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The United Kingdom – unlike many states – does not have a codified constitution. Its ‘unwritten’ constitution is formed by Acts of Parliament, court judgments and conventions. Many commentators now argue that the system is buckling under the pressure of the Brexit process, leading to political deadlock. Constitutional scholar Elliot Bulmer and Theos Research Fellow Paul Bickley argue the pros and cons of moving to a written, codified system. 25/10/2019
A ‘written constitution’ is a supreme and fundamental law. It is supreme in the sense that it is harder to change than ordinary law and prevails over ordinary law in case of incompatibility. It occupies a place at the apex of the hierarchy of legal norms, as the lex superior from which other laws derive their authority. It defines the state, proclaims its basic principles, protects the rights of citizens, establishes governing institutions, and regulates the relationship between them. An unwritten (or uncodified) constitution would be defined, as Lord Bolingbrooke once put it, as “the whole assemblage of laws, institutions, traditions, customs and practices that embody how we are governed”. Parts of that ‘unwritten constitution’ are of course written down, but that is immaterial: what they lack, and what makes the term ‘unwritten constitution’ as self–contradictory as an ‘unfloating boat’ or ‘inedible food’, is supreme and fundamental law status. Form and function can’t be separated.
Any great human endeavour – not least the governance of a democratic state – needs rules and principles by which to function. At the most basic level a written constitution will ensure that government is operated in accordance with rules and principles that are known, enforceable, and cannot be unilaterally changed by those in power. In the absence of these, all is arbitrary and chaotic – a pot–mess of ordinary statutes, conventions and traditions that can be changed at will by a government with a working majority in Parliament. An unwritten constitution cannot be sufficiently clear or explicit. It cannot be enforced and upheld against harmful transgressors, and it cannot be protected against hasty, self– interested and destructive changes.
Sometimes I think a written constitution might be a good idea. Then I hear or read the arguments presented, and am struck by the fact that they begin in exaggeration (of our present difficulties and of the potential of a codified constitution to resolve them) and end up in a kind of documentary fundamentalism. Apparently, nothing but a written constitution can save us.
For instance, you say that to talk of an unwritten constitution is a contradiction in terms, and that the alternative to a supreme law is arbitrariness and chaos. This is an obsession with form over function. All countries have a constitutional order which, whether including a single text or not, is inevitably a mixture of written documents, conventions and common law. That is as true in the UK as it is in South Korea, or Australia, or the United States. Surely the question should be, is that constitutional order effective in sustaining certain goods – civil and political rights, stable institutions, and some measure of public confidence and participation?
It’s true that we are in all kinds of political mess. But is it true that our constitutional order has been shown to be particularly deficient? I’m not sure that it has. Our departure from the European Union means that sticking with the constitutional status quo is not an option. Nor is a return to our constitutional arrangements before our accession in 1973 (devolution to the Scottish, Welsh and Northern Irish administrations and the Supreme Court have all been introduced in the meantime). Domestically, however, Parliamentary Sovereignty is still the organizing principle.
The Government’s recent (clearly) tactical prorogation seemed like a manipulation of executive power, but then the Supreme Court found against the Government in Cherry/Miller v The Prime Minister, and Parliament returned. In the first Miller case, the Supreme Court found that the Government’s prerogative in foreign affairs could not be used to change law previously enacted by Parliament – so the Government could not leave under Article 50 without Parliamentary approval. Effectively, both these judgements buttressed Parliamentary sovereignty, that allegedly shaky and uncertain foundation of our constitution.
So it’s a strange argument that we need a codified, big–C, constitution to better limit the excessive power of government in such a time as this. We currently have a Government that has blown up its own majority, can’t win a vote (and therefore can’t legislate), is having its hands tied on a no–deal departure by the Benn Act, and can’t even force a general election. No party has won with a large parliamentary majority since 2005. While we can’t say that this this is permanent political climate change rather than temporary political weather, for now it seems that governments constituted by shifting coalitions rather than domineering single parties are more likely.
You imply that the constitution hasn’t been demonstrated to be deficient. It depends what we mean by ‘deficient’. What’s the standard by which the constitution is to be judged? Putting together the policy failures, the lack of responsibility, the deadlock, the scandals and the corruption, what emerges is a picture of a British state that serves an ever–smaller number of people to the exclusion of the common good. Present divisions over Brexit are part of a wider, deeper crisis, which is a precipitous fall of the state’s legitimacy. Those who want to just make Brexit go away, and rewind the clock to before 2016, forget this at their peril. The anger, alienation and loss of confidence in ourselves, our identity and our institutions that fuel Brexit may be misplaced, but they are very real.
It is worth clarifying the difference between the government and the State. Indeed, one of the key functions of a constitution is to maintain that distinction – to protect the enduring, impersonal authority of the state (the ‘common–weal’, or ‘res publica’, of which we are all members) from the government of the day (which is necessarily partisan). We need a written constitution not just to restrain the government, but also to augment the authority and the legitimacy of the state. The examples you raise of recent Supreme Court decisions are indeed illustrative. These decisions have tended to reinforce parliamentary sovereignty because the courts have no higher constitutional law to hang their hats on. They have also exposed the weakness of the Supreme Court in the unwritten system. The very day after the decision in Cherry/Miller was announced, a Conservative MP wanted to abolish the Supreme Court – that could be done by a simple Act of Parliament, because in an unwritten system nothing is fixed or stable, everything is just one majority vote away from annihilation.
I think I’ve already tried to address the standard point – the purpose of the constitution is to defend the goods of ‘civil and political rights, stable institutions, and some measure of public confidence and participation’. I don’t think we’re a million miles away from each other here, with your mention of the idea of the common–weal. These goods always have to be fought for and renewed and revitalized. My point is this – I don’t think they’re any more at threat now than they usually are, and I’m not sure a written constitution would protect them (if protected by anything, I would say they are protected by active citizens). Though that’s a commonplace notion, and I’m pretty sure I’ll have said that kind of thing myself, I would also at least want to test the notion that Brexit is driven by anger and alienation. But even if it is true in a straightforward way (there’s something of a myth of a single cause about it), it would be another problem which would not be ameliorated by a written constitution.
Here’s a concession – we do need to do some constitutional tidying up or, perhaps, putting things that have been carelessly knocked about back in their place. It is not the ancient aspects of the constitution that have caused havoc but innovations like devolution and the use of referendums. While there may be strong cases for these in isolation, we are struggling with competing political legitimacies – the legitimacy of the Scottish government to defend the interests of the Scottish people, the legitimacy the 52% vote to leave the European Union. The problem here resides not in the uncodified form of the constitution, but in political decision making which demonstrates an all–round lack of foresight.
I’m conscious that this will read as a case against change, rather than a case for the constitutional status quo. That is indeed what it is but, at a time when all the social and political forces are centrifugal, it is a necessary case. We’re not working from a blank sheet of paper but in a particular time and particular place, amidst particular institutions and in a particular political culture. The process of forming a written constitution now would be perceived as a surreptitious intervention in the Brexit process itself, elites again curtailing the principle of Parliamentary sovereignty just at the point that democracy reasserted itself.
You are right to say that the innovations have caused difficulties. But the difficulties come because the limits of improvisation and jerry–rigging have been reached. The Blair–Brown reforms were necessary, but they were the last ditch attempt at the old way of doing constitutional change through piecemeal, just–in–time, least–you–do–the–better incrementalism. The overall coherence of the old system was lost, and no new coherence was achieved. These reforms should have gone further. We might be in a very different position today, had the Institute for Public Policy Research’s 1991 ‘Constitution for the United Kingdom’, rather than a slew of half–baked statutes, formed the basis of Blair’s agenda.
The unwritten constitution cannot provide robust answers to the fundamental questions about identity, principles, rules, institutions of governance, and rights and responsibilities. The United Kingdom is suffering a crisis of identity. It is hard to see what the United Kingdom is for, why it exists and what holds it together. On what general principles should the state be based, how should we govern ourselves, and how do we discern and strive to reach the common good? These are questions that the Scottish independence movement has been pondering for some time, but which England has never had to consider – until the Brexit vote.
It would be wise to recognise when a constitutional settlement has broken down and when a new ‘constitutional moment’ presents itself. We need a restored civic covenant to bind ourselves together as a political community under common rules for the common good. Without this commonality, we are not fellow–citizens engaged in argument about alternative visions of what is good. We are enemies coexisting in a fragile and begrudging absence of conflict who cannot know true civil peace or civic fellowship with one another. If we can re–found the state, through democratic and inclusive constitution–building processes, before polarisation spills out into open conflict and before unchecked struggles for power break into brutal repression, many lives might be saved, much unnecessary destruction averted, and a shred of national honour regained.
It seems to me that you are making two distinct if related cases. On the one hand, the institutional and legal case for stable institutions and clear rules of the game. On the other hand, the cultural and moral case for – as you put it – a restored civic covenant. On both counts, you assert rather than evidence the case for a codified constitution.
On the institutional side there is clearly a need to consider how our present institutions will operate, not least in the light of our departure from the EU. For instance, what competencies belong to the devolved institutions as opposed to Westminster? But a single entrenched statute is not a necessary means to meet modest ends of this kind. Our liberties have thus far survived profound challenges, and with some exceptions, have grown over time without it. Ultimately, the chief check lies not in balancing executive function against judicial and legislative, but in democratic accountability of Parliament – executive and legislature – to the voting public. It may be that many advocates of a written constitution think that the people need to be protected from themselves. There is certainly something of that in the air at the minute. To paraphrase Tawney on socialism, however the constitutional ideal may be expressed, few things could be more remote from it than a herd of tame animals with wise rulers in command.
So to the cultural case. Perhaps historical perspective would help? It would remind us also that any sense of shared national identity and purpose is likely going to be as much a matter of what we are against as what we are for. The Hanoverian settlement was anti–French and anti–Catholic, imperial, and militaristic. In more recent times, many new constitutions have been directed against a recent regrettable past. The South African constitution begins, We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity, and the Polish, Having regard for the existence and future of our Homeland, Which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate, We, the Polish Nation… It is hard to imagine what ‘constitutive story’, as Linda Colley has put it, we would tell of ourselves right now. By hard, I suppose I really mean impossible. Perhaps Britain’s departure from the European Union would be a sustaining liberation myth for some. But there we have the central, somewhat tragic, paradox: a written constitution might be able to tell us who we are, but how could we write one if we do not know who we are?
The need is not so much to protect the people from themselves, but to protect the very institutions and processes of parliamentary democracy from being distorted. This is the prosaic work that written constitutions do: they stop governments with ordinary majorities from stacking the Electoral Commission, or riding rough–shod over the rights of the Opposition, or manipulating electoral rules to keep themselves in power. It is not to stifle parliamentary democracy, but to protect it, that a written constitution is needed. The constitution provides the stable platform in which parliamentary democracy takes place. It means we don’t have to worry about the latest election being the last.
But the problem is not simply one of division on the issue of Brexit. That is, fundamentally, a constitutional question – a question about who we are and how we govern ourselves – but it is not the reason why we need a written constitution. Disagreements about the nature of our future relationship with the European Union – including whether, when, and on what terms, we are prepared to consider re–entry – would continue to be just as divisive under a written constitution as they are without them. A written constitution is not, and cannot be, a soothing cover for those sorts of disagreements. No, the problem is deeper and more worrying than that. The terrifying thing is not that we disagree about Brexit, but that Brexit is happening in a state with winner–takes–all elections, no written constitution, where all our democratic rights depend solely on the goodwill, self–restraint, moderation and moral responsibility of the party in Government. Such reliance on ‘good chaps’ and muddling through might have worked to a point, but it is now reaching exhaustion. What do we do when the rules we thought we lived by break down – when those in power choose not to honour or respect them?
A written constitution isn’t a leap in the dark. All the countries to become independent from the British Empire since the Second World War adopted written constitutions, most of them modelled on the Westminster system. We have plenty of tried and tested examples on which to draw. I am not proposing some utopian scheme, but a constitution perhaps not dissimilar, in its essentials, from those of Commonwealth countries like India, Jamaica or Barbados.
Constitution–building is like dentistry. There’s never a good time for it, and no one does it for fun, but sometimes it is necessary and when done right it prevents greater pains in the future. It is true that these are difficult times.
In many parts of the world today, constitution–building is precisely a response to conflict. It happens not in times of peace and tranquility, but after neighbours and cousins, having ruined their country, and after much spilling of blood and treasure, decide to end their enmity, and to build the institutions, and to define the common principles and values, that will enable them to live together again in a kind of temporal peace, if not always in perfect harmony. This is what the Hanoverian constitutional settlement, hammered out between 1689 and 1746, achieved. After the violence of the civil wars and a century punctuated by invasion, rebellion and dynastic struggle, it turned Royalists and Parliamentarians – who has been enemies facing each other across the battlefield – into Tories and Whigs facing each other as political opponents across the dispatch box in Parliament. Brokered agreement about the fundamentals, and a commitment to shared institutions, rules and principles, made a lasting peace, stability and progress possible. That Hanoverian bargain held, in its essentials, for two and a half centuries, but it is frayed and broken today. Nobody should under–estimate the difficulties of restoring a constitutional settlement, nor dismiss the very real risks of failing to do so.
Paul Bickley and Elliot Bulmer
Dr Elliot Bulmer is a Senior Programme Officer in the Constitution Building Programme of the International Institute for Democracy and Electoral Assistance and a former constitutional advisor for the United Nations Development Programme in the South Pacific. He is the author of several books on constitutional affairs, most recently ‘Constituting Scotland: The Scottish National Movement and the Westminster Model (2016: Edinburgh University Press).
Paul is Research Fellow at Theos. His background is in Parliament and public affairs, and he holds an MLitt from the University of St Andrews’ School of Divinity. Paul is the author of Building Jerusalem? Christianity and the Labour Party (2010) and numerous Theos reports.
Posted 24 October 2019
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