THE NEED FOR A WRITTEN CONSTITUTION

Speech by Jonathan Marks QC, Chair of the Liberal Democrat Lawyers Association to the Liberal Democrat Federal Conference in Blackpool on

Wednesday 21 September 2005

The time has come to bring to an end a set of haphazard constitutional arrangements that depend on trusting government to play by largely unwritten rules – unwritten rules which no-one fully understands, which no-one can enforce and which can be changed at will. For that is precisely what conventions are - and a constitution that relies upon them is as hazardous as it is undemocratic.

This motion (on Elective Dictatorship) rightly criticises the Royal Prerogative. It is essential that in a democracy the powers of the executive are defined and limited by law. On issues as crucial as going to war, or entering into international treaties, government must be fully subject to the will of Parliament.

Then again, we must entrench our fundamental laws. It is unacceptable that having at last succeeded in getting the Human Rights Act into law, government and opposition politicians alike can randomly threaten to derogate from the Act – or even repeal it – by simple parliamentary majority. It is worse still under a system where a substantial majority can be secured with just 37% of the vote.

Traditionally constitutional lawyers told us that our unwritten constitution worked because government observed the conventions and the sovereignty of Parliament ensured respect for the will of the people. However, since 1997 we have seen a real shift towards unaccountable government, with the Prime Minister and his advisers making decisions privately, often without full Cabinet discussion – as Lord Butler found – and with far too little accountability to Parliament. Yet accountability of government to an elected parliament is precisely what makes us a democracy. It must be entrenched in a written constitution.

Judicial independence too, needs to be guaranteed. The government cannot be permitted to bring in legislation by simple majority to exclude judicial scrutiny of whether its action are or are not within the law. For that is exactly what it tried to do over immigration appeals in the last Parliament until persuaded to back down by judges who spoke out.

We have come far too close with this authoritarian government to an abuse of democracy. We cannot afford to trust any longer to luck and the hoped-for integrity of our political leaders. We need a written constitution urgently. But let it be principled. Let it be straightforward and easily understood. Let it be entrenched in our law and not subject to arbitrary change for the convenience of any government with a simple majority. Let it enshrine, define and protect our laws. Let it enshrine, define and protect our democracy.