A Welsh Constitution III (b): What format should a Welsh Constitution take?

(Title Image: The Atlantic)

Having looked at how a Welsh Constitution could be drafted (Part IIIa), the next step is to consider options for how a constitution could be structured.

The key considerations include:

  • Type – Should there be a formal written constitution or should we continue with the UK’s uncodified, unwritten model?
  • Detail – Should the constitution govern things to the letter (prescriptive) or should parts of it be deliberately open to interpretation?
  • Inviolability – Should the Constitution as a whole be unamendable, or should specific parts be unamendable?
  • Accessibility – How do you balance the detail required to ensure a constitution works properly with a need for as many people as possible to understand it?

Type of Constitution (Part I)

If you believe Wales should continue with the UK’s unwritten, uncodified model then you might as well stop here.

In such circumstances, constitutional law would be left to the Senedd alone (though they may choose to hold referendums on certain topics) and we would probably continue with a principle of parliamentary sovereignty. Wales would inherit all current UK constitutional law (Part II) and that would, in turn, be amended as and when politicians see fit.

It’s a similar situation with an uncodified, written constitution (like Israel). Under that model, there may be a set of Basic Laws and Rights drafted and ratified, but most elements of constitutional law would be left to legislators.

I’m assuming most people reading this would want an independent Wales (perhaps the UK as well) to have a single written constitution.

In that case, it could be drafted either by the formal codification of existing constitutional laws (which would be fairly time consuming), or one of the methods outlined in Part IIIa. Most of the rest of this article continues based on the assumption of a written/codified constitution.

Detail: Prescriptive vs Descriptive

Constitutions around the world vary in length and depth – though according to University of Chicago legal experts the more successful and long-lasting ones tend to be detailed.

If we want a more prescriptive constitution, then every single matter would be outlined in detail to leave absolutely no ambiguity as to how things work. In principle, this should leave no matter open to interpretation and everyone will know where they stand – meaning less risk of constitutional court challenges as well as a clearer application of the rules.

The downside is it would likely lead to a very complicated document that’s likely to be inaccessible to the public (which I come back to later), only understood by academics and legal professionals and may, in the longer term, lead to some sections becoming outdated as society changes unless it has some in-built flexibility.

Drafting a more flexible and open-ended constitution could leave the detail for other bodies to work out and apply (i.e. allowing the Senedd to govern its own procedures – Part Vb – through its own Standing Orders instead of listing all of the Standing Orders in the Constitution itself; leaving electoral rules and boundary rules to independent commissions).

All the constitution would need to do is lay down the ground rules – though the obvious downside to this is that one person or group’s interpretation is likely to be very different from another person or group. A more flexible constitution would, therefore, hand more power to the courts (judicial tyranny – Part I) because judges would be the ones left to interpret it.

Inviolability (Part VIII)

Some national constitutions include clauses which can never be changed – even by legislators – or are incredibly hard to change (i.e. requiring unanimity) particularly around basic rights (Part XII), some aspects of electoral law and the form of government. These are known as entrenched clauses.

Before drafting a constitution, it might be worth considering whether some aspects can never be changed. Off the top of my head, this could include equal status for the Welsh language, a ban on reintroducing the death penalty and certain legal and civil rights.

Accessibility

By and large, constitutions are not bedtime reading.

The danger is that if you use as simple language as possible in order to broaden the accessibility of the document, you could accidentally leave loopholes or other matters open to interpretation. Some technical terms (i.e. prorogation, legislature, parliamentary session, legislature, executive, presiding officer/Llywydd) will be needed, while the Welsh and English language versions will need to be equally interpretable. So one of the questions would be, “Are there some words in Welsh which have very different meanings and interpretations from English? If so, which version has precedence?” A starting point would be the Welsh Government’s legislative drafting guidelines (pdf).

Meanwhile, excessive use of legalese and political buzzwords would alienate everyone and make it less likely for the majority of people to understand what their rights are or how the country works.

It would be worth using standard modern English and Welsh and avoiding archaic words and phrases – but what about the visually-impaired and those with learning disabilities?

The draft constitution should, at the very least, be available in official braille and audio formats, while an “easy read/young person’s” version could be published at the same time as the full final constitution.

How much would it cost to draft a constitution?

Drafting a constitution is a complicated process, but needn’t cost a lot of money. It largely depends more on how it would be drafted (Part IIIa) and the length of time each drafting method takes.

The cheapest option would probably be a closed constitutional convention (because it’s likely to be the quickest way to do it), an online crowdsourcing effort, or even leaving it to the Senedd. The most expensive would likely be a Constitutional Assembly or a Citizens’ Assembly (cost of recruitment, expenses, hosts, advisory staff).

It’s impossible to place a monetary value on a constitution, but you would assume those people drafting it (or helping to draft it) would expect to at the very least be eligible for expenses, while a national referendum/referendums in Wales, if required (based on the 2011 cost), would be at least £8.2million. So if I had to guess, it would probably need a budget of at least £15million to be on the safe side, with £8.2million earmarked for a referendum on the final version (if needed) – though it’s unlikely to use up all of that funding and the cost of a referendum (if it’s needed) would likely vastly outstrip the cost of everything else.

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