Britain’s most senior judge says there are “powerful arguments” to adopt a written constitution like the US – claiming it would help the UK overturn rulings from the European Court of Human Rights.
While “a constitution is no absolute guarantor of the rule of law” there are “powerful arguments” in favour of having one, according to Lord Neuberger, president of the Supreme Court.
“We are in a new world whose increasing complexity appears to require virtually every activity and organisation to have formal rules as to how it is to be run and to work, and there is no obvious reason why that should not apply to the most important organisation of the lot.”
He added: “We are now in what to some people might seem to be in an unsatisfactory position with an international treaty, as interpreted by an international court, namely the European Convention on Human Rights, acting as a semi-constitution.”
If Britain had its own constitution, it "would presumably have primacy over decisions of the Human Rights Court in Strasbourg and even those of the EU Court in Luxembourg”. And in cases where European decisions “appeared to be inconsistent with any fundamental constitutional principles”, the British “principles would prevail”.
His comments were made at a keynote speech to 150 lawyers, judges and academics at the Legal Wales conference in Bangor University.
Speaking at the event last Friday, Lord Neuberger warned that as things stand, “without an overriding constitution, it is very difficult for a UK court to adopt such an approach”.
And although Britain has “managed pretty well without a constitution” until now, “the fact that we managed well without a constitution in a very different world from that which we now inhabit may be a point of limited force when applied to the present".
His remarks come just months after a consultation was launched by the Commons political and constitutional reform select committee into whether people favour a written constitution. The consultation, launched in July, ends next January.
Those who think Britain already has a constitution, in the form of things like the Magna Carta and the Bill of Rights, are mistaken, he said; “these are merely a collection of provisions which developed somewhat haphazardly to deal with specific historical events or crises.”
If “our system of Government is going to be significantly reconsidered and restructured, there is obviously a more powerful case for a written constitution,” he claimed.
The process of doing this “may help focus minds on the details of the restructuring,” and “a new formal constitution should provide the new order with a clarity and certainty which may otherwise be lacking”.
Such a move would not be without risk, he warned. “Grafting a written constitution onto our pragmatic system would almost inevitably involve something of a leap in the dark, and many people may fear that it would turn out to be a classic example of a well-intentioned innovation which had all sorts of unintended and undesired consequences.”
However, he said the issue cannot be ignored. “Over the next few years we are going to have to consider and make difficult and important decisions about the constitutional foundations of the UK, decisions which will vitally affect us and future generations.”
And such decisions should be approached with “a mixture of bravery, prudence and principl”, he added.
His comments come just a week after Justice Secretary Chris Grayling announced Conservative plans to abolish the Human Rights Act and create a British “Bill of Rights” if they win the 2015 general election – proposals which would relegate European courts to an advisory role and give British judges the final say when making decisions.
Graham Allen MP, chair of the Commons political and constitutional reform select committee, said: “It appears he’s opening the door and saying there’s more of a case now for a written constitution, and when someone of his eminence makes even an allusion rather than a statement to that effect, I think it’s an extremely powerful remark which needs to be taken seriously.”
He added: “And in the current circumstances, devolution needing to be made permanent rather than unpicked, the case for putting together a written constitution of the sort that we are consulting on is reinforced.”
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