Wednesday, February 23, 2005

The EU and the UK - a Matter of Constitutions

The EU Pundit is of the opinion that one of the reasons that there is so much opposition to the EU Constitution in the United Kingdom is because there is no tradition of such a fixed written constitution in the UK.

As everyone knows, the UK has no fixed written constitution and never has had one.

Yet, scholars have gone to the fiction of calling the government system in the UK a "constitutional monarchy" in spite of this lack of a fixed written document, assigning a "constitutional status" to various historical documents, judicial precedents and customs. There is even a classic book by Walter Bagehot entitled "The constitution of England". In reality, of course, the English system is "a parliamentary democracy within a monarchy", and it in fact lacks a fixed written constitution, such as that now being introduced into the EU.

The public domain 1911 Encyclopaedia Britannica writes as follows:

"In one important respect England differs conspicuously from most other countries. Her constitution is to a large extent unwritten, using the word in much the same sense as when we speak of unwritten law. Its rules can be found in no written document, but depend, as so much of English law does, on precedent modified by a constant process of interpretation. Many rules of the constitution have in fact a purely legal history, that is to say, they have been developed by the law courts, as part of the general body of the common law. Others have in a similar way been developed by the practice of parliament. Both Houses, in fact, have exhibited the same spirit of adherence to precedent, coupled with a power of modifying precedent to suit circumstances, which distinguishes the judicial tribunals. In a constitutional crisis the House of Commons appoints a committee to search its journals for precedents, just as the court of kings bench would examine the records of its own decisions. And just as the law, while professing to remain the same, is in process of constant change, so, too, the unwritten constitution is, without any acknowledgment of the fact, constantly taking up new ground.

In contrast with the mobility of an unwritten constitution is the fixity of a constitution written out, like that of the United States or Switzerland, in one authoritative code. The constitution of the United States, drawn up at Philadelphia in 1787, is contained in a code of articles. It was ratified separately by each state, and thenceforward became the positive and exclusive statement of the constitution. "

To our great surprise, the discussion of this topic in an objective manner has led to a flurry of heated postings by persons who take offense to our posting of these facts, which by no means are inimical to England or the UK in any manner. We are merely stating objectively the way that things are.

The EU Pundit has taught this subject at a university level for many years and we can assure the reader that "identifying" a constitution of England or the UK is no easy task. Indeed, if 20 members of the House of Lords and 20 members of the House of Commons and 20 of the highest ranking legal scholars in the UK would sit down separately and write down what they think the content of their unwritten constitution is, you would get 60 different versions. Indeed, if the UK unwritten constitution were clear, it could be easily codified, but that is not the case, and that is why it has never been done.

If other scholars want to call the UK system a "constitutional monarchy", fine. It is a matter of definition and there is nothing wrong per se in calling it that. However, the label is misleading. If no fixed written constitution is required to be a "constitutional state", then every other country without a written constitution is also potentially "constitutional" in nature, since we can derive their non-existing constitution (i.e. their system of state) from their unwritten law. Frankly, we see problems with this approach, because it leads to subjective judgments about what kinds of documents, precedents and customs have "constitutional status" and which do not.

In any case, our main point in past posting was that this lack of a fixed written constitution is a tradition which in fact makes many of the people in the UK distrustful of such a fixed written constitution in the EU. And we are certain that we are quite right in this analysis, based on the heated opposition that we find in the UK to the EU Constitution, which is in great degree simply a codification of already existing EU law.

Please note that this analysis says nothing about our feelings about the UK, as some commentators have imputed. We are Anglophiles and appreciate greatly the tremendous impact that the English system of government has had on democratic systems of government throughout the world.

Please note also that although we are very much pro-EU, we definitely assign a special position to the UK in the EU, and, contrary to the heated postings by some commentators, to put it frankly we are not even sure we would support EU participation in the European Union if we ourselves were from the British Isles. It would be a tough decision, simply because the British Isles are removed from the Continent, have always been more insular in their traditions, and still are - which is part of their charm. However, one also has to pay heed to economic realities, and that is the core of the reason for UK participation in the EU. The EU is the world's largest market and a lack of membership in that market is something which perhaps even the UK would not suffer well in coming decades.

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