One remedy that has been proposed, including recently by Gordon Brown, is a written constitution. Much of our constitution is written down in the form of statutes, court judgements etc. What is generally meant by the term however, is a constitution that has been codified, written down in one document, and which contains a mechanism for its amendment. Such a mechanism typically requires a high level of agreement by the legislature, subsidiary governments etc.

Whether any such constitution would represent an improvement on what we have depends on what is in it. A constitution that allowed the president to rule by decree would not commend itself to us. A constitution that merely codifies current arrangements should not. Any written constitution for the UK needs to contain provision to tame the executive, and that will not happen until the executive has already been tamed.

U.S. experience shows there can be dangers in a constitution that purports to limit the power of the executive. For example, there has to be an institution that interprets the constitution. In the U.S. it is the supreme court. In 1886 the supreme court gave corporations the human rights granted to people in the constitution without any argument being heard for or against. It thus applied the 14th amendment, which had been passed at the conclusion of the civil war to ensure that former slaves got equal treatment, to prevent the Southern Pacific Railroad being taxed.

A second danger arises from the difficulty of changing the constitution. The second amendment to the U.S. constitution states:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The context in which this amendment was passed has clearly changed, and yet it has proved impossible to revoke this amendment, and so any sensible gun control measure can be struck down as unconstitutional.

In practice, if not in theory, the president of the U.S. is able to rule by Executive Order - thus bypassing all constitutional constraints.

In view of the above, although we do not oppose the idea of a constitutional convention, we urge extreme caution. We do accept that the constitution is no longer safe in New Labour hands and that there is a case for writing down the constitution We have in order for example to define our relationship to Europe.

The problem with this argument is that we would not want to entrench a situation in which the Commons is elected by first-past-the-post and the position of the House of Lords is anomalous. We have an alternative suggestion:

There could be a middle way between the current situation in Britain, and a fully blown “controlled constitution” of the type of the U.S. constitution. We envisage this compromise would contain the following elements:

• A clear definition of what is constitutional law and what is not, and a classification of all statutes in force as constitutional or non constitutional. These things to be captured in statute, which itself would be classified as constitutional law and have the assent of the House of Lords.
• A codification of certain of those elements of our constitution which are not defined in statute, but which are deemed necessary and binding. This would exclude certain conventions, such as the Salisbury Convention, which restrict the use by the second chamber of powers it has under the Parliament Act.
• The second chamber to have increased powers to delay any legislation that is acknowledged to repeal or add to constitutional law.
• No implicit repeal of constitutional statutes.
• Constitutional measures to provide that treaties and other international agreements are not deemed to be ratified until the necessary domestic legislation has been passed.
• Provision that if the government brings forward legislation that it claims to be non-constitutional, this can be referred to the courts, which will judge whether it is or not. If the legislation is judged to be constitutional, then it will be declared void pending a vote by the second chamber. This principle could be applied to any legislation passed since the human rights act 1998 became law.