A thread on this interesting thread.
1. It seems to me that the central problem with the U.K. constitution is a deficiency in checks and balances.
2. The stark version of that problem is that 326 MPs (enjoying the support of, say, only 35% of voters under FPTP) could pass an Enabling Act giving huge powers to the Government, winding up devolved and local government, etc. The Lords could only delay such a Bill.
3. That threat is of course a bit fanciful. And it could fairly be pointed out that if such a thing ever became politically possible, that would be in a political climate where constitutional or legal checks might not help much.
4. But the danger with “flexibility” and no legal checks on the power of 326 MPs to pass whatever laws they like is more creeping.
5. Eg the steady diminution in the powers (and finances) of English local government has a lot to do with the absence of any check/balance stopping accretion of power to the centre.
6. Many modern constitutions have controls on the ability of the national parliament to centralise power. Usually both legal (limits on the power of the centre) and institutional (the states/regions have a voice at the centre - eg the German Bundesrat).
7. Another example of the creeping dangers of “flexibility” is Henry VIII clauses handing legislative powers to Ministers (banned by eg the Irish Constitution, which takes separation of powers seriously).
8. Yet another serious problem of “flexibility” is policy churn, as each government rewrites large chunks of what was done a couple of years ago.
9. See endless Criminal Justice Acts, vocational training, and the work of @instituteforgov here instituteforgovernment.org.uk/publications/a….
10. @robertcraig3 - a constitutional traditionalist - says that he has no problem with checks and balances but is concerned about lawyers (I think he really means the courts) getting more involved in constitutional/political decisions.
11. One would be tempted to say that a system that has recently generated Miller, Evans, the recent Scottish EU Bill case and so on isn’t doing too badly on the court involvement front.
12. But a more serious answer is that if you are to have checks and balances - and Robert seems to agree that you do - then ultimately you need a set of rules allocating different powers to different State actors.
13. And, ultimately, those rules have to be (a) entrenched against 326 MPs, whipped by the governing party, and chosen by ~35-40% of voters, deciding to alter them because they are obstructing what the Govt wants to do and (b) adjudicated by the courts.
14. That entrenchment and enforceability in the courts is - as @odtorson points out - what people who call for a “written constitution” really mean.
15. (The phrase itself is a meaningless one: as Robert points out, much of the U.K. constitution is written; and much of eg the US constitution is “unwritten” convention.
16. But if you interpret the demand for a “written constitution” as wanting a set of rules about who does what within the UK State and which is entrenched against change by 326 MPs, then it becomes meaningful.)
17. I don’t think I’m the only one who sees the Brexit imbroglio as having strengthened the case for an entrenched set of constitutional rules. But I’d also cite the increasing difficulties of fitting devolution into our current arrangements, as well as the points made above.
18. If that means a few more cases where the courts decide who does what within our constitutional framework, then that seems to me to be a small price to pay for real and solid checks and balances.
19. Which - for reasons brilliantly explained by eg Montesquieu or the authors of the Federalist Papers, and as the U.K. itself accepted when helping to write Germany’s Basic Law - is likely to lead to better law-making and better government. /ends
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