In a recent radio programme, it was suggested that in the nineteenth century, while many other countries were adopting formal constitutions, people in England were so proud of Magna Carta as a sort of proto-constitution that they thought that Britain did not need anything else.
The speculation prior to the election about what might have happened if the result had been a hung parliament highlights the unsatisfactory nature of the UK’s uncodified constitution, key parts of which are are mere conventions. What happens if there is disagreement over conventions which have somehow developed over the years? How long does does it take for ‘what usually happens’ to mutate into a definite convention? How can a convention be enforced, if those in power choose to ignore it?
One can turn to the Cabinet Manual for guidance and a review of existing practice, but that is all; it does not necessarily provide hard and fast rules. For example, the final sentence of section 2.10 is “It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.” At the end of section 2.19 it states “The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.” Note the use of ‘expected’ rather than ‘required’.
The office of Prime Minister was not originally defined by any law; indeed, no decision was ever taken that the UK should have such a creature. At the start of the 18th century the monarch, as the head of the government, appointed a number of Cabinet ministers, who were answerable to the monarch, not to one of their own number. When George I became king, he initially attended Cabinet meetings but stopped, largely because he could not speak English. In 1721, following his successful handling of the crisis caused by the collapse of the South Sea Company, Sir Robert Walpole was appointed as First Lord of the Treasury, Chancellor of the Exchequer, and Leader of the House of Commons, and became, in retrospect, Britain’s first Prime Minister. However, the term ‘Prime Minister’ was initially used only unofficially and in a rather sarcastic way, and Walpole and other 18th century Prime Ministers rejected it. The first official use of the term was in 1878 when Disraeli signed a treaty as Prime Minister. Eventually the Ministers of the Crown Act 1937 gave legal recognition to the position of Prime Minister, as opposed to the office of First Lord of the Treasury, with which it has always been linked.
Initially it was the monarch who chose the Prime Minister, but a convention developed that the Prime Minister should be someone who can command the support of a majority in the House of Commons, and thus usually the leader of the largest party in the Commons. As the role of the Prime Minister developed, power gradually transferred from the monarch to the Prime Minister. The royal prerogatives, defined in the constitutional settlement that followed the Glorious Revolution of 1688 and still mostly formally vested in the monarch, are in reality exercised by the Prime Minister; theoretically, the Prime Minister advises the monarch and the monarch, according to yet another convention, always accepts that advice.
Given the extent of the powers which have become attached to the position of Prime Minister, can it be right that the question of who becomes Prime Minister in the event of a hung parliament can be decided on the basis of mere conventions? Is it reasonable to allow the party of government to change its leader, and thus the Prime Minister, in the middle of a Parliament without the approval of the electorate as a whole? Should some alternative arrangement be devised, whereby the electorate as a whole can decide specifically who should become Prime Minister, or perhaps President? At present, one vote every five years is all the ordinary voter gets with which to indicate their choice of MP for their constituency, party of government (with all its policies) and Prime Minister, as a package deal.
The Tories are proposing to repeal the Human Rights Act. The fact that they may well be able to do so, in spite of having been elected by not a lot more than a third of those who voted, and by less than a quarter of the electorate, points to another major flaw in the UK’s uncodified constitution. Although some Acts of Parliament, such as the Human Rights Act, may be considered as parts of the constitution, they have no special status, and can be amended or repealed like any other pieces of legislation, by simple majority votes in both Houses of Parliament.
With a good codified constitution, it should not be possible for Parliament to modify any part of the constitution. That privilege should be reserved to the electorate as a whole, who should be able to ratify or reject any proposed changes to the constitution in a referendum. While there have been occasional referendums in the UK, the cynical view might be that these are only held when the UK Government is hoping that the proposed change will be rejected (e.g. reform of the electoral system and Scottish independence); the Fixed Term Parliaments Act (2011) is clearly of constitutional importance but there was no question of a referendum being held to approve that, or to ask whether the interval between elections should be reduced to 4 years, or even to 3 years as in Australia.
The UK is in dire need of a complete constitutional overhaul. Changes are needed to the electoral system, to end the unjust ‘first past the post’ system which tends to freeze out smaller parties and to make the votes of those who live in ‘safe’ constituencies worthless. The House of Lords needs to reformed or abolished, perhaps along with the monarchy. Some kind of federal system is needed to accommodate increased devolution. In short, the UK desperately needs a coherent written constitution. However, I do not believe for one moment that this will happen. England is too (small ‘c’) conservative and too fond of archaic traditions and rituals. Above all, the present system suits the Establishment. For example, it is very unlikely that a government which has achieved an overall majority with just under 37% of the vote will want to change the voting system. All we can expect is some tinkering here and there, which may may make an already messy system even messier (e.g. devolution of powers in England to some cities, rather than all regions) or replace existing problems with new ones (e.g. EVEL ).
The only realistic way in which the people of Scotland can gain the benefits of a coherent, well designed constitution, which will promote such ideals as democracy and human rights, is through independence.
(My first ‘Constitutional Thoughts’ were posted on this site on the 7th of April last year.)