Can I Get That in Writing?

dougcochran

Imagine that a group of well-meaning liberal democrats was planning to colonise a new planet.  Before setting off for their journey, imagine that these liberally-minded colonists took the to time decide amongst themselves the constitutional arrangements that would govern their affairs in the new world.

The colonists would have a range of choices to make: Would they draw up a bill of fundamental rights?  To what extent would they give the courts the power to strike down legislation?  How would they balance the powers of the legislature and the executive?

No doubt there would be a range of opinions, but it seems a safe conclusion that England’s constitution [1] would not be adopted as the model of an ideal democratic society.  To wit, is highly unlikely that our colonists would chose to establish:

  • A hereditary monarch, entirely without a democratic mandate, which has the right to appoint the prime minister, veto legislation, and exercise a wide array of prerogative powers.
  • A lower legislative house composed of 650 members, each elected with a plurality of the vote in a certain geographic constituency, with the result that a single party can gain an absolute majority with less than 36% of the popular vote. As the Labour Party did in 2005.
  • An entirely unelected second legislative house composed of a mixed bag of political appointees, bishops, and members of the nobility.
  • A judicial system almost exclusively dominated by wealthy white men which not only seeks to uphold the statutes of the legislature but gives binding legal force to many of its own previous decisions, even if those earlier decisions, themselves, have no basis in existing legislation.

Les også Øivind Bratberg om hvorfor Norge HAR noe å lære av den britiske grunnloven.

An absurd constitution
On paper, the English constitution is absurd, so it is perhaps fortunate that England’s constitution is not actually on paper at all.   If by a ‘constitution’, we refer to those principles by which an organisation is governed, then England has no written constitution.  Or, more correctly, the English constitution is not is not reducible to a single, written document but consists of an assortment of constitutional documents, (arguably) the constitutional conventions that describe the habitual use of powers by the institutions of government, and the common law.

In some way England’s common law legal system and unwritten constitution go hand-in-hand.

The common law system makes use of precedent, rather than codification to establish legal principles. It establishes legal principles inductively, with judges developing binding precedents, following past decisions, and making new law in novel cases with no obvious precedent.  In some way England’s common law legal system and unwritten constitution go hand-in-hand [2].  The foundation of England’s legal system is to start from concrete cases, and its constitution- in very large part- consists in the current and past behaviour of governmental officials and citizens who develop constitutional principles by habit and behaviour.

The Unwritten Constitutional Order
But how has it come to pass that England, one of the oldest nations in the world, is almost [3] unique among them in its lack of a written constitution?

For the last thousand years, England has been relatively free of foreign invasion, and there simply hasn’t been a need to ‘make a clean start’ following conquest, secession, or liberation.

The most obvious answer is that the English simply haven’t gotten around to it yet.  For the last thousand years, England has been relatively free of foreign invasion, and there simply hasn’t been a need to ‘make a clean start’ following conquest, secession, or liberation.

Equally, domestic political crises – for the most part [4] – have been managed by adaptation and compromise, rather than by abolishing the old order and starting again.  Magna Carta, the Bill of Rights, and the United Kingdom’s entry in the European Community represented constitutional change, but not constitutional revolution.  The flexibility of the constitution has rendered it able to absorb reformist pressures by concession and adaptation before they become demands for wholesale constitutional revolution.

The result of England’s constitutional flexibility has been a constitution that, for all its faults, actually functions reasonably well.   Even its critics would find it hard to argue that England’s constitutional order is actually as bad in practice as it undoubtedly is in theory.

Why Not Now?
But even if England can avoid codifying its constitution, is there any reason why it should keep shirking the task?

A codified constitution would clarify and render transparent the processes by which England is governed.  As one former member of Parliament has put it: the ‘unwritten and infinitely flexible nature of the British constitution’ entrenches the power of, ‘a political elite consisting of politicians, judges, generals, admirals, press barons, business supremos, and Oxbridge graduates’ [5].

It seems sheer common sense that England should join the vast majority of the world in codifying its constitution.

Indeed, the English constitution is a flexible one, but this flexibility comes at a cost.  While constitutional improvisation permits the government to accommodate the changing demands of contemporary society, it also places few reliable checks on new assertions of power. It is absolutely necessary that every constitutional order makes room for adjustments in the powers of the various institutions of the state, but an unwritten constitution means that such powers are liable to shift without public debate or even public recognition.

Moreover, a written constitution would have the advantage of resolving ambiguities in the current constitutional order and could spell out precisely the division of power between the various branches of government.  Constitutional change and reform could then be introduced deliberately and following open public debate. It seems sheer common sense that England should join the vast majority of the world in codifying its constitution.

Lack of constitutional appetite
The simple fact of the matter is that there isn’t much appetite for constitutional discussion in contemporary English political discourse.  Paradoxically, this is due in large part to the unpopularity of virtually all of England’s mainstream political parties, their leaders, and the business of democratic politics itself.

Any attempt to talk about – much less reform – England’s constitution is frequently met with populist point-scoring.

It is one of the great ironies of contemporary English politics that a widespread lack of trust in elected officials has sapped rather than strengthened the appetite of the English people for constitutional discourse.  After all, it is the much-despised political class who tend to champion constitutional causes, so any attempt to talk about – much less reform – England’s constitution is frequently met with populist point-scoring.

A good example came in July 2000 when William Hague, the Leader of the Opposition, moved a motion on parliamentary reform, which was sharply criticised by Prime Minister Blair on the grounds that it was a waste of parliamentary time [6]:

«He could have discussed jobs, the economy, schools, hospitals, or even crime.  I do not know whether people in his pubs and clubs are discussing pre-legislative scrutiny, but they are not in mine

Too much concern with constitutional affairs can get a politician labelled with the unfalsifiable epithet ‘out of touch’.  Another contemporary example came with the 2011 Alternative Voting Referendum, a proposed reform for elections to the House of Commons.  The Alternative Voting (or ‘AV’) proposal was to replace the ‘first-past-the-post’ system, whereby the winner of each parliamentary seat required only a plurality of the votes cast, with a system of transferrable preferences, designed to reduce the common action problem that made it hard for smaller parties to gain a foothold.  The referendum failed by a margin of more than 2-to-1 with the ‘No’ campaign successfully arguing that alternative voting was the sort of thing that politicians enjoyed talking about and that voting ‘no’ would be taken as a record of dissatisfaction with the current political elite, especially Deputy Prime Minister Nick Clegg.

Codification does not serve the powerful
Furthermore, there is an inherent difficulty with relying on those in power to promote constitutional codification; the ambiguity of the status quo usually works to their advantage.  For example: over the past three decades, the office of Prime Minister has become increasingly powerful, even at the expense of Parliament, but there is no obvious way to chart the growth of this steady accumulation of powers or to prevent those powers from further expanding.

A Prime Minister devoted to codifying the English constitution would need to be that rarest of all statesmen: one who seeks- and achieves- power only to sacrifice it.

Members of the opposition may complain of the tendency toward increasing-centralisation of government and they may bemoan the emasculation of Parliament, but they cannot easily say that the Prime Minister is behaving illegally, or even unconstitutionally, if only because they fully intend to make use of exactly such expanded powers when their turn to govern comes.

A Prime Minister devoted to codifying the English constitution would need to be that rarest of all statesmen: one who seeks- and achieves- power only to sacrifice it.

If there is to be a move toward codification, it will need to come from a groundswell of popular dissatisfaction with the constitutional status quo, but mainstream English politics lacks a coherent vision for a package of constitutional reforms of the sort that would go hand-in-hand with a move to codification.  England will not seek to write its constitution until it feels that it must.

Thus, the question of why England still lacks a written constitution is continually postponed, because – however much the English people may complain about the quality of their government – their complaints are rarely couched in constitutional language.  Thus, the English people respect ‘Parliament’, even though they are dissatisfied with those who occupy it; they profess respect for ‘the law’ even though they may feel alienated from the processes by which it is produced.

A Brief View From Scotland
By contrast, it is instructive to briefly consider recent moves for codification in England’s neighbour to the north.

In 1989, following the third successive victory of a Conservative government with little support in Scotland, the Scottish Constitutional Convention was founded.  Religious organisations, business groups, trade unions, Scottish MPs, and political parties came together to develop a framework for the devolution of powers to Scotland.  The ultimate result of the Convention’s work came in 1999 with the establishment of the first Scottish Parliament in 300 years.

The new Scotland will hold a new constitutional convention to produce a written constitution prior to establishment of the new Scottish state.

This coming September, Scotland will host a national referendum to determine whether or not it wishes to become an independent country.  The Scottish Government’s White Paper on Independence has made clear that, if the referendum returns a vote for independence, the new Scotland will hold a new constitutional convention to produce a written constitution prior to establishment of the new Scottish state.

The reason for Scotland’s move toward codification is that the Scottish people ,or at least a sizeable portion of them, have viewed their dissatisfaction with current political settlement in explicitly constitutional language and see the current constitutional settlement as being in need of root-and-branch reform.  Indeed, Scottish leaders routinely speak out against ‘Westminster rule’ and rail against the ability of English voters to steer the politics of the United Kingdom.

Their English counterparts may not be any more satisfied with the quality of governance they receive, but there is no consensus for a constitutional alternative.  When recent changes to the English constitution have been suggested, such as regional government in the Northeast, partially-electing the House of Lords, they have failed to capture the imagination of the electorate.  Moreover, these proposals have been portrayed, even by their supporters, as discrete reforms, rather than as components of an overarching strategy for widespread constitutional reform.  Until such a strategy emerges, England’s constitution is likely to remain unwritten.

The Lessons for Norway
If there is a lesson to be gleaned from England’s unwritten constitution, it must be that there are no definite criteria for a successful constitution.  The constitutional orders of the nations of the world must necessarily admit variety to reflect the unique histories, values, and traditions of the peoples they govern. England’s unwritten constitution is a historical accident, and it works- to the extent to which it does- only because England’s own unique conventions and history make it possible for it to do so.

Our liberal-minded colonists would not adopt England’s constitution, because their new society would not have the history, conventions, and values of England’s.  Our colonists have the opportunity that England has not had for centuries; the necessity to create a new state from scratch.  In Scotland’s case, such an opportunity may arise following this year’s independence referendum.  If so, it is an opportunity that should be eagerly grasped.

There is something to be learned from studying England’s unwritten constitution, but there is little to be gained from imitating it.

Norway’s own constitutional tradition is that of a written constitution, one of the world’s oldest in continuing existence, and one that commands the respect of the Norwegian people.  In the submission of this author, that is a tradition well worth preserving.  The project of modernising the language of Norway’s constitution is welcome.  The greater the divorce between the natural meaning of a text and its real-world application, the greater the extent to which governmental power is ‘up for grabs’ and the rule of law diminished.  England’s unwritten constitution is the most extreme case of such a phenomenon.

There is something to be learned from studying England’s unwritten constitution, but there is little to be gained from imitating it.

 


Notes:

[1] In this brief essay I will speak, deliberately, of ‘England’ rather than ‘the United Kingdom’.  Scotland has its own, separate constitutional order.

[2] Though states like Australia and the USA maintain a common law legal system alongside a written constitution.

[3] A handful of other nations are without a written constitution, notably Israel, Canada, and New Zealand.

[4] The most notable exception to this general rule is the English Civil War, which is also notable as the period of England’s first (and last) codified constitution.

[5] John McAllion, former MP for Dundee East.   Quoted in: ‘Scotland ‘in trouble’ if lax on constitution’.  By Conor Beaton.  The Targe  8 December 2013.

[6] Hansard Vol. 353, c.1079 (13 July 2000).  ‘The Constitution’ by Philip Norton, contained in Blair’s Britain edited by Anthony Seldon, page 121.