The politics of a written constitution for Britain

by Cristina Parau,  Associate Member and Research Fellow at Wolfson College, Oxford.

The first issue concerning a written constitution for Britain is: Where is the demand coming from?

Contemporary organised demand for constitutional reform traces back to the late 1970s, yet even before then, isolated intellectuals – ‘a voice crying in the wilderness’ – had tried to make an issue out of a written constitution for Britain that would include a Bill of Rights.

The term ‘norm entrepreneur’ is sometimes used in politics and international relations to refer to pioneers who, dissatisfied with the status quo, take action to change it at their own initiative. They may make an impression on the world even if their personal cause ultimately fails. A norm entrepreneur is typically an individual, but may be a collective actor as well.

Charter 88 was probably the single most influential collective norm entrepreneur to have advocated a written constitution in contemporary Britain. Founded in the late 1980s, it became the most prominent intellectual force for constitutional revision under the Blair Government. A Bill of Rights was the centrepiece of the proposal, Charter 88’s solution to what they perceived to be a drift toward authoritarianism after Margaret Thatcher was re-elected for a third term in 1987.

Its supporters campaigned vigorously to overhaul the constitutional monarchy and replace it with a republic, never wittingly taking inspiration from the USA, however, which Britain’s Left intelligentsia tends to despise. In an interview on condition of anonymity, one of the founders of Charter 88 said:

The American constitution is nearly as bad as the British constitution. It is racist. The Senate is built-in racial … is a white supremacist institution. By giving equal representation to Wyoming or [the] Dakota[s] … you are building-in … a massive white majority and a rural one … The Supreme Court has now become politicised by its appointments and the presidency is in a kind of quasi-imperial position. The American constitution is in no way an example for us … Britain is now … mentally, and in very many other ways subservient to America, to American television because of the language. So people think that to have a constitution is to be like America. Whereas I think that to have a constitution is to become European. A much better constitution for me … is the German constitution with a strong constitutional court, a strong parliamentary system … very strong decentralisation … Germany has a serious constitutional culture. (Charter 88 Founding Member 2014)

This response was in fact an implicit admission of the power of the American influence, from which some of the thought leaders of Charter 88 were striving to break free. They believed they were following a Continental (specifically German) model by featuring an activist constitutional court – a judicialisation of public policy which would not have escaped generically the American influence. As a matter of fact, the German constitutional review model, as conceived by Austrian jurist Hans Kelsen in the 1920s, was expressly based on American judicial practice. American influence has been widely received in Europe, but has also been transformed by deep European culture.

At a partisan level, also during the Thatcher era, the cause of constitutional reform was taken up by the SDP-Liberal Alliance made up of the Social Democratic Party, which had split off from the Labour Party in 1981, and the more established Liberal Party.1  It was the Liberal Party, a forerunner of today’s Liberal Democrats, that was most interested in revision, as the first-past-the-post electoral system produced such disproportionate Parliamentary majorities out of mere electoral pluralities as to render third parties’ situation hopeless. An inkling of the movement for constitutional reform at the practical level of electoral politics may be traced to the Joint Commission on the Constitution set up in 1981 by the Alliance, with the purpose to ‘examine the policies for reform of the British constitution, in particular of the electoral system … that our parties should present together at the next election for implementation’ (Joint Liberal/SDP Alliance Commission on Constitutional Reform 1983: 1). In addition to electoral reform, the Joint Commission proposed to reform both Houses of Parliament; a decentralisation to include regional devolution; a Bill of Rights; reforms of administrative law; and much greater freedom of information. 

Labour’s long road

Except for devolution, the Labour majority throughout the 1960s and 1970s was generally indifferent or hostile to constitutional reform. The Labour Party dominated British politics ideologically, if not always electorally, in the post-war period. Their welfare-state consensus lasted until the fall of the Callaghan Government and the election of Margaret Thatcher in 1979. During this long ascendancy, they had many opportunities to revise the constitution, yet as late as the late 1970s Labour rejected the idea as constraining their own power to carry through an agenda of state expansion and social change (Bogdanor 2009). Old Labour believed in ‘the power of the people’ expressed through Parliament, and their Marxist background made them sceptical of an updated Bill of Rights. Aside from devolution, no constitutional reform agenda had majority Labour Party backing before the 1990s.

The advocates of a written constitution got their biggest chance with the advent of New Labour. By the early 1990s Labour had been out of power for more than a decade. Desperate for fresh ideas as way back into power, the New Labour leadership cottoned onto Charter 88’s shiny new agenda of constitutional change. John Smith, New Labour’s original leader was persuaded to adopt ‘a new constitutional settlement’ as a campaigning issue, although he was not keen on reducing it to a master document (‘written’). A founder of Charter 88 who knew John Smith personally, interviewed on condition of anonymity, said this much:

There was a great deal of energy behind a programme of constitutional change and we [Charter 88] … put it all together and said ‘we need a new constitutional settlement’ … we persuaded Labour, assisted by the Liberal Democrats, and John Smith then came out for a new settlement (not for a written constitution which he was uncertain of) … that would include a Bill of Rights, which he was very much in favour of, personally.

New Labour was also influenced by electoral calculations in which the Liberal Democrats featured prominently. It may have been Lib Dem influence that kept Labour open to the new constitutional settlement agenda after John Smith’s premature death. Labour had had a history of collaboration with the forerunners of the Liberal Democrat Party. For instance, they struck a bargain with the Liberal Party (the so-called ‘Lib-Lab Pact’) in a desperate bid to cling to power in 1977, by the terms of which Labour agreed to take on board certain policy proposals favoured by the Liberals, including electoral reform. The Pact introduced Liberal ideas into Labour’s ideological repertory, although this would surely have made little impact, but for the subsequent demise of the post-War pro-Labour consensus, and the long and much-resented Tory ‘interregnum’ that ensued. This apparently forced at least certain elements of the Labour Party to be more receptive to the constitutional thinking of the Liberal-Democrats (Ashdown 2000-2002). It might even be said that some of New Labour’s constitutional revisions in the late 1990s had roots in Liberal Party discontent.

The constitutional change agenda gained momentum after the 1997 Labour landslide, when important changes were passed, like devolution in Scotland, Wales and Northern Ireland, and the Human Rights Act that incorporated the European Convention on Human Rights into British law. After that, however, the reformist vision lost steam, meandering into ill-conceived half-measures like the House of Lords reform, which seemed much more like reforming the Tory Party out of its dominion of the Lords. Electoral reform to supersede first-past-the-post was never undertaken. There were other, lesser reforms (the constitutional status of which might be disputed), like the Political Parties, Elections and Referendums Act 2000, which regulated political donations and the conduct of referendums.

In hindsight it is clear enough why the Blair Government, focussed on disempowering their arch-rivals and on their own correlative self-empowerment, began to cool to the constitutional change agenda once the part that benefitted themselves had been accomplished. They were secure enough in their majority to afford to ignore both Charter 88 and the Lib Dems, and to revert to their basic constitutional traditionalism. A written constitution for Britain is something that neither the New Labour nor any other Parliament has ever really wanted.

What the Blair Government did to the House of Lords is illustrative: after abolishing nearly all the (overwhelmingly Conservative) hereditary peers and deposing the Lord Chancellor as head of the judiciary, they have treated the Lords to wave upon wave of dubious appointments. Blair introduced 374 new peers in order to ‘balance’ the Conservative majority. In return, the Conservative-Liberal Democrat Coalition have appointed 160 peers so far. This manner of proceeding resembles US-style ‘court packing’; only worse, as nothing prevents the House being packed with campaign finance bundlers and other partisan hacks of the kind who in the past had been ‘gruntled’ with minor ambassadorial posts. This is exactly what appears to have happened.

If PM Blair never entertained the idea of a written constitution, his successor, Gordon Brown, is remembered, contrastingly, for his commitment to it (Kelly 2014). In Brown’s own words:

The question of a written constitution … [is] an issue on which I hope all parties can work together in a spirit of partnership and patriotism. … I have asked the Cabinet Secretary to lead work to consolidate the existing unwritten, piecemeal conventions that government much of the way central government operates under our existing constitution into a single written document … And if we are to decide to have a written constitution, the time for its completion should be the 800th anniversary of the signing of the Magna Carta in Runnymede in 1215. (Brown 2010)

Brown made a start toward a written constitution, as witness the Cabinet Manual that codified Executive practice. But his efforts proved abortive when the financial crisis of 2007 supervened. This codification, however, was no more of a step toward a constitution qua master document than the many other piecemeal codifications that had been enacted down through the centuries and which inspired Blackstone to speak of the British constitutions in the plural.

After Brown, demand for a written constitution has come exclusively from the Liberal Democrat Party. It may be the dream of a majority of them, but as perennial also-rans they have never before been a decisive political force in British politics. Now that they are in decline, there remains no significant organised demand for a change of this magnitude.

A renewed push for reform 

Nevertheless, there appears to be some residual support for it within the Labour Party.

Graham Allen, the Chair of the Political and Constitutional Reform Select Committee, set up by the House of Commons in 2010 with an open-ended remit to ‘consider political and constitutional reform’ (Political and Constitutional Reform Committee 2010b), is a Labour Party MP who has been described as a ‘long-term champion of a written constitution’ (Atkins 2014). Allen seems to have taken the ball and run with it: the Committee has inquired into a variety of issues that seemed in need of reform, including constitutional codification. In the words of one Committee member, a written constitution is ‘one of the great missions in life of the chairman of the committee, and one has to keep him happy and support him in his dream, however deluded we might think he is’ (Member of the Political and Constitutional Reform Committee 2014).

Surely this cannot be the whole story, however. It is far from obvious why Parliament should have indulged in his crotchets one eccentric backbencher in opposition to the Government of the day. (Would the European Parliament indulge Ukip’s Nigel Farage if he demanded a committee?) This is a puzzle that calls for deeper investigation.

The Committee’s efforts culminated with the publication of a report, A New Magna Carta? in July 2014, on which the Committee is currently carrying out a public consultation (Political and Constitutional Reform Committee 2014). A final report will be presented to the Cameron Government ahead of the 2015 general election. A New Magna Carta? is styled a ‘blueprint’ for achieving a written constitution, consisting of three alternative pathways or formats, which may also be regarded as successive stages (Political and Constitutional Reform Committee 2014). The report is framed such that the unwritten constitutional status quo is clearly disfavoured, arguments in favour of which are given only a little over three pages out of 423 (Political and Constitutional Reform Committee 2014: 24-8). To the objection that little is to say about doing nothing, one may point out that much more could have been said about the reasons why nothing ought to be done. Note also that the Committee’s inquiry leading up to A New Magna Carta? is titled ‘Mapping the Path to Codifying – or not Codifying – the UK’s Constitution’ (Political and Constitutional Reform Committee 2010a). The very form of words hints at a codifier’s agenda: the constitution is already uncodified; who needs a ‘map’ to stay the course? Lastly, the very existence of a Select Committee inquiring into a written constitution implies an intention to do just that.

Overcoming underwhelming interest

Several issues stand out as both important and interesting. The first is the usual lack of public demand for a written constitution:

We are as a nation notoriously uninterested in our constitution. The debate since the 1970s has been conducted primarily amongst the elite – politicians, academics, lawyers, judges and journalists. The people have, on the whole, been little interested, and perhaps even unaware of the wide-ranging nature of constitutional changes that have been introduced … during the 1997 election campaign, the British people were asked by the opinion research organisation, MORI, to rate the priority of various issues, they put constitutional issues 14th out of 14. Little had changed by the time of the 2001 general election despite the plethora of constitutional reforms in Blair’s first term. (Bogdanor 2009: 6)

Little has changed, indeed. The lack of any public demand and the elite-driven nature of the process is vividly captured in the words of a member of the Political and Constitutional Reform Committee:

I will not live to see the day when hordes of people will be marching down Whitehall with a banner saying ‘What do we want? A codified constitution.’ It is not an issue that’s grabbed the passions of the British people in any way … If you wrote an election leaflet that read ‘We want a written constitution for the United Kingdom’, you would probably get nil votes … I doubt if anyone would regard that as among their thirty top issues. There is absolutely nil demand for it, outside the universities and the political scientists who work on these things … public demand is non-existent. (Member of Parliament 2014)

The same could be surmised from the conduct and discourse of the Committee Chair himself, who recently chose to start up a ‘lively and passionate public debate’ on codification on the academic blog of the United Kingdom Constitutional Law Association – hardly likely to be read by any ‘public’ other than public law academics. If he had been addressing thousands of hearers in Hyde Park, one could concede some popular support; the fact that he should deem it advisable to kick off his campaign in academic obscurity implies that he knows this is his only audience.

An interesting phenomenon in all this is the seeming dormancy of the Conservative Party. One might have expected them to denounce A New Magna Carta? The explanation may lie in their coalition with the Liberal Democrats, for whom codification is a fetish. Had the Conservatives had a Parliamentary majority (or had formed a coalition with a certain party whose name shall go unmentioned), they might have found a way back to the status quo ante on at least (some of) the reforms that are practically reversible, viz. the House of Lords, the Human Rights Act, the Lord Chancellor’s jurisdiction over the judiciary. But the Conservatives are boxed-in by the very high priority Liberal Democrats give the issue, and by their dependency on them to form a governing majority. ‘Extinction’, in the lingo of behavioural psychology – meaning to omit to reinforce an offending behaviour until it goes extinct from the lack of reinforcement – may be a shrewd move. By avoiding confrontation and by making concessionary gestures to their Coalition partner, their strategy would appear to be to ‘hang the Liberal Democrats out to dry’; as realistically, the Conservative Party backbench would never pass a bill mandating a grand convention to write a brand new constitution from scratch.

Commenters on a first draft of this post have said that the foregoing analysis understates the instability of the status quo, and the relevance of this, the public or the Tories notwithstanding, for what the Political and Constitutional Committee has undertaken. The issue of Scottish independence is far from settled. Further devolution to Scotland is making waves in England and in the other nations of the UK. The UK’s position in the EU is also in question, which feeds back onto the issue of independence for Scotland. The existing electoral system, though confirmed in a vote in 2011, is struggling to give adequate expression to the range of party support in the nations of the UK.

Although the situation does not include a public keen for constructive change – there is no positive consensus on change in any particular direction – neither is it one of widespread happiness and trust in the existing system. This is part of the context of A New Magna Carta? Perhaps the members of the Political and Constitutional Reform Committee are anticipating a ‘constitutional moment’ and trying to shape the debate over how to handle it.

Misplaced priorities? 

Conceding the current instability – brought on, I would point out, by the reformers themselves – and that the risk to the Union seems to preclude a return to the status quo ante in most things, the partisans of reform have yet to even begin explaining why the public is so little interested in their nostrum. However implausible, the public may actually be smarter than the intelligentsia this time, in locating the source of the problem anywhere but in a lack of codification. One ought not to take it for granted that the British public’s disaffection and mistrust can be fixed up by institutional mechanics of the kind on offer. I would surmise that public dissatisfaction has more to do with the corruption one sees everywhere in Western politics, which in flagrante sells out the manifest self-interest of 99% to a hyper-rich <1%. This and not the unwrittenness of the constitution is what have fed people up.

A betrayal of the current enormity cannot possibly be solved by codification unless it addressed the problem of elite control of money and finance, and therewith electoral politics. Although certain elements in the constitutional reform movement criticise corporate power in general terms, no one has reduced the ideas floating about to the frame of a concrete settlement, or integrated it into any concrete agenda. ‪None of the elite organisations like Unlock Democracy or the UCL Constitution Unit have ever proposed anything as definite as the ‘Plan for the Establishment of a National Bank’ published posthumously so long ago as 1824 by the icon of laissez-faire capitalism, David Ricardo, who reasoned that the stock of money would be best originated by a public institution. In a letter dated 1823 he told Thomas Malthus:

I have been writing a few pages in favour of my project of a National Bank, with a view to prove that the nation would lose nothing in profits by abolishing the Bank of England, and that the sole effect of the change would be to transfer a part of the profits of the bank to the national treasury. (Ricardo 1823)

His vision was only very imperfectly realised in the belated 1946 Bank of England nationalisation. Today’s reformers, by and large, are talking past the real concerns of the people. If they really wanted a national movement and public support, they should be tackling the economic crisis head-on, following Ricardo’s example of creativity within capitalist realism.

As with devolution, rote solutions in search of a problem bring unintended, destabilising consequences. The worst of it might be to make the whole system even less democratic than it already is. If the key is to unlock democracy, should we not be perfecting our forms of Parliamentary representation — (election by sortition, for example) — in lieu of removing public policy all the farther away from the people whose consent is supposed to confer legitimacy? I fear this is what codification, and the judicialisation of politics it entails, will inevitably do.

The post first appeared on Politics in Spires, in the  Great Charter Convention series, hosted in collaboration with Open Democracy, IPPR and the University of Southampton

1. Thanks to Stuart White for his detailed and valuable feedback on this post.

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Bibliography

Ashdown, P. (2000-2002). The Ashdown Diaries. London: Penguin.

Atkins, M. (2014). A New Magna Carta for Britain? [Public Lecture]. Department of Politics and International Relations, University of Oxford. 6 November.

Bogdanor, V. (2009). The New British Constitution. Oxford: Hart.

Brown, G. (2010). Towards a New Politics. Retrieved from http://labourlist.org/2010/02/speech-by-gordon-brown-towards-a-new-politics/, 3 July 2013.

Charter 88 Founding Member (2014). Author interview. London. 15 January.

Joint Liberal/SDP Alliance Commission on Constitutional Reform (1983). Towards a new constitutional settlement: second report of the Joint Liberal/SDP Alliance Commission on Constitutional Reform. London: Poland Street Publications.

Kelly, S. (2014). Conservative Party. Author interview. London. 28 February.

Member of Parliament (2014). Labour Party. Author interview. London. 19 February.

Member of the Political and Constitutional Reform Committee (2014). Author interview. London. 10 February.

Political and Constitutional Reform Committee (2010a). Mapping the path to codifying – or not codifying – the UK’s Constitution. Retrieved from http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/inquiries/parliament-2010/mapping-the-path-to-codifying—or-not-codifying—the-uks-constitution/, 13 January 2014.

Political and Constitutional Reform Committee (2010b). Political and Constitutional Reform Committee – role Retrieved from http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/role/, 3 October 2014.

Political and Constitutional Reform Committee (2014) Political and Constitutional Reform – Second Report. A New Magna Carta? Retrieved from http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/463/46302.htm, 13 November 2014.

Ricardo, D. (1823) Letter to Thomas Malthus, 3 August. Retrieved from http://www.gutenberg.org/files/36345/36345-h/36345-h.htm, 5 February 2014.

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