push the rules to breaking point, they are likely to fold as they often do in countries under dictatorship.

Conclusion

Although the UK constitution was tested recently, it also showed that it works because in the end, Boris Johnson had no choice but to resign. The unwritten UK constitution was able to get rid of Boris Johnson while the strong and powerful US constitution could not get rid of Donald Trump. The rules don’t work by themselves, they need moral and ethical people who believe in them.

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