Barber, ‘Against a Written Constitution’ (2008)
Main idea: The UK has a constitution that works well despite its unwritten character and has
produced a stable government; codifying the constitution for no apparent reason carries
more risks than any advantages and thus is unnecessary.
Risks forcing through reforms that don’t carry public approval or are concealed
Any reform to the constitution would likely be contained in a package deal, risking
unpopular reforms being passed on the back of other reforms
People responsible for formulating constitutional conventions into writing could pass
their own judgment/evaluation onto the legal content, resulting in concealed reforms;
“hidden change effected without proper debate”
Risks shifting the power from democratic institutions to the judiciary
Two positions
o Judges should prevent the state from infringing on individuals’ rights, uphold
obligations between & within institutions VS
o Political power can only be legitimately exercised through democratic
institutions
To what extent will judges be required to enforce the content of the new constitution?
o “elected dictatorship”? would giving the judiciary more power shift the balance
to be more even?
o There already have been severe restrictions imposed on the govt (HRA, EU,
devolution) that granted judges more power; the rebalancing has already
occurred
Many of the conventions would be difficult to enforce due to their informal/vague
character;
o Ministerial responsibility – already partially codified; how would a judge decide
what is a satisfactory answer to a parliamentary question without imposing
own personal judgment? What remedy would be available and to whom?
Conventions shape and are shaped by a political relationship between the Parliament
and the government, which changes over time depending on the strength of each
institution; courts stepping in would lead to changing these conventions
Risks provoking a constitutional crisis
Some of the issues, such as the relationship between EU and English law, would
have to be explicitly clarified
This could provoke a constitutional crisis re: who is authorised to make these
decisions regarding the relationship? etc.
It could be good because people are entitled to clarity on legal matters that concern
them; this would be a good opportunity to resolve the problem of allocation of power
within the system
Main idea: The UK has a constitution that works well despite its unwritten character and has
produced a stable government; codifying the constitution for no apparent reason carries
more risks than any advantages and thus is unnecessary.
Risks forcing through reforms that don’t carry public approval or are concealed
Any reform to the constitution would likely be contained in a package deal, risking
unpopular reforms being passed on the back of other reforms
People responsible for formulating constitutional conventions into writing could pass
their own judgment/evaluation onto the legal content, resulting in concealed reforms;
“hidden change effected without proper debate”
Risks shifting the power from democratic institutions to the judiciary
Two positions
o Judges should prevent the state from infringing on individuals’ rights, uphold
obligations between & within institutions VS
o Political power can only be legitimately exercised through democratic
institutions
To what extent will judges be required to enforce the content of the new constitution?
o “elected dictatorship”? would giving the judiciary more power shift the balance
to be more even?
o There already have been severe restrictions imposed on the govt (HRA, EU,
devolution) that granted judges more power; the rebalancing has already
occurred
Many of the conventions would be difficult to enforce due to their informal/vague
character;
o Ministerial responsibility – already partially codified; how would a judge decide
what is a satisfactory answer to a parliamentary question without imposing
own personal judgment? What remedy would be available and to whom?
Conventions shape and are shaped by a political relationship between the Parliament
and the government, which changes over time depending on the strength of each
institution; courts stepping in would lead to changing these conventions
Risks provoking a constitutional crisis
Some of the issues, such as the relationship between EU and English law, would
have to be explicitly clarified
This could provoke a constitutional crisis re: who is authorised to make these
decisions regarding the relationship? etc.
It could be good because people are entitled to clarity on legal matters that concern
them; this would be a good opportunity to resolve the problem of allocation of power
within the system
