A response to ‘It’s time to re-write Britain’s constitution’
Over the past five years the actions of the British political class have led to huge constitutional uncertainty and a catalogue of political failures. However, it would be a mistake, as the above blog post seeks to do, to describe the current situation as the largest constitutional crisis in British history. It would also be a mistake to call for a codified constitution in response to the current state of political uncertainty, as this would not solve our problems and would exacerbate them in the long term.
On the surface, the case for a codified constitution appears clear. There is no question that our constitutional arrangements are in a state of flux. The Scottish independence vote in 2014 and the British vote on European Union membership in 2016 were moments of huge constitutional significance, and in each case the vote was decided by a small margin. These votes were not in any case legally binding, with the final decision on all questions reserved for Parliament, which can approve or repeal any bill with a majority of 50%+1.
This is because our so-called ‘constitutional’ statutes, those that dictate the workings of the state, have no higher status than ordinary law. They can simply be repealed (as the European Communities Act will inevitably be once we leave the European Union) or rendered ineffective by political forces (as with the Fixed Term Parliaments Act, which was overridden by over 2/3rds of MPs voting in favour of a General Election in 2017). Conventions, the rules and customs which regulate political actions, are at best advisory and are not applicable in a court of law. The Sewel Convention, which prevents the UK Parliament from legislating on devolved matters, was held not to have any force in law during the Article 50 case [hyperlink: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-press-summary.pdf] before the Supreme Court.
Should, then, we have a codified constitution? One where certain laws (the Parliament Acts, the European Communities Act, the Human Rights Act, the devolution legislation) are given a higher status, and are ‘entrenched’ (ie. Needing 2/3rds approval to be repealed or amended)? The answer here is no, because far from promoting stability, a written constitution would cause huge tensions to build in our political system without a mechanism for dealing with them effectively.
The problems we face in 2017 are by no means the first, or the largest, Britain’s constitution has faced in its history. Historical events vindicate the argument that the strength of the British constitution is in its flexibility. Looking first at conventions, these inherently political customs have enabled constitutional compromises to be developed in response to political crises. In the aftermath of the English Civil War and the ‘Glorious Revolution’ of 1688, a precedent was set whereby the Monarch would not refuse Royal Assent to Acts of Parliament. This convention, which is crucial to the notion of parliamentary sovereignty, today underpins our entire political system. In 1945, a radical Labour government faced the possibility of its proposals being hamstrung by a Conservative dominated House of Lords. If the Lords had blocked Labour’s manifesto, there would have been an immediate constitutional crisis. With the development of the Salisbury Convention, we now have a system whereby the Lords will not block any manifesto commitments. More recently, the Sewel Convention was an integral part of the Scottish devolution settlement and enabled de facto control over certain policy areas to rest entirely with the Scottish Parliament.
It is the ability of Conventions to adapt to changing circumstances which make them a valuable part of our constitution. Whilst it is possible to have conventions which co-exist alongside a codified constitution, most of our crucial ones (Royal Assent, the Salisbury Convention, the Sewel Convention) would likely be included in any codified document. This would restrict their further development, and the emergence of new Conventions to deal with new political challenges.
There is also great value in retaining the doctrine of Parliamentary Sovereignty, which holds that Parliament can make or repeal any law and can neither be bound by its predecessors nor bind its successors. This is incompatible with a codified constitution, where certain laws cannot be altered or require a high threshold in order to do so. Many people on the left have made the argument for a codified constitution in the past few years in part because they have lost the political argument on issues which they care about. European Union membership is a prime example of this, with commentators arguing for a retrospective 2/3rds threshold for a ‘Leave’ vote. There are two problems with this approach. Firstly, the constitution should not be used for partisan political purposes. It is a lazy way of avoiding difficult conversations and political arguments. Secondly, such a move would create more political uncertainty in the long run.
The strength of the current approach is its adaptability. Whilst many European regimes have collapsed under demands for universal rights and the extension of the voting franchise, Parliament passed a number of Acts which extended the franchise and prevented an upheaval of the system. Similarly, the Parliament Acts of 1911 and 1949 curbed the power of the House of Lords in response to constitutional crises, establishing the dominance of the House of Commons in law.
More recently, the European Communities Act, the Human Rights Act, both Scotland Acts, the Constitutional Reform Act and the triggering of Article 50 have all been introduced with simple majorities in Parliament. This approach enables the constitution to adapt to changing political and societal realities which a codified constitution would be slow to adapt to. For example the 1998 Scotland Act established the Scottish Parliament, who received additional powers in the 2016 Scotland Act as a result of political pressure arising from the referendum. European Union membership was essentially reversed by the same mechanism as it was granted, by a Parliament reflecting the popular will.
Our system compares favourably to the constitutions of other states. The original blog piece refers to the United States, and the longevity of their constitution. However, two points should be made. Firstly, the US constitution has been amended 27 times since its inception, and debates still dominate American politics today. Secondly, it is an outlier. The average lifespan of a national constitution since 1789 has been 17 years [hyperlink: http://www.law.uchicago.edu/alumni/magazine/lifespan]. Whilst our constitution creates a degree of political uncertainty, its adaptability to changing circumstances is perhaps its biggest asset. We should resist codification and allow it to continue to develop organically.
Sam Bumby is a Young Fabians member and secretary of the Law network. Follow him on Twitter at @sbumby