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Wednesday 8 May 2019

Opinion: the Tortoise Take

Time for a written constitution

Britain’s political system was once a point of pride. These days, it’s a source of entertainment. It’s time for the UK to set out citizens’ rights and the responsibilities of government in a written constitution.

By Matthew d’Ancona

Don’t fixate on Brexit. Look back over the past decade at the high jinx of British politics:

  • Three referendums, each called on different terms and with varying rules governing eligibility to vote.
  • Two prime ministers – Gordon Brown and Theresa May – have ruled the country without first winning a general election. By the end of this year, we may well have a third.
  • The shape of the Union is uncertain, not just as Scotland weighs independence but as more people question Northern Ireland’s future.
  • Devolution within England is uneven: some cities have mayors, others unitary councils, many neither. Local democracy is a mixed bag.
  • Identity politics and individual rights animate British politics, but the UK has an ambivalent attitude to the jurisdiction of the European Court of Human Rights and a Bill of Rights of its own.
  • And the failure to deliver a Brexit deal is about more than the deadlock between Leave and Remain: it’s a stand-off between representative democracy and the will of the people.

So much for muddling along. So much for government based on precedent and pragmatism. So much for Britain’s vaunted, ancient uncodified constitution.

Our politics is broken. The tragicomic spectacle of Brexit, the seepage of trust from the Westminster class and the rise of angry populism have converged in a structural political crisis that has no clear precedent.

The UK should take to heart the political fiasco that is draining public confidence in politicians and parties. The country should use this crisis to build a modern political system that revives its democracy for the 21st century. It is time for Britain to start the long, potentially inspiring process of writing its constitution.

Last month, Tortoise held a ThinkIn on this question. Two former presidents of the Supreme Court – Lord Neuberger of Abbotsbury and Lord Phillips of Worth Matravers – cautioned against the hasty drafting of a constitution in the midst of the present political melee. But neither they, nor many others in the room, were sanguine about our present arrangements. This is new.

The case for a written constitution – a formal document defining our constitutional arrangements, the rules that govern the political system, and the rights of citizenship – has often been little more than a proxy argument, draping intellectual rhetoric over hostility to the government of the day.

It is no accident that the most vigorous campaign of recent decades for a codified constitution, Charter 88, was launched by disenchanted liberals after nine years of robust Thatcherism.

There has long been a broader, if rarely-articulated confidence in what Churchill – in his “Finest Hour” speech in May 1940 – described as “the long continuity of our institutions”. It is true that the UK remains one of only a handful of countries that do not have a written constitution (the others include Israel, New Zealand, and Saudi Arabia). But in our case – especially in England – this has traditionally been regarded as a badge of honour.

In his Reflections on the Revolution in France, Edmund Burke gave this national ethos its founding text. “It has been the misfortune (not as these gentlemen think it, the glory) of the age,” he wrote, “that everything is to be discussed, as if the constitution were to be always a subject rather of altercation than enjoyment.”

With this spirit of “enjoyment” in mind, it is often suggested that the British constitution can be distilled to a mere eight words: “what the Queen-in-Parliament enacts is law”. The government interacts with the legislature via the Cabinet: what Walter Bagehot called “a combining committee, – a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state.” We are a nation of thoughtful Whigs, not reckless radicals. Or so we are told by inherited orthodoxy.

Yet that orthodoxy is now propping up a dangerous complacency. The institutional arrangements of the UK are a mess. They are subject to extraordinary new pressures that have significantly raised the stakes, and seriously weakened the assumption that a written constitution is simply unnecessary.

Strictly speaking, our constitution is “un-codified” rather than “unwritten”. It is embedded, in disaggregated form, in numerous statutes, legal precedents, parliamentary conventions and assumptions about the relationship between (for instance) the monarch and her government, or parliament and the judiciary, or Whitehall and local government.

What is too rarely acknowledged is that, since 1997, the old evolutionary model has been arbitrarily abandoned in favour of serial change.

This change has been hectic and disorganised: devolution to Scotland, Wales, Northern Ireland, and London; the Human Rights Act of 1998, which entrenched in domestic law the European Convention on Human Rights; the Freedom of Information Act (2000); the Political Parties, Elections and Referendums Act (2000); the establishment of the Supreme Court in 2009; and the Fixed Terms Parliament Act (2011): all these, and other measures like them, amount to a huge structural alteration in the way we are governed.

Yet there has been no over-arching philosophy, no set of governing principles. Consider how blithely the Fixed Terms Parliament Act was passed into law, with little serious consideration of its profound implications for our democratic system, including the capacity of MPs to bring down a disastrous government and force a general election. Look, too, at the conspicuous failure of the Blair, Brown and Cameron governments to resolve the future of the House of Lords – a reform which, according to Asquith, “brooks no delay”. That was in 1912.

Even more significant is the cultural shift that is fundamentally changing the way in which power is distributed and managed. Our present constitutional arrangements are the legacy of the rules-based world of the post-war era, in which the inter-connection of institutions was all that mattered.

But the hurricane of digitalisation has battered the assumptions of that world, and tested them to destruction (the law that regulates referendums, for instance, was passed four years before Facebook was invented – which means that it is useless). Networks now challenge institutions; social media platforms weaponise ferocious cultural forces that were previously contained – with occasional exceptions – by regular party politics and electoral contests.

In previous arguments about the case for a written constitution, it was the tug of war between the courts and Parliament that predominated. In 2019, the more urgent conflict is between parliamentary and popular sovereignty.

Liam Fox, the International Trade Secretary, has posed the question this way: “Is government the servant of parliament or is government the servant of the people?” In March, Jacob Rees-Mogg – who aspires to be Chancellor in a Boris Johnson government – urged Theresa May to suspend parliament so she could force through Brexit.

The notion that sovereignty resides in the “people”, seductive as it may sound, is a familiar staging-post on the road to authoritarianism (and worse). That such rhetoric is now being deployed without embarrassment at the apex of British political life should be a serious wake-up call.

The case for a constitutional convention or – as Professor Vernon Bogdanor argued at our ThinkIn – a Royal Commission grows ever more persuasive.

There will be people who dread the process: it will be long and arcane, sapping energy from more pressing problems. There will be others who fear opening the Pandora’s box: will a discussion of the Constitution throw open the question of the monarchy or the place of the Church of England?

The alternatives, though, are unequal to the moment. Those who call for more civics lessons so that we better understand our constitutional arrangements, haven’t been to a civics lesson. Others who say that Brexit will recede into history may be right, but they are wrong to think that Britain’s political problems will be fixed if and when a deal is done.

The idea of a Royal Commission that travels the country, that engages with people in all walks of life on the rules that govern the powerful and our rights as citizens should not be feared.

In almost every debate today, we are stalked by a sense of impotence; of a power gap. The way we live is being determined beyond our control. We are not so much living in a world post-truth as post-trust. Muddling along and hoping things improve is not enough. If we want to restore trust in our political system, if we want to rebuild a public square, if we want to win the global argument between democracy and the authoritarianism that’s on the rise, then we need to invest in the rights, responsibilities and rules that govern us.

We no longer enjoy the luxury of past generations, who were so confident that the uncodified constitution was a reliable immune system. We must return to first principles.

The call for a written constitution is not one that we make lightly. We know that many people will think: Really? Now? But Tortoise is a new news organisation. Like all news organisations, we react to what we are against. Like the good ones, we also aim to set out what we are for. We believe the near-total collapse of public trust in our system has been gravely compounded by the shambles of Brexit and the infection of the mainstream by ever-nastier forms of populism.

There is no glib answer to this crisis, no light-switch to be flicked. But we don’t want to look at the political mess and shrug or point fingers, tune out or hope for the best. We can meet the problem with action. The writing of a constitution will itself be an exercise in radical optimism. There is much heavy lifting ahead, much stamina required. There are many hard questions to face. But let us begin.


For & Against

“Those who say that an unwritten constitution allows democratic demand to shape the constitutional arrangements of the state, rather than vesting the power to interpret them in a Supreme Court, likewise miss an important point – that if constitutional change requires a supermajority in Parliament, or in a referendum, the change will be truly democratic, and will avoid the dangers pointed out by J.S. Mill as implicit in crude majoritarianism.”

A C Grayling, in Constitution in Crisis: The New Putney Debates (2017), ed. Denis Galligan

“No written constitution or Bill of Rights can push a society beyond the limits of its prevailing world-view (which is why the US Constitution did not abolish slavery or introduce votes for women overnight, as its detractors claim it ought to have). But it can animate that society with a sense of what is right and instil into government an understanding of the proper limits to the exercise of power; above all, it can inform the conversation of politics with a sense of dispersed responsibility.”

Ferdinand Mount, The British Constitution Now: Recovery or Decline? (1992)

“The post-colonial Americans’ constitutional convention was adorned by the presence of a large proportion of America’s political and intellectual luminaries. George Washington presided, and James Madison, Alexander Hamilton and Benjamin Franklin were among those present…. Without meaning to be rude, one can venture the thought that it is a little hard to imagine a UK constitutional convention today attracting men and women of comparable stature.”

Anthony King, The British Constitution (2007)

“Custom is the first check on tyranny; that fixed routine of social life at which modern innovations chafe, and by which modern improvement is impeded, is the primitive check on base power.”

Walter Bagehot, The English Constitution (1867)
Further reading