Top barrister blasts calls for a written constitution 

A top barrister has today issued a sharp criticism of suggestions the UK should adopt a written constitution.

Sam Fowles said via Twitter this morning: “This is a worrying inversion of a key constitutional principle. Fundamental to our law is the principle that a citizen can do anything EXCEPT that proscribed by law but the government cannot do anything UNLESS it has a prescribed power to do it.”

His remarks were made in response to a post made by George Peretz QC on Thursday that read: Comment by @DrHannahWhite at this afternoon’s seminar on @jeff_a_king ’s paper on a written constitution: senior civil servants tell her that ministers in the current government constantly ask “what precisely stops me doing this?”

He went on: “In the end, as she said, the reaction to that may eventually be: “We had better write out precisely what stops you doing that.”

Mr Fowles is a barrister specialising in public and constitutional law. He is a Counsel to the APPG on Democracy and the Constitution, a member of Cornerstone Barristers and a fellow at the Foreign Policy Centre.

A written constitution is a formal document defining the nature of the constitutional settlement, the rules that govern the political system and the rights of citizens and governments in a codified form.

The UK’s constitution is not written in a single document, but derives from a number of sources that are part written and part unwritten, including accumulated conventions, works of authority, Acts of Parliament, the common law, and EU law.

Historically, the UK has not had a definable statement of individual rights and freedoms either – the 1689 Bill of Rights sets out the powers of parliament vis a vis the monarch – but rather relies on the notion of residual freedom and the concept of parliamentary sovereignty.

Therefore, individuals’ rights remain dependent on ad hoc statutory protection or upon judicial protection under common law.