Calls for a written UK constitution are not new, but, Sir Stephen Laws argues, a move from a ‘political constitution’, like the one we have, to a ‘legal constitution’, in the form of a new written one, risks paralysing the flexibility that has made the UK model so successful.
I worked at the interface of government, Parliament and the law for 37 years, led the drafters of UK legislation and gave constitutional advice. I’d like to share with the project my doubts about the practicability and wisdom of a written constitution for the UK.
One of the first things new legislative drafters learn is that Acts of Parliament can do only one thing: change the law.
The preparation of legislation involves three stages.
- First, you identify the political objective: the practical change in the real world which is desired.
- Secondly, you identify whether the law needs to be changed to achieve that objective, and if so what the change is: the legal policy. It may, for example, be the removal of a legal obstacle or “mischief”, such as a restriction on powers or capacity, or it may involve new legal incentives to particular conduct.
- Lastly, you determine the best way to make that change. Both the legal detail of the change and the drafting must ensure, not only that the change works in purely legal terms to implement the legal policy, but also that it works in practical terms to promote the political objective.
Legislation is likely to go wrong when elements of this process become disconnected. One common risk is the making of false assumptions about how the legal policy might serve a particular political objective. An obvious example is an assumption that prohibiting the way people currently achieve X will prevent them from wanting to achieve X, so they will not try to find another way to achieve X.
Another risk is that, in the development of the legal policy or the polishing of the drafting, those involved will lose sight of how that policy connects with the political objective. Both the political objective and the legal policy are likely to involve modifications of complex systems. Modifications of each will have effects elsewhere in that system, and on the other. Legislating involves assessing the likely impact throughout both systems of the proposed changes. Continue reading