Written Constitution for Britain

Summary: Should Britain have a written constitution?

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Introduction
Author:Debbie Newman ( United Kingdom ) Created: Thursday, November 02, 2000 Last Modified: Saturday, July 18, 2009

Context
At present in Britain we have no written constitution, but instead a collection of laws and customs which govern our political system. Along with Israel, we are one of only two democracies in the world not to have a written constitution.

Arguments Pros
Clarity. Enshrining our constitutional laws and customs in one document would provide clarity for those working within the system and for those who wished to scrutinise it. Checks and balances. At the moment our judiciary is relatively weak in its ability to act as a check against parliament. A written constitution would increase its power.

Cons

Britain has survived very well until now with an unwritten constitution. The public is not clamouring for a written constitution because it does understand the conventions which govern political procedure. Written constitutions are ruled upon by judges. In Britain our judges are unelected and it is therefore undemocratic to take power away from our elected representatives and give it to judges who tend to be quite reactionary. Safeguards. At present, if a party has a majority in the One of the benefits of the current system is its flexibility. House of Commons they can change our constitution. If they have a political mandate from the people, the An example of this is Blairs reform of the House of the government can reform the constitution, as with the Lords. He was able to completely change half of our example of the House of Lords. If you had to have a 2/3 legislature without a referendum or other means of majority in both houses, this measure would never have checking consensus. A written constitution would act as been passed; neither would devolution. In countries like a safeguard as it would make it difficult to change. For the USA, it is nearly impossible to change their example you would have to have a 2/3 majority in both constitution. How do we know that what is best for us houses or a it would have to be passed by referendum. now will still be best in 100 years time? Protection from extremists. A written constitution would Iran has a written constitution. If somebody wanted to offer protection if an extremist came to power and flaunt democratic procedures it would be as hard now as wanted to disregard democratic procedures. it would with a written constitution. Europe. In the context of further political integration in A written constitution would make us much less flexible the EU, it is important that we enshrine and clarify with Europe. Are we going to enshrine their powers in Britains political system. the constitution when there is still so much political debate surrounding it? Rule of Law. The British Parliament is subject to no Parliament is subject to a constitution, it is simple not authority beyond itself and this goes against the principle written down. The constitutional conventions that Britain of the rule of law which our democracy is based on. has are very strong and have served us well. There are also laws such as the 1911 Parliament Act. Rights. Without a written constitution, the UK has no Bill Rights are already protected in the UK. There is a strong of Rights to protect its citizens from an overpowerful culture of rights and liberties which stretches back to state. The existing Human Rights Act provides only 1214 with Magna Carta and the 1689 Bill of Rights, and weak protection, with judges only able to rule that new which is widely accepted by politicians of all parties, laws are "non-compliant" with the Act - the government lawyers and judges, the media and civil society as a can ignore such rulings if it wishes. The Human Rights whole. This consensus makes it impossible for a single Act can easily be (and has been) amended by a simple government to overturn rights - as government defeats majority in both Houses of Parliament. A written on the proposed detention of terrorist suspects constitution with a proper Bill of Rights would provide demonstrate. Since 1998 the Human Rights Act has much stronger protection for the rights of the citizen. enshrined the European Convention on Human Rights into UK law, and now provides a focus for this culture of rights. Rulings by judges that anti-terror laws are "noncompliant" with the Human Rights Act are very embarrassing for the government, and have effectively forced it to amend its laws.

Motions
This house calls for a written constitution

This house demands more clarity in the constitution That the United Kingdom should adopt a codified constitution This House would call a constitutional convention

Useful Sites
Unlock Democracy The Liberal Democrats The US Constitution Online BBC online on the UK Constitution Open Democracy The Centre for Republican Democracy Peter Oborne writes against a codified constitution in the Daily Mail Record of a House of Commons debate on adopting a codified constitution Hansard Society materials for students Guardian article 2009 Speech by Justice Minister Jack Straw

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Written Answers and Statements Bill Committees

Proposalsfor a WrittenConstitution
Houseof Commonsdebates,10 October2007,7:30 pm
Previous debate All Commons debates on 10 Oct 2007

Motion made, and Question proposed, That this House do now adjourn. [Siobhain McDonagh.]

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7:31 pm

Keith Vaz (Leicester East, Labour) I am most grateful to you, Mr. Deputy Speaker, for allowing me the opportunity to raise the Government's proposals on a written constitution in this Adjournment debate. This debate follows on from the debate on 22 May initiated by my hon. Friend Mr. Allen in the light of the then Chancellor of the Exchequer's commitment to introduce a constitutional reform Bill. I am delighted to see the Minister of State, Ministry of Justice, my hon. Friend Mr. Wills, on the Front Bench. His willingness to consult as widely as possible with the public and key groups on the issues of British identity and constitutional reform is well known, and I am pleased that he has been given responsibility for this very important matter. I hope that my hon. Friend will be able to provide the House with greater detail since the Prime Minister's statement on constitutional reform on 3 July. I know that the House is keen to know how we can progress towards a British Bill of Rights and Responsibilities and possibly a written constitution. Some consider matters of constitutional reform dry subjects for academic lawyers. I disagree. I believe that this is one of the most exciting areas of Government policy and I am sure that the Minister agrees. This issue is of course part of a historic process of constitutional reform that began on this island almost 800 years ago with the Greater Charter of Freedoms the Magna Cartacodifying the rights of the individual against the power of the

state. Even today, the Magna Carta informs current key political debates, and I am sure that the Minister has a copy of it with him for this debate. The Charter speaks to us through centuries of history. Its 29th clause states: "No Freeman shall be taken or imprisoned...or be outlawed, or exiled, or any other wise destroyed...We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land." I apologise for the lack of political correctness, but it is a direct quotation from the Magna Carta. That principle, which this country has defended against internal and external threats for centuries, is still a matter for profound political debate. Only yesterday, the Metropolitan Police Commissioner, Sir Ian Blair, appeared before the Home Affairs Committee, which I have the privilege of chairing, to make the case for powers to detain people before charge for more than 28 days. That is one of the many issues that, as I will outline, lead me to be a strong supporter of a single Bill of Rights and Responsibilities. How do we ensure that this issue is discussed not only by the elite, but by representatives of groups from all over the country? Constitutional reform has been one of the major achievements of the Government since 1997devolution to Scotland, Wales and Northern Ireland, a Mayor and Assembly for London, the process of removing hereditary peers from the House of Lords, the creation of a Ministry of Justice, the creation of a Supreme Court, the creation of a body to appoint judges independently, and the incorporation of the European convention on human rights via the Human Rights Act 1998. This has been the collective work of the Government. However, I should like to recognise in particular two Ministers who have been at the forefront of the processLord Irvine of Lairg and Lord Falcolner of Thoroton, who were both distinguished Lord Chancellors. All these reforms have been substantive changes to our unwritten and ancient constitutional tapestry, and have been remarkably successful. Even more remarkable is the lack of attention that these reforms attracted. That is, perhaps, a measure of their success. It is difficult to imagine rolling back devolution or re-installing the hereditary peers, although I understand that the Conservative party is committed to scrapping the Human Rights Act, despite presumably remaining part of the European convention on human rights.

The convention is one of the greatest accomplishments of the finest British legal minds. While some look back to regressing into a constitutional settlement that never was, the Government and the Prime Minister are right to look forward to continuing the path towards constitutional modernisation. In his first major statement to the House, the Prime Minister proposed a number of constitutional changes to improve our democracy and governance. These reforms include the removal of the royal prerogative in 12 areas, including the power to declare war, appoint judges and even choose bishops. Parliament should warmly welcome its empowerment on these and other key issues. However, my focus in this debate will be the suggestion by the Prime Minister that we move away from our largely unwritten constitution and towards a single document that codifies the rights and responsibilities of those living in Britain. With reference to other countries with unwritten constitutions, I understand that only New Zealand, Canada and Israel share the United Kingdom's status. I am a strong supporter of such a document. Britain's last Bill of Rights was forged in 1689. For the 17th century, it was a remarkable text limiting the powers of the monarch and setting out the great freedoms that we as citizens still enjoy today, such as the freedom from cruel and unusual punishments, the freedom of speech in Parliament, the freedom from taxation by royal prerogative, and the freedom to elect Members of Parliament without interference from the sovereign. These were great and fundamental freedoms, of special importance to the development of the House, but more than 300 years have passed and it is time for a new Bill of Rights, such as a Bill of Rights and Responsibilities, and for us to take the steps towards a full written constitution. The people of Britain hold a great sense of civic purpose, but it is not clear enough to the individual where his or her rights and duties lie, and where the Government's begin. In an age of concern about antisocial behaviour and crime, we need a document embodying the guiding values that we share as a nation. Above all, a constitution would clarify not only the collective power of the Government, but the powers of a neighbourhood, community group or family to correct antisocial behaviour. We are all stakeholders in civic society on a national, regional, local and street level. A fear is expressed in the tabloid media that the European convention on human rights is an alien document and a danger to our country. It is time to incorporate the European convention on human rights into a British written constitution, in effect bringing the convention back home.

A constitution would allow British citizens to point to a single document containing the values, principles, rights and responsibilities that all in Britain must follow. It could be used to provide new British citizens from other countries with a sense of British identity and an understanding of British values, which is close to the heart of the Minister who has campaigned on the issues of identity and Britishness for many years. A constitution would state the responsibilities that go alongside those rights. To take the classic example, it would make it clear that the right to free speech goes alongside the responsibility not to incite racial hatred between groups. Beyond that, a single document could encompass the reforms, which have occurred and which will continue to occur, to our constitution. We have been fortunate that in recent memory our parliamentary process has not had to face strains and extremism that other countries have experienced to their detriment. My right hon. Friend Mr. Straw, who is the Lord Chancellor and Secretary of State for Justice, has announced the consultation with the British public, and he has said it will begin in the autumn as requested by the Prime Minister. I am sure that his consideration of the great range of opinion will be examined carefully and thoroughly. In a recent New Statesman interview, however, he ruled out an actual written constitution in the short term: "I'm not against a written constitution, but I think you've got to get the building blocks in place before you get there." The Minister has been entrustedin my view rightlywith the onerous responsibility of putting those important building blocks in place. Although I am keen to ensure that there is no unnecessary foot-dragging in planning the way forward on such a radical innovation for the United Kingdom, I agree with the principle that the process should not be rushed before the public, the political establishment and, above all, the machinery of government are ready for such a change. It is vital that we take the British people with us. The consultation process is not the most important issue. I have just spoken to my hon. Friend the Member for Nottingham, North, who told me that people should e-mail the Minister. Millions of people could e-mail the Minister about what the new constitution should look like, but at the end of the day somebody must edit those suggestions. I hope that the Minister will clarify the key question of who will sit down and edit this great constitutional project. I believe that history proves that a national constitution works most effectively when the

ultimate draftersthe wise men and womenhold legitimacy in the eyes of the country. The American constitution, for example, which was forged by the energies of the war of independence, was drafted by high-profile figures of many different political orientations and ambitions, and none, who moved towards a consensus. Even that great constitution was not perfect for a number of reasonsslavery remainedbut it endowed legitimacy on a nation that developed a great civil society. That legitimacy is needed today and for future generations. I would be grateful if the Minister were to state who will be involved in the early stages, who will be involved in the later stages and what Parliament's role will be. In 100 years' time, when many of today's policy debates and manifesto commitmentseven talk of a general election on 1 Novemberare long forgotten, I know that this Government's constitutional reform programme will be long remembered. I believe that that will be the key thing that people remember about these years. Is the Minister ready to be remembered as the Benjamin Franklin of a future British constitution? The Government have achieved muchwith not enough recognitionin bringing Britain's constitution into the 21st century, so I look forward to hearing from the
Minister

how the Government plan to secure the historic achievement of a written

constitution. "We, the people of the United Kingdom, in order to form a more perfect union, establish justice and human rights, ensure domestic tranquillity, provide for the common defence, and promote the general welfare of the British people": those few words are my version of how we should start the constitution. I look forward to hearing what the Minister's version will be.

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7:45 pm

Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) I congratulate my right hon. Friend Keith Vaz on securing this debate on a very important subject for this House and for the people of this country. He will not be surprised to hear that I share his view on the importance of these issues. He has brought to the debate a wealth of experience and distinguished service to

this House and to this Government. I am grateful for the way in which he set out the arguments, because he covered most of the issues that we will have to confront and deal with as we embark on the programme that the Prime Minister set out to the House on 3 June this year. This is part of a process. Since 1997, the Government have been embarked on a radical programme of constitutional renewal. The next stage, which is set out in the Green Paper, "The Governance of Britain", seeks to forge a new relationship between Government and the citizen and to continue the journey towards a new constitutional settlement that entrusts Parliament and the people with more power. It is important to note that the Green Paper is not a blueprint but a route map that we will navigate in conversation with the British people. We are planning a far-ranging programme of consultation involving a whole range of mechanisms that we hope will produce a settlement which, as my right hon. Friend suggested, will be owned by the British people themselves; it will not be sustainable unless we do so. My right hon. Friend spent a large part of his speech talking about a Bill of Rights and Responsibilities. The Government remain fully committed to the universal declaration of human rights made by the United Nations on behalf of the free world at the conclusion of the second world war. Those rights are also reflected in the European convention on human rights and in the Human Rights Act 1998, which brought them back to this country and made them justiciable here. However, times change, and legal norms must be continuously reassessed against changing circumstances. The Government have always said that the 1998 Act was a first step on the journey towards a full articulation of fundamental rights and responsibilities for people in the United Kingdom. We are now about to launch a debate about how to go forward, focusing on the way in which our commitment to these fundamental rights and responsibilities can help to bind us together and how we can make their application more transparent and accessible to the public. In particular, we wish to explore how we can make more explicit the way in which these rights are mirrored by the duties that citizens owe to the state and to society and the underpinning concepts of proportionality, legitimacy and necessity in the way the Act is implemented. In considering how that might be done, we believe that one possibility would be the passing of a new Bill of Rights and Responsibilities. We will listen very carefully to what people say to us as we embark on the consultation process throughout the country, and we will use the information

that we derive from that process to work out an appropriate way of achieving those goals. Of course, some, like my right hon. Friend, want to go further than that and to ensure that our constitution is fully codified. The campaign for such a written constitution has a long and distinguished history in this country, with many supporters on both sides of the House. Most countries have codified written and embedded constitutions; the United Kingdom does not, for all sorts of historical reasons. Instead, our constitution has four principal sources: statute law, common law, conventions and works of authority. Unlike other countries, since the end of the 17th century there has been no key event, war or revolution that has led to the need for one document setting out the rules that govern the political system and the rights of citizens and Government.

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Keith Vaz (Leicester East, Labour) I am sorry to raise the point during this part of the Minister's speech, but I was interested in his decision to go around the country and meet groups. Does he have any format in mind for those meetings, and will the cities and towns he chooses have a particular profile? It is important that wherever he chooses to go is truly representative of the United Kingdom. Of course, we would love to see him in Leicester.

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) My right hon. Friend is right to suggest that we should employ a variety of mechanisms; that is what we intend to do. I shall talk a little more in a moment about the British statement of values and how we intend to realise that.

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Alan Haselhurst (Deputy Speaker) Order. May I just say to the Minister that it is helpful if he speaks towards the microphone? Otherwise, those reporting our affairs have some difficulty.

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) Of course, Mr. Deputy Speaker, and I will address my remarks to you as well my apologies. We shall use a wide variety of mechanisms, such as citizens juries, in which representative bodies of citizens come together to deliberate on particular issues. We intend to use online consultation widely so that people who cannot be part of the physical consultation process for whatever reason will be able to engage fully in debating these important issues. That will apply across the piece. We are consulting widely on the Constitutional Reform Bill, which concerns the surrendering and limiting of the Executive's powers. We will consult on the possibility of a new Bill of Rights and Duties, and consult widely on the British statement of values, to which I shall come in a moment. I would like to comment again on a point to which my right hon. Friend referred in his remarks. If we are to consider going down the route of a fully codified constitutionsomething that would be a radical departure from constitutional practice in this countryit is important that we do so on the basis of a settled consensus. That can be achieved only through extensive and wide consultation. If we do not do it on that basis, I fear that it would not be sustainable. It is important that when we embark upon constitutional change, particularly potentially radical change, we should approach it not as an engineer approaches a blueprint, but as a physician, healing what needs to be healed, but not going beyond that. We need to approach the matter with care and caution, but we

must recognise that the issue is a live one, and one with which we must engage. Underpinning everything that we have talked about is our desire to find the things that bind us together as a nation. We have proposed, therefore, the development of a British statement of values. When I say we, I refer to the British people as a whole, not to this Government. The process that we are proposing, as the Prime Minister has made very clear, will not involve the Government

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Eleanor Laing (Shadow Minister, Justice; Epping Forest, Conservative) indicated assent.

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) Does the hon. Lady wish to make an intervention?

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Eleanor Laing (Shadow Minister, Justice; Epping Forest, Conservative) rose

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Alan Haselhurst (Deputy Speaker) Order. I am afraid that interventions from the Opposition Front Bench are not permitted in these Adjournment debates. I am sure that the hon. Lady was not seeking to break the convention.

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) Thank you Mr. Deputy Speaker. I would be happy to carry on the conversation with the hon. Lady after the debate. We have made it clear that decisions on whether there should be such a British statement of values, on the form it should take and on the uses to which it should be put, will be taken by a citizens summit. It will be a representative body of British people, probably selected randomly, but demographically representative of the country as a whole. They will deliberate on these questions and come to a decision, which will then be put to Parliament for the final say. That brings me to a very important point. In all the proposals that we have introduced that are embodied in the Green Paper, "The Governance of Britain", our system of parliamentary, representative democracy will remain at the heart. My right hon. Friend asked what position Parliament would have in the process, and I can tell him that it will remain absolutely at the heart of it. For all the measures that are being consulted on, and all the measures of direct democracy, we are not proposing to replace our system of representative democracy or go towards in any way a plebiscitary democracy. We believe that our system of representative democracy is fair and effective and it will remain central to the process. We must recognise that the system of representative democracy, which has served the country well, may need to change for changed circumstances. The British people, their aspirations and political behaviour have changed and it is

right and proper that our constitution should adapt to reflect that. It always has doneone of the great virtues of the British constitution has been its flexibility. In the 19th century, it went through enormous upheaval, with three great reforms of the suffrage, which were as radical as our current proposals. Whatever we do, we shall do it with great care to ensure that our system of parliamentary democracy remains central. We will use almost every method that we can to engage the British people.

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Keith Vaz (Leicester East, Labour) It is fascinating to hear my hon. Friend's comments. Obviously, he must consult the British people first, but is there any particular country, which he has studied or from which he has received evidence or reports of its written constitution, to which he is attracted?

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) Clearly, we are studying what has happened in other countries. However, we would not try to replicate other constitutional arrangements in this country because constitutions arise from the specific circumstances of each country. They are products of specific histories and societies. We believe that what we have in this country is specific and unique and we want to formulate our own proposaland we want the British people to be central in that processrather than importing practice. However, we have examined ways in which other countries try to engage their populations in constitutional change. For example, we have considered Australia and British Columbia, which conducted an interesting experiment with a citizens summit. In formulating the debate, we will learn from the custom and practice that other countries have adopted, but

we need to work out ways in which to adapt specific constitutional mechanisms for ourselves as a people. My right hon. Friend asked where we would go in the country. I can safely say that we will look everywhere and that we are especially conscious of the importance of Leicester as a representative town. We shall seriously consider conducting at least one event nearby, if not in Leicester. I hope that that satisfies my right hon. Friend for the time being. We will be able to reveal much more detail in the coming months and I hope that there will be plenty of opportunity to debate those matters in the House. The process will not be short and many of our discussions will take place over not only months but years. We are starting that process and we want to engage parliamentarians in it. Today's debate is rather sparsely attendedI hope that we can get more of our colleagues to participate in future. The debates are important and will inevitably have an impact on the way in which Parliament works.

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Keith Vaz (Leicester East, Labour) My hon. Friend has been generous in giving way. I note from the newspapers that he has decided to give up his ministerial car. I hope that his transport arrangements will enable him to travel around the country.

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour) I am grateful for the care with which my right hon. Friend follows press coverage of my movements. However, there will be no hindrance to getting around the country. The Lord Chancellor and I will travel around the country, probably by public transport more often than not.

We will try our best to ensure that we reach everybody in this country who wants to participate in the debate. It is not always easy. We want to go beyond the usual voices that contribute to such discussions. We are trying to construct mechanisms to do that and I hope that my colleagues in the House today will participate in the process. We will invite all parliamentarians to join us in the debate. It is not the prerogative of one party, but something that should belong to every Member of the House and every citizen of the country. It is an important process and, if we can do it together on a non-partisan basis, we have a good chance of achieving a radical constitutional settlement, which will serve the country well for many years.

Modernising the Magna Carta

13 February 2008 George Washington University, Washington, DC

Jack Straw has given a speech at the George Washington University about the UK's and USA's constitutional heritage and what a British Bill of Rights and Responsibilities might look like. [Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.] The Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice:
Introduction

Good morning, I am honoured to be here at the magnificent George Washington University. This morning I want to set out some observations about the enduring and unique relationship between our two countries, and in particular to look at how our very conceptions of government and the constitution, whilst on the face of it very different, are borne out of the same root, and have to face up to the same challenge of remaining relevant in a twenty-first century democracy.

This challenge of remaining relevant has beset every government of every age. It calls to mind the old adage of the man who walked into a bookshop in the French Third Republic asking for a copy of the Constitution. 'We don't deal in periodical literature', the bookseller replied. So, in this speech, I discuss three things:

First, our common constitutional heritage - how the US and the UK both have modernised the Magna Carta, and constantly adapted our constitutional arrangements to meet changing circumstances. Second, to look at some of the steps we have taken in the United Kingdom to bring our constitution into line with modern expectations: the 'quiet revolution' over the last decade of the Labour administrations of Tony Blair and Gordon Brown. And third, the lessons we can learn from the United States as to how we in the UK can shape the next chapter in the story of British liberty: towards a British Bill of Rights and Responsibilities.

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Part 1: Magna Carta I would like to begin, where so much of our legal, governmental and social systems begins - with the Magna Carta. In December of last year Sotheby's in New York sold a 1297 copy of the Magna Carta for more than $21 million - the world's first $20 million bill. It is both symbolic and fitting that it has been placed on display beside the Declaration of Independence just down the road at Washington's National Archives. These two represent perhaps the most defining constitutional documents in the Western world. Their influence on the development of democracy in the United Kingdom, the United States as around the world cannot be overstated. Along with the Bill of Rights and the Constitution they are what James Madison called the 'political scriptures'. In the late eighteenth century, the Founding Fathers searched for an historical precedent for asserting their rightful liberties from King George III and the English Parliament. They found it in a parley which took place more than 500 years before that, between a collection of barons, and the then impoverished and despotic King John, at Runneymede in 1215. On that unremarkable field they did a remarkable thing. They demanded of the king that their traditional rights be recognised, written down, confirmed with the royal seal and sent to every county to be read aloud to all freemen. Let us, however, prick the illusion, that the Magna Carta was precipitated by the equivalent of thirteenth century civil rights campaigners. The Magna Carta was a feudal document - designed to protect the interests, rights and properties of powerful landowners with the temerity to stand up to the monarch. Given its

provenance, it is a paradox that a document which was founded on the basis of class and self interest has over centuries become one of the basic documents for our two constitutions, and one of the icons of the universal protection of liberty. This is a measure of how constitutions evolve, grow, develop with changing circumstances; in this sense they can be very much like scripture. This is the process by which a document just shy of its eight-hundredth birthday still has a resonance and a relevance today. In more than 100 decisions, the United States Supreme Court has traced dependence on the Magna Carta for understanding of due process of law, trial by one's peers, the importance of a fair trial, and protection against excessive fines and cruel and unusual punishment. These are principles which similarly have long formed the bedrock of our system of common law in the United Kingdom - as admired as it is emulated in democracies around the world. I dwell on this historical point to demonstrate that in spite of the very different systems of governance in the UK and the US, there is an enduring bond between our two democracies, a shared legal culture, a common thread which can be followed back to the Magna Carta. At the heart of each, of both, is a powerful and everlasting idea of liberty and of rights. I often think that the commonality between us and our ideas is best reflected in the person of one man, that great Anglo-American, Thomas Paine. Paine was born and raised in a small town in the east of England called Thetford in Norfolk, but was to go on profoundly to influence the revolutions in America and France. Indeed, the name 'the United States of America' itself is attributed to his creation. That Paine is commonly considered among the Founding Fathers, and later was elected to the French National Convention are measures of his remarkable contribution to the dialectics of liberty.

But though Thomas Paine's seeds were the same wherever he sowed them, they grew. And their progeny then evolved in ground that was different, differences today reflected in very different systems of governance. From independence, the United States self-consciously chose to develop a system of constitutional sovereignty, to prevent the new-born nation from ever being subject to the yoke of a despotic ruler. As Washington himself implored:
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'that it is provided with more checks and barriers against the introduction of tyranny, and those of a nature less liable to be surmounted, than any government hitherto instituted among mortals hath possessed'. As with many nations which later have had to define themselves as a product of great social

trauma - civil war, revolution, independence, or more recently breaking free of the shackles of apartheid - you put your belief in and structured your system of government around a set of overarching principles around which their nation could unite - a constitutional form of government. In the United Kingdom we have remained faithful to principle of Parliamentary sovereignty whereby no power is preeminent to Parliament, where any law can be made and unmade. The Swiss constitutionalist, and contemporary of Tom Paine, Jean-Louis de Lolme described this in practice: 'Parliament can do anything but change men into women and women into men' he quipped. In an aphorism I remember from when I was studying for the equivalent of my high school exams, Ivor Jennings, a later British constitutional historian, went on to correct him: 'like many of the remarks de Lolme made, it is wrong. For if Parliament enacted that all men should be women then they would be women so far as the law was concerned'. Such are the vagaries of the English constitution! Of course we have significant constitutional documents, of which the Magna Carta is only one. These include the 1689 Bill of Rights, the great Reform Acts of the 19th Century, the Parliament Acts, the Human Rights Act 1998. But in no one document can be found what is called the 'British Constitution'. The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law. This divergence between the American notion of constitutional supremacy and the British doctrine of parliamentary sovereignty, has, according to a predecessor of mine as Lord Chancellor, Lord Irvine of Lairg: 'long been viewed as symbolising a fundamental difference of outlook between the United States and Britain on constitutional matters generally, and more specifically on the status of civil rights in our respective legal systems'. The lesson of history is that declarations of rights - what Madison described as 'paper barriers' - are not in themselves enough. Look at Weimar Germany or Soviet Russia. For rights to be afforded their true significance they need to have legal expression and enforcement as well as symbolic value. Judges, lawyers, politicians and philosophers from both sides of the Atlantic have been grappling with how best to provide a practical legal mechanism to access rights and an ethical framework for decision-making. The American constitutional system puts the individual rights of man very obviously and

explicitly at its heart. The continuing challenge is therefore how to interpret the aspirational features of your constitution in such a way as to continue to provide legal protections to its citizens while remaining true to the historic purpose of its framers. The jurisprudence of the United States Supreme Court (primarily) helps to constantly refresh and renew the interpretation of the Constitution. Through constant consideration and iteration, the Supreme Court has had the effect of continually breathing life into the constitution. It is not neglected but actively considered and - where necessary - renewed.
Part 2: The 'quiet revolution' The same cannot be said in the UK. The nature of our system of governance in Britain is such that constitutional amendment requires an Act of Parliament (but by no special procedure or majority). Our courts cannot change our constitution. The 1998 Human Rights Act was very careful on that point. So while the mechanism is different to the US, it remains underpinned by the same principle: constitutions must modernise to reflect the world in which they are operating. The gradual development of our constitution was described by the Victorian lecturer AV Dicey as 'historic'. Bagehot, another of the British greats, described it as 'organic', and the 'product of evolution rather than design'. But that does not mean it is always easily understood, nor that it is always capable of changing appropriately to meet the needs of society To put the constitution on a modern footing and to ensure that it is in a position to cope with the pressures facing it today necessitates regular and active constitutional maintenance. Without it, a logjam of constitutional adjustment builds up. Since 1997, when Tony Blair became Prime Minister, we have been clearing away the logjam which had accumulated. Aside, perhaps, from the years immediately prior to the First World War which saw the Parliament Act of 1911, historians have already suggested that the period since 1997 in which Labour came to power is unparalleled in the past one hundred years of our constitutional arrangements. We have staged, in the words of constitutional expert Vernon Bogdanor, a 'quiet revolution'.
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Change in role of Lord Chancellor The great Victorian Prime Minister Gladstone suggested 'that the British constitution presumes more boldly than any other the good faith of those who work it'. But good faith, for so long the 'British way', is no basis on which to construct a modern constitution. Changes had to be made if we were to have a system of governance in which the British public could have confidence. The 'good faith' described by Gladstone is the absence in our constitutional arrangements of a (formal) doctrine of separation of powers, one of the key areas identified by Paine and others as being a vital bulwark against tyranny. Ironically, nowhere was this constitutional anomaly more clearly seen than in the role of the office I now hold, Lord Chancellor. The Lord Chancellor traditionally sat as part of the legislative, of the executive, and of the judiciary. He was

Speaker of the House of Lords, a senior member of the Cabinet, and could, and did, sit as an appeal judge: a holy trinity of roles which contained a constitutional anachronism which had persisted for centuries, and which could not continue in any form of modern democracy. Montesquieu argued that 'there is no liberty if the judiciary power be not separated from the legislative and the executive'. Quite what he made of the role of the Lord Chancellor, history does not record. But from my own perspective as the first commoner - that is an elected Member of Parliament - since Sir Christopher Hatton in the reign of Elizabeth I to be appointed Lord Chancellor I would like to add this. The separation of powers should not mean that the each 'limb' of state becomes dislocated. But as we move as a democracy to a model in which we enjoy a clearer separation of powers it is important that where there are connections these areas must be transparent. First sentencing. It is an important principle that in any fair and just society, where the rule of law is predominant, that an impartial and independent judiciary is allowed to go about its business without impediment. Judges must be given the room to make their individual decisions based on the individual merits of the cases before them - without political interference. And this interference can also take the passive form in which sentencers and politicians each try to secondguess the other. To avoid this, I believe that we need to look very closely at a system such as, with different features, successfully operates in several states here, of a sentencing commission. Officials from my department have visited Minnesota and I myself look forward to heading to Virginia tomorrow to see how their commission works. In the UK we are looking very closely at whether a longer term mechanism better to control the supply of and demand for prison places is needed. In particular, we are looking from your experience at a model in which Parliament sets the overall framework for sentences, leaving judges free to concentrate on their individual decisions, within a clear set of parameters, and with capacity of the prison system taken into account in setting the framework, but not so that it interferes, in individual cases, with the sentence handed down. The second specific area I would like to touch upon is the importance of maintaining accountability to Parliament via the Lord Chancellor. In a modern liberal democracy the judiciary are expected to act as a check and balance against the power of the legislature or the executive. But so too in a liberal democracy is that judiciary expected to be accountable to the public in ways which do not impinge on the fundamental principle of their independence. Accordingly such accountability is not expected to be direct - we have no interest in pursuing a route which would lead to the election of our judges - nor in a way which challenges their independence, but via the person of the Lord Chancellor, to Parliament. The reforms enacted through the Constitutional Reform Act 2005 combine the

best of the historical role of the Lord Chancellor, a strong figure within the executive who can defend the rule of law and the independence of the judges, with changes to our constitution which reflect modern conceptions of democracy: a final court of appeal - a Supreme Court -visible to the public as a court, and not as a committee of the upper house of our legislature; a judiciary with its head the Lord Chief Justice - appointed from within the ranks of the professional judiciary and not a politician; a transparent, non-political means of appointing judges; and a Speaker in the legislature chosen by the legislative body and not by the head of the executive.

These reforms have provided the active maintenance that had been so needed if our constitution was to move with the times. The relationship they establish between the judges and the Lord Chancellor reflects our age. Judges should not be led by a politician. They need their own voice, and independent leadership. And it is clear that as part of this, judicial appointments must be made, and be seen to be made transparently, impartially and solely on the principle of merit.
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The Supreme Court Those familiar with our legal system will know that currently the final court of appeal for the UK court system is a committee of the upper legislative house, the House of Lords - the 'Law Lords'. To be appointed a member of that court is to be appointed a member of the legislature. In an age where accessibility is paramount, the court is virtually invisible, save that it can hand its judgement down before the television cameras of the Chamber of the Lords. It works. Noone challenges its integrity or expertise. Yet it's an odd set-up - in principle as odd as having your Supreme Court sit in the Chamber of your Senate. The Law Lords have no separate identity apart from the House of Lords. Whilst the public are entitled to attend the hearings, they are very difficult to find, and there is little thought given to the public's attendance. The highest court in the land for far too long has been beyond the reach or understanding of a great number of the British public. As Bagehot argued as long ago as 1867 that a supreme court 'ought not to be hidden beneath the robes of a legislative assembly'. As befits the constitutional trend towards the greater separation of powers, a United Kingdom Supreme Court has taken over a century before finally becoming a reality. There is much that we admire about the US Supreme Court and that we hope to see replicated in our own. It is a highly visible symbol of judicial authority and it is accessible to the public, appealing to the public, and important to the public. When you visit the US Supreme Court you are struck, not only by the quality of its proceedings and the authority it clearly has in the eyes of the American people, but by the huge interest in it and its deliberations from the public: lines of people outside waiting to get in to hear its deliberations, the body of the court filled to the brim with members of the public, as well as lawyers, who had managed to get in.

The place where the court sits is important - a symbolic institution which is not visible or accessible would be pointless. Our new Supreme Court will stand proudly in one corner of Parliament Square, surrounded by, and in sight of, the other distinctive pillars of our constitution - the Houses of Parliament opposite, the Treasury on one side, and Westminster Abbey, where every King and Queen of England has been crowned since 1066, on the other side. It is a setting that is befitting a court of such significance and importance. I believe that the UK Supreme Court, at the apex of our justice system will establish itself as a court of similar world renown to that here in Washington. But there will remain differences in how the how the two courts will operate. Our constitutional arrangements will remain distinct. I make no comment here about your system, but the strength of our legal system in the UK, in part, depends on our judges being beyond politics. In seeking new constitutional arrangements we do not ignore our heritage. We have I think been able to find a solution by which the judiciary can play a visible and effective role in holding the executive to account - but to do so in a way which does not embroil them in partisan politics nor undermine the sovereignty of Parliament.
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Part 3: British Bill of Rights It is a few years ago now, but I remember being struck in 2002 by the results in the US of a Public Agenda national opinion poll, in which 67% interviewed said that it is was 'absolutely essential' for ordinary Americans to have a detailed knowledge of their constitutional rights and freedoms. And 90% of respondents agreed that since the 9/11 attacks 'it is more important than ever to know what our constitution stands for'. The report concluded that whilst the actual text of the constitution might be very imperfectly captured in people's heads, 'its principles and values are alive and well in their hearts'. I would be fascinated to see what the equivalent scores would be back in Britain. I would suggest that there is a wide understanding that English constitutional documents such as the Magna Carta are profoundly important to the way we have developed as a society. And I have said before that I think that the British people have developed an innate understanding of rights which has come from a centuries-old tradition - it is in our cultural DNA. But I think that most people might struggle to put their finger on what those rights are or in which texts they are located. . The next stage in the United Kingdom's constitutional development is to look at whether we need better to articulate those rights which are scattered across a whole host of different places, and indeed the responsibilities that go with being British.

We can learn a great deal from the United States example, and particularly with regard to the enviable notion of civic duty that seems to flow so strongly through American veins. It is

made much easier to fulfil your civic duty when you have a clear sense of to what you belong, and what it is expected from you. In the United Kingdom many duties and responsibilities already exist in statute, common practice or are woven into our social and moral fabric. But elevating them to a new status in a constitutional document would reflect their importance in the healthy functioning of our democracy. But why now? It is not because we are a society in turmoil but because we are a society in flux. We live in a modern, individualistic, consumerist age, in which old social classes have eroded. Much of this is welcome. But the consumer society has shifted attitudes in ways that also present us with some challenges. As the political scientist Meg Russell has said: 'It is difficult to find anything more antithetical to the culture of politics than the contemporary culture of consumerism. While politics is about balancing diverse needs to benefit the public interest, consumerism is about meeting the immediate desires of the individual. While politics requires us to compromise and collaborate as citizens, consumerism emphasises unrestrained individual freedom of choice.'
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In the civic sphere, it has arguably given rise to the commoditisation of rights, which have become perceived as yet more goods to be 'claimed'. This is demonstrated in how some people seek to exercise their rights in a selfish way without regard to others - which injures the philosophical basis of inalienable, fundamental human rights. Alongside that, some people resent the rights that are afforded to fellow humankind - we see this is in the media uproar around human rights being a 'terrorist's charter' or there for the benefit of unpopular minorities alone. In this individualistic age, we would do well to remind ourselves of first principles: that rights come with duties. This is hardly a new concept. Thomas Paine declared that: 'A Declaration of Rights is, by reciprocity, a Declaration of Duties also. Whatever is my right as a man, is also the right of another, and it becomes my duty to guarantee as well as to possess.' I fully understand that there is not, and cannot be an exact symmetry between rights and responsibilities. In a democracy, rights tend to be 'vertical' - guaranteed to the individual by the state to constrain the otherwise overweening power of the state. Responsibilities, on the other hand, are more 'horizontal' - they are the duties we owe to each other, to our 'neighbour' in the New Testament sense. But they have a degree of verticality about them too, because we owe duties to the community as a whole.

In seeking to bringing greater clarity and status to the relationship between the citizen, the state and the community, we in the UK have to be constantly mindful of the scope and extent of their justiciability. I entirely agree with the words of former Lord Chief Justice Lord Bingham (now the Senior Law Lord) when he said that the importance of predicatability in law must preclude 'excessive innovation and adventurism by the judges'. That was echoed by Justice Heydon of the High Court of Australia who suggested that judicial activism, taken to extremes, could spell the death of the rule of law. If, for instance, economic and social rights were part of our new Bill, but did not become further justiciable, this would not in any way make the exercise worthless. This city is a living testament to the power of symbols. As the jurist Philip Alston described, Bills of Rights are 'a combination of law, symbolism and aspiration'. What he makes clear is that the formulation of such a Bill is not a simple binary choice between a fully justiciable text on the one hand, or a purely symbolic text on the other. There is a continuum. And it is entirely consistent that some broad declarative principles can be underpinned by statute. Where we end up on this continuum needs to be the subject of the widest debate. A Bill of Rights and Responsibilities could give people a clearer idea of what we can expect from the state and from each other, and provide an ethical framework for giving practical effect to our common values.
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Conclusion
In an enabling state, in a democratic society, it is far more than the law which binds us together. But the law has a powerful role to play. In Britain, we are alone with Israel and New Zealand, among all of the developed countries in the world, in not having a codified constitution - by this I mean a single overarching source of law. And much of what we regard as our unwritten constitution is contained in ordinary laws which can be changed by ordinary legislative process and in conventions (Gladstone's 'good-faith'). The introduction of the Human Rights Act was a landmark in the development of rights in the UK, setting the liberties we enjoy on a constitutional footing. But the question which we are now putting to the British people is - whether this goes far this enough? The 'quiet revolution' has brought about greater clarity in our constitutional arrangements, but we need now to think very carefully about whether a British Bill of Rights and Responsibilities should be a step towards a fully written constitution, which would bring us in line with most progressive democracies around the world. But that is a debate for another time. In Britain, we have not had to struggle for self-determination or nationhood; nor for three and half centuries have we been torn apart by social strife. We do not wear our freedom on our

sleeves in the same way as here in the United States, or Canada, or South Africa. But, do we in Britain value these rights less as a result? I don't think so. I think an innate understanding of rights is a part of our national psyche, it is the amniotic fluid in which we have grown, so too is an inchoate appreciation, at least, of the obligations we have to each other. But we could make them better understood. If a Bill of Rights and Responsibilities which clarifies this relationship is to be more than a legal document and become a 'mechanism for unifying the population', it is vital that it is owned by the British people and not just the lawyers. For it to have real traction with the British people they must have an emotional stake in, and connection with it. We have to make a reality of constitutional expert Professor Francesca Klug's assertion that the true meaning of human rights is about providing 'a framework of ethical values driven not just by the ideals of liberty, autonomy and justice, but also by normative values like dignity, equality and community'. There is a careful balance to maintain; between preserving the UK's constitutional heritage on the one hand, and running the risk of our public institutions becoming antiquated on the other. And in this there is much we can learn from you. That here in the United States a single framework of government can and has endured the changes necessary in taking the United States from an isolationist, agrarian nation of 3.5 million people in 1789 to an industrialised, international hyper-power with a population nearly 70 times larger today testifies to its adaptability and durability. In this sense, longevity means success. What better judge than Franklin Delano Roosevelt: '[The US] Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why [the US] constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced.' Thank you.

Rel evance of Magna Carta to human rights in the 21st Century

12 November 2010 Runneymede, Surrey.

Justice Minister, Lord McNally, gave a speech at the launch of the countdown to the 800th anniversary of Magna Carta. [Check against delivery] Thank you My Lord I would like to add my own thanks to Kens first, to you Lord Neuberger who, as the Master of the Rolls, chair the Magna Carta Trust, as did your illustrious predecessors Lords Clarke, Phillips, Woolf and the much missed Lords Denning and Bingham. And my thanks also go to the Magna Carta Trustees, to Runnymede Council, and to everyone involved in arranging this event today. Im pleased to be here in my role as Minister for civil liberties and human rights, because as well as being an enthusiast for civil liberties and human rights, Im also a Magna Carta enthusiast. The Lord Chancellor has reminded us that Magna Carta was not merely the outcome of a struggle between the King and the Barons. It involved the people as well, and it provided the basic principles on which the British state has been governed for nearly 800 years. - ...that the power of the state is not absolute; - ...that whoever governs the state must obey the law; - ...and that whoever governs the state must take account of the views of those who are governed. Magna Carta has been called the most influential secular document in the history of the world. Its importance lies not just in the rights and liberties it sets out though those are tremendously important. But it also records an agreement by an all-powerful king who acknowledged no superior on earth, whose word was law, that he could no longer do just as he liked; that he could no longer rule without legal restraint. The promises Magna Carta contains are as important today as they were in 1215. We only need to watch the TV news, or read the newspapers, to know that even today they are still to be realised in many parts of the world.
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Magna Carta summed up ancient liberties and provided a springboard for modern ones. Those included the principle of habeas corpus, developed in the 17th Century that no one, not just barons, could be imprisoned unlawfully. And that in turn led on to the Bill of Rights

of 1689, which reflected long established traditions of personal liberty and freedom from state oppression. Of course, even in these islands, we have taken several different paths to the realization of these liberties: Magna Cartas specific articles did not then apply in Scotland where the struggle for freedom took its own distinctive path; habeas corpus was first applied in Ireland only in the 18th Century, as your guest the Irish Attorney General, here with us today, will know; and its equivalents were introduced in Scotland only in the 19th Century. However, whether they came sooner or later, what all of these developments had in common, from Magna Carta onwards, was a sensible suspicion of state power. And that is always a suspicion worth cultivating in a healthy democracy. Ever since the principles of good government were established in the UK, we have retained a leading position in the world in defining the relationship between the power of state and the freedom of the individual. The commitment to liberty and the freedom of the individual was one of the cornerstones of the Coalitions programme for government. In that programme, we made very clear our uncompromising commitment to human rights and to the European Convention on Human Rights. That should come as no surprise to anyone. 60 years ago, at the end of the Second World War, Winston Churchill called for 'a Charter of Human Rights, guarded by freedom and sustained by law' to ensure that the atrocities and mass murder committed by totalitarian states before and during the War would never be repeated.
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So lets be clear. Human rights are not a foreign import. They are part of our national DNA, and have been since 1215, and even centuries before. We want people in Britain to understand their rights and liberties so that we are all equipped to assert our own personal freedoms and can help build a fairer society. And we also want to make sure that no-one in authority is tempted to use human rights wrongly as an excuse for inaction or for silly decisions. Because in almost all cases the human rights of any individual can and should be balanced in a common-sense way against the rights of others and the wider needs of society. This is as true now as when Magna Carta was signed. No-one said that King John could not govern, or uphold the interests of the state; only that he had to treat his subjects in a reasonable way, within the law. We celebrate Magna Carta today because it is our first great assertion of the rights of the individual against the power of the state the first great affirmation of the rule of law as the basis of government. We should cherish that heritage, and celebrate the gift that those who framed and enforced the Magna Carta have given to us.

Its a rare and special gift. Lets enjoy it.

Constitutional relevance of Magna Carta in the 21st Century

12 November 2010 Runneymede, Surrey.

The Lord Chancellor and Justice Secretary gave a speech at the launch of the countdown to the 800th anniversary of Magna Carta. [check against delivery] Thank you Lord Neuberger I am delighted to be here today at the launch of a programme of celebrations culminating in the 800th year of the Magna Carta in 2015. I hope they will reignite interest and enthusiasm for one of the greatest events in British history and one of the great developments in the universal history of law and ideas, reflected in the fact that the monument on which I stand now was the gift of the American Bar Association for the 750th anniversary celebration. I am grateful to the members of the Magna Carta Trust, to Runnymede Council, and to everyone involved in arranging this event today. Why, apart from historical and dramatic interest, is it so important that we continue to remember what could be represented as an 800 year-old quarrel between an autocratic king who believed that he had authority from God to rule exactly as he liked, and a set of his barons who represented no-one but themselves and their own local and class interests? Why is it that we are gathered here today to remember the peace treaty that arose from that quarrel, so soon to be repudiated by the King and the Pope, and to celebrate its importance? After all, only two chapters of Magna Carta now remain on the statute book. When we read those two chapters, we have our answer: 39. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. 40. To no one will we sell, to no one deny or delay right or justice. Of course, the reason why we should remember Magna Carta and celebrate it is that it began the process that would define the limits of what the state can and cannot do, and it began to chart the boundaries of the relationship between the state and the individual.

Thats a process that is still under way, and is a perennial challenge for governments, most especially for democratic governments.
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All states, even the most democratic, have a natural tendency to accumulate more power than they need, and to impose more restrictions than are strictly and sensibly necessary. But the answer to every problem is not a new law; and the answer to every risk is not a new restriction. If laws become too numerous, or intrude too deeply and needlessly into our private lives, then it may be necessary to review and even unmake laws previously thought useful. One of the key themes in the programme for Government which we set out after the general election was the need to roll back the power of the state. We said in our Coalition Programme for Government: We believe that the State has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britains tradition of freedom and fairness. We are putting that promise into effect. Since the General Election we have taken steps to end the proliferation of unnecessary new offences, and have introduced a bill to scrap ID cards. In addition we have announced a review of Counter Terrorism powers, published guidelines for our security forces on the interrogation of detainees held by other countries, and commissioned an inquiry into whether the UK has been implicated in the improper treatment of detainees. For me personally, in my role as Lord Chancellor, Magna Carta has particular resonance. In a sense, the Department for which I have responsibility is the living embodiment of Magna Carta. The legal system puts the principles of justice and the rule of law into practical effect, and it is my job to make sure that the system works efficiently and effectively at all times. On 14 May this year, I took my oath as Lord Chancellor at the Royal Courts of Justice, and then before Her Majesty the Queen. The words of that oath are: I ...do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.. The words of that oath resonate with those of Chapter 40 of Magna Carta that I quoted earlier: To no one will we sell, to no one deny or delay right or justice.
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How best to do that is a challenge that we still wrestle with today, and every day:

How do we balance the needs of people who are less well off to access the justice system and get fair treatment in the courts against what the state can practically afford especially in times when money is scarce and we need to reduce expenditure? How do we ensure that justice is delivered speedily and accessibly so that trials do not go on too long, and the system is not clogged up by bureaucratic processes that add nothing to the delivery of justice, and may actually impede it? How far should the emergencies of history, the needs of national security and public safety, impact on the process of justice? Magna Carta was not an end in itself, but a beginning, and those who drafted it, and took the considerable risk of placing it before King John here at Runnymede, acknowledged that. As I have outlined, even today, its promises, which no fair-minded person would disagree with, still present a challenge to those of us entrusted with the duty and the privilege of administering the justice system. The words from Magna Carta which I quoted earlier are emblazoned on the glass doors leading into the library of the new Supreme Court. Anyone can walk in and see them. They remind us that, where justice is concerned, the principles of Magna Carta are a reference to which we should always return to ensure that we are proceeding in the right direction.

Why Tories should back a written constitution

OurKingdom,

11 May 2008

Subjects:

Conservative Party Written Constitution

Scott Kelly, a researcher for the Conservatives, explains why the party should back a written constitution. Scott Kelly (Parliament): I recently joined my students from New York University at a lecture by Professor Vernon Bogdanor on the subject of the British and American Constitutions. The leaflet advertising the event stated that many in Britain are calling for a Constitution. The author of this leaflet may be surprised to learn that we already have one. What we lack is a written, or more correctly, codified constitution most of our constitution is already written in one form or another although it has never been codified in a single document. Although the leaflet may contain factual errors, it is true that the issue of a written constitution has moved up the political agenda. The terrorist attacks of last summer obscured

the fact that constitutional reform was central to Gordon Browns big idea. The Green Paper issued during the first week of his premiership stated that "there is now a growing recognition of the need to clarify not just what it means to be British, but what it means to be the United Kingdom. This may lead to a concordat between the executive and Parliament or a written constitution." As Vernon Bogdanor argued during his lecture, the Green Paper marks a new stage in the process of constitutional reform. While the first stage was essentially about the re-distribution of power amongst the political elite, this new stage is, in theory at least, focused on redistributing power from elites to the people. As such it offers the opportunity for a proper conversation about where political power now resides in our system of government and whether there is a need for change. Yet, even in the political class the need for such a discussion is not universally accepted. Talk to most Conservatives about the British constitution and they get all misty eyed over what they see as its almost mystical quality. The 1997 Conservative manifesto reflected this view, noting that our constitution "has been woven over the centuries - the product of hundreds of years of knowledge, experience and history." This is no longer a viable description. The last 11 years have witnessed extensive constitutional change, much of which such as the abolition of the office of Lord Chancellor was not properly thought through or based on any real demand for reform. These changes have left our constitution fundamentally unbalanced: power is unequally distributed between the component parts of the United Kingdom; the House of Lords now lacks either the legitimacy bestowed by tradition or by popular election. Yet, when I worked in the Conservative Party Policy Unit before the 2005 election I found it difficult to generate much enthusiasm for a fresh look at the Partys position on constitution reform, the Party seemed to be stuck in 1997. There are, in fact, good reasons why the time is ripe for a cross-party debate on establishing a written constitution. The values and traditions that underpin our system of Government are under threat; in particular, the doctrine of parliamentary sovereignty is increasingly impinged by the European Union. The Factortame case, where the European Court of Justice overturned a Law Lords judgement and "disapplied" parts of an Act of Parliament, demonstrated that the uncodified form of our constitution makes it particularly vulnerable to judicial interference. British membership of the EU also means that the familiar argument against a written constitution, that it would undermine parliamentary sovereignty, is far less potent than it once was. In practice a codified document may help to protect the powers of parliament, particularly if it specified that any future transfer of sovereignty to the EU would be dependent on approval by a referendum.

A full cross-party debate on a written Constitution offers an opportunity for a proper evaluation of the British system today and the extent to which it still embodies the values and traditions that many still take for granted.