Is the UK Constitution Worth the Paper It Is Written On?

I believe that the British state is an institution which is deeply flawed and in dire need of major constitutional reforms, but that there is no prospect of such reforms happening in the foreseeable future. There has been, and will continue to be, tinkering with constitutional issues, with the introduction of EVEL and possible changes as a result Tory ire at being (slightly) thwarted by the House of Lords. (My guess is that Cameron will settle for creating as many new Tory peers as he can get away with.) However, there is no sign of any willingness to to tackle the really big problem with the constitution, namely that it could be argued that it does not exist, or at least not in any well-defined form.

It is often said that the UK does not have a written constitution, but this is not completely true. A more precise statement is that the UK does not have a codified constitution; there is no single document which sets out such important matters as how the country is to be governed and the rights of its citizens. In this respect, the UK is very unusual.

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed… When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution… By contrast to codified constitutions. uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources: constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays; together these constitute the British constitutional law. (en.wikipedia.org/wiki/Constitution)

I believe that there are three major problems which arise from the uncodified nature of the UK’s constitution. The first is the inclusion within it of conventions which have somehow developed over the centuries. A convention is like a gentlemen’s agreement, or a voluntary code of conduct; it is useful just as long as everyone involved abides by it, even if they only do so for fear of the damage to their reputation should they not do so.

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference, is that, “They are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules.” More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can “crystallize” into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying the convention. This principle is regarded as authoritative in a number of other jurisdictions, including the UK. (en.wikipedia.org/wiki/Constitutional_convention_%28political_custom%29)

One significant convention is that the monarch always gives the royal assent to any bill which has been passed by Parliament. The last bill to be refused royal assent was one to arm the Scottish militia, which Queen Anne refused to sign in 1708. Yet legally the Queen could still veto legislation by withholding assent (with the formula “La Reyne s’avisera”). If her successor is faced with a bill which he strongly disagrees with, will he submit to the convention, or will he risk provoking a constitutional crisis by responding “Le Roy s’avisera”?

A second disadvantage of the UK’s uncodified constitution is that it is quite difficult to know exactly what it really is. There are some Acts of Parliament which clearly form part of the constitution, one of the most important being the Bill of Rights 1689.

The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It sets out certain rights of individuals including the prohibition of cruel and unusual punishment… [T]he Bill of Rights is further accompanied by Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution. A separate but similar document, the Claim of Right Act 1689, applies in Scotland. (en.wikipedia.org/wiki/Bill_of_Rights_1689)

Obviously there are other acts which might be considered as part of the constitution, such as the Fixed Term Parliaments Act 2011, the numerous Representation of the People Acts and Reform Acts, and of course the infamous Acts of Union. However, even where an Act of Parliament contains some matters of constitutional importance, it may also contain provisions which are clearly not relevant to the constitution, or have been superceded by later legislation, or simply rendered obsolete by changing circumstances. Add in assorted (unenforceable) conventions, and the result is a constitution whose boundaries are undefined.

The third problem is by far the most serious one.

The presence or lack of entrenchment is a fundamental feature of constitutions. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws, but can only be amended by a different and more onerous procedure… Entrenchment is an inherent feature in most codified constitutions. A codified constitution will incorporate the rules which must be followed for the constitution itself to be changed… [T]he UK constitution is an example of a constitution that is not entrenched (or codified)… In the UK, for example laws which modify written or unwritten provisions of the constitution are passed on a simple majority in Parliament. No special “constitutional amendment” procedure is required… Several rights that in another state might be guaranteed by constitution have indeed been abolished or modified by the British parliament in the early 21st century, including the unconditional right to trial by jury, the right to silence without prejudicial inference, permissible detention before a charge is made extended from 24 hours to 42 days, and the right not to be tried twice for the same offence. (en.wikipedia.org/wiki/Constitution#Entrenchment)

In the UK, sovereignty is vested in ‘the Crown in Parliament’, which in practice means that Parliament rules supreme, and the people are subjects rather than citizens. What passes for a constitution provides only the flimsiest of protection from any government which chooses to abuse their powers.

A government with a majority in both Houses of Parliament can change the constitution by passing legislation or even by amending Parliamentary standing orders. There is no requirement for changes to be approved by the electorate, or even for there to be any meaningful public consultation. The Fixed Term Parliaments Act 2011 was passed quietly, with little attention from the media or public debate that I can recall, and yet it eroded democracy by decreasing the frequency of general elections. (In the period from 1979 to 2010, the average time between general elections was less than 4 1/2 years, while now it is to be 5 years unless a government loses a no confidence vote.)

I believe that, although democracy does not guarantee good government, alternative systems are worse and almost guarantee bad government. It follows that the more democracy we have, the better. In the UK, there is nowhere near as much democracy as there could be – we have the unelected Lords, and we are rarely given the opportunity to participate in an important decision through a referendum. An increase of a few months in the interval between elections may not be a major change, but it is a step in the wrong direction.

A well-chosen codified constitution, which requires approval for any changes through a referendum, puts sovereignty in the hands of the electorate, and lets a country’s citizens put limits on what its government can do. It has the potential to protect democracy, although it is not infallible. The best constitution can be wrecked by a military coup or a government ruthless enough to be undeterrred by the illegality of its actions. Democracy can even betray itself, as it did in Germany in 1933 when Hitler was voted into power. However, lack of a proper codified, entrenched constitution makes it much easier for the government to nibble away at democracy, human rights and the rule of law, if it is acting on behalf of a small number of very rich (and hence very powerful) people such as those at the heart of the British Establishment. I fear that the UK is slowly moving towards corporate fascism. For some time now, democracy in the UK has been ineffectual; the occasional elections have changed little because since the Blairite takeover of the Labour party there has been little to choose beteween the only two parties with any chance of forming a government at Westminster.

Perhaps Jeremy Corbyn will triumph over the Blairites, revive the fortunes of the Labour party in England, and in 2020 lead a genuinely left of centre party to victory. Perhaps the Trident programme will be scrapped, much of the nastier Tory legislation repealed, railways and energy companies taken back into public ownership, privatisation of the NHS in England reversed, the banks regulated to stop them gambling recklessly with other peoples’ money. But if this happens, it will indeed be a miracle; the Establishment will fight tooth and nail to neutralise Corbyn. Even if that miracle happens, there is no reason to think that a proper UK constitution will be one of the consequences. The present constitutional ‘flexibility’ suits the Establishment.

The relative importance of the various reasons why I support Scottish independence have changed over time. Now the main one is that I am deeply pessimistic about the future of the UK; Scotland can and should break free from the dystopian wreck that the UK is becoming, and demostrate to the people of England that there is a better alternative to anything that the Tories or the Blairites can offer.

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