Transcript for Sh 36e

Well, you and I have arrived at the very last episode of the Constitution and law series; it’s been something of a marathon, has it not, I hope you are not feeling too exhausted, I know I’m feeling a little weak, but am in an advanced course of toast and marmalade, and feeling confident of a full recovery.

Forgive me, I have two things to do before we start the episode proper. One is a funny tale, and the other by way of apology really, Let’s get the apology out of the way. In the History of Scotland we are coming to the Scottish Revolution. Now I had a sort of outline understanding of the Scottish revolution; partly at least because the English Civil Wars are incomprehensible without understanding Scotland and Ireland, and indeed there is a line of thought that if it hadn’t been for the Scots and the Irish, England would have continued to groan under Caroline tyranny. We will have that debate, but in the words or Aragorn, this is not that day. Anyway, I’ve spent a good deal more time on the detail, and it occurs to me that I should really have spent some time talking about the impact the actions taken by the Scots must have had on the English, quite in addition to the ideas of resistance theory. The two groups of radicals were clearly in communication early on; many of the actions taken by the Scots were mirrored later by the English; convening a parliament without the authority of the king, instituting regular parliaments, even the covenant and the form of national oath taking. Obviously there are many differences between the two, but they feed into a shared tradition.

The other one is a lovely tale from Phil, who put a comment on the website; thank you Phil. It falls, from Phil’s point of view into one of those stories that really should be true, but which those fun suckers known as proper historians have consigned to the compost heap along with the rough end of the pineapple from yesterdays pineapple and lime risotto. So, let me take you to The House of Lords, and the vote on the Habeas Corpus Act in 1679. The debate is all done, it’s time for people to vote and the tellers are counting as the division takes place. One of the tellers for aye made a fat joke, for which I apologise obviously, but these are different time. One of the tellers was Lord Norris. Let Gilbert Burnet, a Scottish Philosopher and Historian, take up the story

‘Lord Norris, being a man subject to vapours, was not at all times attentive to what he was doing: so, a very fat lord coming in, Lord Grey counted him as ten, as a jest at first: but seeing Lord Norris had not observed it, he went on with this misreckoning of ten: so it was reported that they that were for the Bill were in the majority, though indeed it went for the other side: and by this means the Bill passed.”

Well there you go, if true, on such feeble foundations stand our fundamental liberties. I think proper historians quite rightly rather poo poo the story though.

Now you will be relieved to know we can get on with it, now I have stopped rabbiting. One of the things that often comes up in conversations about the British constitution is representation and democracy, and it is the move to democracy and the consolidation of a constitutional monarchy that we are going to talk about how. I would like to start though by making myself potentially slightly unpopular by warning against the desire to see constitutional development as the righteous march to universal suffrage; not that I am arguing universal suffrage is a bad thing, far from it, but it is easy to assume that until it existed, that country was intrinsically repressive; and most certainly Britain, for example was at best an oligarchy during the 18th century, the idea of a democracy, or universal suffrage shall we say, was laughed at. Surely you jest sire? It’s also unlikely that at any level of society there were great demands for universal suffrage, people like Thomas Rainsborough were very rare – even the levellers ‘Agreement of the People’ included voting on the basis of property holding, the same applies to the US for example, and even the French Republic, though initially proposing universal male suffrage, soon turned away from the idea.  So the idea of the mass of people desperately praying for the vote takes a long time to come – society was very structured and hierarchical, universal suffrage didn’t necessarily fit into that model of how society should be organised. Social elites of all kinds believed fully in their right and duty to represent the people in their communities; and usually, so did their communities. There is the danger, I am saying of what C S Lewis called Chronological Snobbery – the idea that people in the past were just a bit rubbish and were doing it all wrong.

None the less, by the 1820s pressure for reform, including the franchise was growing, and despite continued repression popular radical protest continued – the Peterloo Massacre and Scottish Radical war were part of this and support was also growing for Catholic emancipation, driven at least in part by the Irish Lawyer Daniel O’Connell. In 1829, in the teeth of enormous Tory resistance, Catholic Emancipation was passed. Gone were the days of the later Stuarts when the monarch was all for toleration and sympathetic towards Catholic; George IV was desperate to see the bill fail, saw it as contrary to his coronation oath, and gave out all sorts of excuses and tantrums, and threats of abdication. But eventually he signed. As with so much in the British Constitution its hard to tie down exactly when the idea of royal assent to statute became a dead letter, in the sense that the monarch really had an option to sign or not; but the last time it had been done was 120 years before by Queen Anne, and George simply did not dare. By the 1860s Walter Bagehot could write that the monarch no longer had a right of veto.

As agitation grew, it became clear that reform of the electoral system was a necessity, and the result was the Great Reform Act of 1832. It was a pig to get past the Tory backwoodsmen who were horrified at the extension of the franchise and what they saw as further dilution of the power of the crown. And so they blocked it, and blocked it, and the country went potty with protest and people really began to worry there’d a wholesale insurrection. And so we get a new tradition which stays with us – the government dissolved parliament, and called an election to get the mandate of the people. Which they duly gained. Tory peers in the Lords threatened to vote it down nonetheless, until threatened with the Queen Anne solution of appointing 120 new peers; and so they caved, and the Great Reform Bill passed. It is one of those things which every school child knows. Or at least they did, I am no longer a reliable representative of the school child experience.

One of my cardinal rules in life is that low expectations provide the answers to a happy life. Slightly tongue in cheek I have to say, but the Great Reform Act does take the alternative approach with its Great soubriquet. I mean if you are going to be called great, being even reasonably cool is simply not going to hack it. And at first glance the Great Reform Act really doesn’t pass this test, because it’s really not even approaching universal suffrage. A number of rotten boroughs were deleted, and redistributed to the new industrial towns; a rotten borough by the way was a place once a town, but where there were no longer any tenants or very few – so basically the landowner had control of an MP. The Franchise was extended by making the 40s qualification apply to lease holders as well as landowners, and the qualification reduced in boroughs. The impact of the act was to raise the electorate in England to about 633,000 or about 6% ish of the population, though it had a more dramatic impact in Scotland where the electorate went from 5 to 65,000, and relatively small impact in Ireland where land values tended to be lower. So look, you see what I mean about Great? 5-6% representation, hardly mass democracy.

A couple of points to make though, so that the act can keep the title of Great. Firstly, the property qualification had sort of been breached; these are lease holders, not landowners. A very tight jar lid had been loosened. Secondly the idea of a fair distribution of constituencies in line with voting population had also been established; the 1832 act was a long way from it in practice, but the principle had been established. And thirdly, I might note that in 1830 political turmoil led to the overthrow of the restored Bourbon monarchy in France; somehow yet again Britain avoided the extremes of violence, reacted to protest and did enough to move on.

So, without wanting to hop over a whole load of fascinating Gladstone and Disraeli stuff, I am going to summarise. The next Reform act would not come until 1867, and that itself came after enormous public agitation in 1848 with the culmination of the Chartist movement presenting a massive petition to parliament. Although Chartism was considered a failure, 5 of its 6 demands would eventually be met and the 6th was duff anyway. In 1867 the franchise was extended to about 1/3rd of the male population; and property qualifications for MPs were dropped – though really it would not be until 1905 and the introduction of a salary for MPs that this really had an impact on the social composition of parliament – MPs salary being a demand of Chartists in 1848. I would like to make the point that in 1848 when the chartists were presenting their petition Europe was racked with revolutions in multiple countries, becoming known as the year of revolutions; once again, the British constitution, along it must be said, with some carefully targeted acts of repression, allowed the state to avoid major bloodshed – but still generated change. Further reform in 1884 and 1886 delivered regular constituencies in line with population, and extended the franchise to 2/3 rds of adult males, while the idea of women’s suffrage was becoming discussed from the 1860s, though with a long way to go.

The 19th century also saw the finishing touches applied during the reign of Victoria to the edifice of constitutional Monarchy. Victoria remained an influential figure, and frequently rather alarmingly favoured different politicians, such as Dizzy for example rather Gladstone who, fine man though he was, apparently had a tendency to address her as though she was a public meeting, but her practical power was slight. She could quite clearly not select her own ministers – that was effectively the preserve of parliament, and the PM was dependant on their parliamentary position not their relationship with the monarch. Governments fell because of no confidence motions in parliament, not because the monarch sacked them; elections came after changes in government not before as previously. Party organisation hardened within the House of Commons, the independent member of the 18th century disappears.

This is bemoaned much – and still raises some debate; the impact of party politics on representative government; and I am not sure that this basic principle is well understood by the electorate. So, during all the Brexit kerfuffle I remember there was a poll about the basic question of representative government – the question was, should an MP do exactly what you the constituency electorate tells them to do; or do you elect that MP to take decisions they feel to be in the best interests of the whole constituency in their view. 83% got it wrong saying that an MP must do exactly what they are told. I should note that pretty much every democracy in the world operates on the representative principle, not the idea of the MP being a delegate so 83% of the British electorate do not understand a fundamental principle of their constitution. Jus sayin.  But it could also be argued that party politics operates against that representative principle forcing MPs to vote with the party line, and it’s an argument with some force. To set against that, party politics is also a way of achieving compromise and consensus; parties could not survive if the solutions and policies they adopted were not acceptable to their MPs, at least to the level of being the least bad solution, and policy formation gives a process to defining those compromises. With a parliament of individuals, compromise would be much more difficult to find. It is one of the few arguments I think in favour of first past the post; with Proportional Representation you tend to get a large number if parties, with more tightly defined political agendas; on the one hand you know for whom you are voting; on the other hand it maybe encourages parties with extreme agendas; but then I guess the compromise comes in the horsetrading of forming a government, so maybe it’s as long as it’s broad.

It might be well to take another moment to look abroad again. I’ve felt a little constrained from going into much depth internationally, because otherwise we’d die here and I imagine that you can already feel your braining dribbling from your ear, but a few topics are worth making of the 19th century I think. Let me first have a quick hack at constitution and Empire, with apologies to Rob for not covering the Australian constitution in depth – but really, there’s not enough time!

Anyway, essentially in the early, settler empire, it was envisaged that the British state was being expanded; settlers had planned to create a liberal version of English governmental arrangements. After 1688, although the problems of distance meant that the settlers had great autonomy, in theory the Westminster parliament was supreme; but the American revolution raised serious issues; how come parliament came to be depriving colonists of the safeguards they had fought hard to establish at home? And the subsequent success of the American Revolution irrevocably changed constitutional arrangements for the British settler Empire; while the principal of the authority of the crown remained, the problems of governing from London required pragmatic solutions; and after the Durham report of 1839 powers of government were gradually transferred, leading to the Dominion of Canada in 1867, of Australia in 1901, New Zealand in 1907 and South Africa in 1910.   The Statute of Westminster in 1931 declared that Westminster would no longer legislate for a Dominion without its request, and they effectively became autonomous states.

A second British Empire however also grew up based on conquest rather than settlement – obviously the settler empires were also based on the conquest of indigeonous peoples; the distinction here is that this second empire was authoritarian rule over mainly existing populations with limited settlement. Even though states like India never became tributary states – taxation levied in India was spent on the government of India – the question was always how could the empire of conquest be justified in the light of the British Constitutional values of liberty, equality and the rule of law?

The rather arrogant answer was that the British should work to develop societies until ready to develop their own governmental assemblies. So for example in India, folks such as the utilitarian philosopher JS Mill, and Macauley, worked to promote law reforms into India’s penal, land and revenue laws; this was legal pluralism – introducing some aspects of common law, but generally allowing that the indigenous systems should exist and develop side by side. In Africa British practice always tended to accommodate indigenous structures and collaborate with local elites – this indirect rule was really the only practical possibility. Some worried that the authoritarian rule in the empire might corrupt the pursuit of liberty back home; the best example maybe would be the East India Company whose employees exploited natives and made vast profits, and then returned to Britain. Edmund Burke in particular argued that imperialism was in absolute opposition to British constitutional values.

Ties continued to loosen through the 20th century; it’s interesting to note that the British Empire entered WWI as one entity, whereas the self governing entities of the empire entered WWII individually. After the war, Britain attempted to export the Westminster system to its 53 dependent territories – with varying success; some retain them, many retained some elements within a presidential system, others were changed entirely.

The 19th century saw a wave of new constitutions world wide. You might think that being constitution-less, that Britain had little to do with this movement; in which case you would be wrong. Obviously, The US Constitution and French Revolution were inspirations but so was British constitutional thinking. British thinkers like Jeremy Bentham and John Mill had large networks of correspondents, and Bentham in particular sat at the centre of a network that asked for advice which he freely gave, and he was often visited by international reformers; radicals and revolutionaries fled to London as much as they did to Paris, and the cauldron of London fed the world debate about political reform. In addition, the BC continued to have its admirers. One of these you might be surprised to know, was the great Liberator himself, Simon Bolivar. Bolivar admired the British Constitution because he saw in it a strong executive; and in the chaos of war he believed the new South American states would need such strong executive institutions to help them to survive. In 1819, Bolivar addressed a constitutional conference recommending they look at the British as a model

How can we use the term monarchy to describe a system that recognises popular sovereignty, the division and balance of powers, civil liberty, freedom of conscience, freedom of the press and all that is sublime in politics? Can there be any greater freedom in any other form of republic?’

Bolivar went on to support the concept of strong Presidents appointed for life.

The other constitution I’d like to pull out then is the Japanese constitution of 1889. The constitution needs to be put firmly into the international developments going on around it, which included military and commercial threat and influence from Britain, the US and China. The men of the Meiji regime developed and used the text of their constitution to demonstrate their national distinctiveness in opposition to the cultural threat, but also to lay claim to a greater share of the world’s attention, and give notice that they were a modern and progressive nation. The constitution was firmly monarchical, embedding the centrality of Japan’s Emperor, and demonstrated therefore the importance of embodying traditional national essences that support durability and continuity; it embedded military service, as Japan sought to react to the diplomatic situation around it. But it was also progressive, with the opening of a new bicameral diet, the first in Asia, freedom from arbitrary arrest, and access to trial. Only 1% of the population were enfranchised, and women would have to wait for 1947 for the vote; but it was the first written constitution in Asia.

OK, so returning to the UK then, I think we have 2 or 3 more things to cover and then we can talk about where next for the UK and its constitution. First thing is the House of Lords; and you might think that the power of the Lords reduced and became largely vestigial in the 19th century, but I think you would be wrong to so assume – actually its power remained the same, and it had deep influence. The change really came in the crisis of the early 20th century, in the blizzard of Social reform, including the introduction of old age pensions and improvements in state education provision. Put together with an arms race with Germany, and it was clear someone would have to pay, and Lloyd George made it quite clear exactly who’d have to pay in the People’s Budget of 1909; after centuries using their influence to fiddle their tax assessments, the aristocracy would have to pay, and face death duties to boot. Now there was a very long established principle that the Lords didn’t fool with finance bills, because if the government couldn’t pass a finance bill, it could not govern; so it’s quite possible that our only Welsh Prime Minister, Lloyd George, who was a wiley sort of bird, knew exactly what he was doing when he put changes in the people’s budget – he was going to provoke the lords into making a mistake. Which it duly did, rejecting the finance bill. There followed an election which the Liberals fought subtly on a peers vs the people slogan, which the Liberals won but narrowly. The finance bill passed, but the liberals introduced a bill to remove the power of the Lord’s veto, so they could but delay legislation by 2 years. The king died, curse him, there was another election and the Queen Anne’s gambit was rolled out again, with the threat to get the king George IV to create a bunch of new peers if the Lords would not pass the Parliamentary reform bill, or to put it otherwise, to force the turkeys to vote for christmas; and finally the Lords rolled over. A further tussle in 1949 saw the Lord’s power to delay reduced to one year.

Interestingly, back in 1911 there’d been proposals to change the composition of the House of Lords much more radically – to make it elective, and reduce it to 350 members. Well, we’ve never got to that, although many proposals have been made. The closest we have got came in Labour’s constitutional reforms of the 1990s which reduced the number of Hereditary peers to about 90, with the rest nominated life peers. It still amazes me that we have members of our parliament there just because of an accident of birth. We also have well over 800 members of the house of lords; and while I think there are many interesting suggestions about the composition and role of a second house that don’t involve abolishing it, and while I have no doubt it does good work – over 800 members is far more than needed surely, and an invitation to cronyism? Answers on a postcard…

So, penultimately, Suffrage again. By 1910, the idea of Universal Men’s suffrage was probably accepted in theory by most MPs; and in fact, with campaigning since the 1880s the idea of Women’s suffrage was probably accepted too. The question of women’s voting rights had of course been around for some time; by way of example, in 1791 Mary Wollstonecraft wrote to Talleyrand, one of the authors of the French Constitution, asking

Whether, when men contend for their freedom, and to be allowed to judge for themselves respecting their own happiness, it be not inconsistent and unjust to subjugate women…who made man the exclusive judge, if women partake with him the gift of reason?

Women had also by this time been part of the debate about constitutional change; in 1761, Catherine Macauley wrote to Paoli in Corsica making suggestions on constitutional changes. Nor was it only women who took the view; Jeremy Bentham in 1789 had drafted proposals for a French constitution, including women in the franchise. Through the 19th century the extremity of inequality reduced to some degree legally and educationally; and women were involved in local government in county and borough councils. Since the 1880s organisations had been formed such as the National Union of Womens’ suffrage Society, and Emmeline Pankhurst and her daughters in 1903 formed the Women’s social and Political Union. It’s arguable that the militancy and tactics of the Suffragettes did not necessarily help gain them sympathy; I read that when Emily Davidson threw herself in front of a horse in the 1913 Derby

The horse and rider were also injured, and public sympathy largely lay with them. [1]

But it was probably once more war that made the difference. The Suffragettes leant their support to the war effort, though Sylvia Pankhurst did not. The war was of course famously vicious and led to the deaths of 800,000 men in action and many more wounded.

Many of those who died would not have had the vote, and together with the society-wide commitment to the war, this seemed insupportable; and led to the Representation of the People act of 1918. The act delivered universal Male suffrage and votes for Women over 30; part of the act was to allow women to sit in the Commons, the first one being Nancy Astor, elected in 1919. It took until 1928 for full universal suffrage to arrive.

Now a common question is where Women’s suffrage was first delivered in the whole wide world, and there’s a thing. Well, in 1838, the tiny British colony of the Pitcairn Islands, with a constitution written by a travelling Scotsman, covered voting by both women and men. In 1881, the Isle of Man, would you believe, gave women with property the vote. But the answer normally given is New Zealand, following a campaign by Kate Shepherd.

In Ireland, universal suffrage arrived rather earlier that the rest of Britain, in 1923. That was because by that time Ireland was no longer part of Britain, though Eire didn’t manage to completely separate all ties until 1937. The 6 counties of Northern Ireland of course, stayed within the Union.

I feel I have broadly done the constitutional history, though you’ll tell me I have left a lot out; and indeed there is a bunch of later stuff I will mention, because in the 90s after a long period of no changes to the constitution, change has come thick and fast. I am sure the lawyers among you are also livid at the things from the 19th century I have left out, but to be honest I don’t regret it. One thing I should though briefly mention is that the arrival of the EU potentially had much impact on law, which generally speaking the UK ducked; the prime example is the Human Rights Act, which essentially promulgates European law as UK law, and therefore cleverly avoid a conflict of the fraught sovereignty issue. Sadly, that is no longer an issue for us.

But before we get onto a discussion about modern changes and what might happen next, it might be worth doing a sort of retrospective; now that we’ve heard what happened and how, how have a few of the great constitutional writers summarised and characterised the British Constitution? What was it that led Jeremy Bentham to describe the British Constitution as the ‘Matchless Constitution’, and something which has instinctively been a matter of great pride; but which is now being questioned more and more.

Let us start with the lawyer and Wallingford lad William Blackstone and his commentaries in the mid 18th century which we have mentioned in a previous episode. Blackstone was part of the tradition that saw the British constitution as the restoration of ancient rights that had been taken from us by the Nasty Normans. For Blackstone the king and royal authority were still central to the constitution; the sovereignty of the state lay with the King in Parliament – the king with the three estates of Nobility, Church and commons. Law in his analysis, was simply the command of the Crown in parliament.

In the 19th century, Walter Bagehot wrote on the English Constitution. He was not a fan of Montesqieu and his separation of powers thing, nor that the constitution operated through a balance between monarchy, aristocracy and commons. His view was that the monarchy provided the outward display of unity, on top of what was a ‘disguised republic’. Far from powers being separated, the triumph of the constitution was the fusion of executive and legislative powers. That fusion depended on the institution of Cabinet, where real power lies.

Just to add some information to that, the Cabinet emerged from the 19th century, and is indeed at the heart of government, and yet in the finest of British ways, is not a defined constitutional entity – although it might be now actually. It works on three principles – secrecy, meaning decision making takes place in private so that people can speak their minds; unanimity, meaning that once a decision is made all members of the government must support it; and confidence meaning that government must retain the confidence of parliament – parliament scrutinises what government does and holds it to account. In here does indeed lie a fusion of parliament and government, and in working through this fusion, Bagehot noted that the role of parliament was to select the government, thus maintaining that integration and mutual accountability.  There is another factor though, which is the principle of a permanent, non political civil service, served by the principle of anonymity so that civil servants can work without political pressure or consequence.

Walter incidentally, was not confident that the coming democracy would work; but identified reverence in the monarch as critical to maintaining the confidence of the people in their governments.

Our last commentator A V Dicey took a rather more legalistic approach. He identified 3 principles of the constitution;

  • the legislative sovereignty of the crown in parliament;
  • the universal rule of constitutional law, defined constitutional rules if you like;
  • and thirdly constitutional conventions that manage the constitution

So put it another way; parliament is supreme in making law – it represents authority.

The rule of that law represents and ensures liberty of the individual.

Political conventions prevent parliament or its government from doing the unthinkable and legislating against personal liberty. QED.

Now I’m not going to go on though I am aware I have missed out many august authors, but just to take an overview for a moment, it is heartening, is it not to know that brains far finer than mind have been working away at all this, and that rather than just a jumble of stuff in the cupboard; the British Constitution may have evolved over a long time, it may have been forged in the fire of practical politics, but it has some rules behind it, some theory that holds it together. In this history we’ve seen constitutional development go through what Martin Loughlin describes four stages by which monarchical authority had been accepted and incorporated into a constitution, that has provided stability since the start of the 18th century which gave Britain the environment that supported economic growth, made the transition to modernity, and made the transition more recently to democracy without the kind of violence and turmoil that has happened elsewhere. It’s quite an achievement, whatever we think of its suitability going forward.

Those stages then, include firstly

distinguishing between private and public aspects of kingship, as we saw in the reigns of Edward II and onwards. There is a person called a king, but that person occupies a job called kingship, and the office kingship is permanent irrespective of who happens to be holding the crown at the time

Next, came Recognition that kingship was representative, that the monarch exists for public good, a principle accepted even by the absolutist minded monarchs such as James I and VI.

Then thirdly was established the recognition of the composite nature of kingship – what we have described as the king in parliament. Authority is not from any one of parliament or king, but from their combination.

And then finally, the recognition that authority is not top down, from the monarch, but derives from the people. This this stage peculiarly in BC was achieved through political accommodation and change rather than a written legal definition.

So that’s all fine then – roll credits, que music and….cut!

Or is it? after 50 years of a complete absence of constitutional reform after the war, in the last 20 or so we have gone thoroughly potty. The big one of course has been devolution, intended to put an end to the growing support for complete secession in Scotland, which it has signally failed to achieve; and for more autonomy in Wales and in Northern Ireland as part of the aims of the Good Friday Agreement; in the creation of Mayors there’s also a rather halting, shallow effort to reverse some of the extraordinary degree of government centralisation in England; but then support for regionalisation at the time appeared weak. After all this change, we have also ended up in the frankly absurd situation of 3 devolved governments and one nation which does not have it’s own government, namely England, which seems barking mad to me.

It’s not just devolution or the rise of Nationalism putting a strain on the constitutional though; in there are many other concerns which have folks arguing that the rationalist approach to a constitution should finally be adopted here too. The point about a rationalist constitution is that it has a central, written document, which therefore gives it an agreed set of fundamental laws which emanate from the people and which precede government. These laws are in theory not subject to the vagaries of elected majorities, and therefore defend the rights of minorities.


Whereas the British constitution rests on the supremacy of the crown in Parliament; whose authority emanates from the people only through political agreement rather than a written document; the strength of the constitution has always rested on a strong collective identity of our inheritance and values, and faith that the political conventions and arrangements that protect individual liberty will be respected and constantly updated.

That collective dream and faith is considered by some to be under threat, and here is a list of why. Legislation is now almost entirely the preserve of government rather than parliament; there is increasingly low public faith in the probity of government to work to customary conventions when expediency calls. The constitution is thoroughly complicated – most of us just can’t understand all its moving parts, as hideously exposed by that widespread ignorance of one of the absolute basics – the principle of the MP’s role of representation as I pointed out earlier. And there is enormous pressure on parliament which makes its job of holding government to account very hard; most of parliamentary time is now controlled by government for reasons of efficiency – so it can simply dodge debate and avoid scrutiny. Decisions taken about individual freedoms during the pandemic might have been correct – but for a period they were made entirely without parliamentary scrutiny.

The strength of party politics gives governments a level of control over patronage that many previous monarchs would have dreamed of – and the ability of parliament to act independently in holding government to account is severely limited – facing the danger, as happened of course during the Brexit debates, that dissident voices will simply be thrown out of their party. Given that the monarchy is quite obviously no more than a symbol; and that the composition of House of Lords is quite so clearly undemocratic, and anyway has limited powers; and that parliamentary independence is so limited, what we face is a tyranny of elective majority government.

None of this is new, by the way, though there appears to have been ever greater potential for polarisation with highly contentious issues like Brexit, with identity politics, with the centrifugal forces of nationalism; the Chancellor Lord Hailsham was warning us of this in the 1970s, and advocating that we needed a properly codified constitutional law to protect fundamental liberties from the tyranny of the majority.

There has been a reaction to this, on the quiet; and it has lain in law. Quietly, even sneakily, the judiciary have been seeking to establish a common law constitutionalism – to make the judiciary more than servants of the legislature, and codify within common law a body of common law which should be treated as constitutional or fundamental law, against which government can be held to account; to establish a principle that it is the constitution, not parliament that is sovereign. Now there’s a thing.

An interesting example of this was the attempt to prorogue parliament during the Brexit process, which was taken to the supreme court, and the government forced to row back. This was but the latest example of the judiciary holding government to account, which was enshrined in the Constitutional Reform Act of 2005, which explicitly sought to establish a separation of powers; and which includes the text which makes explicit that the rule of law in a constitutional principle. Parliament is therefore subject to fundamental constitutional law, rather than parliament being simply supreme. This power of scrutiny of government by the judiciary I suspect has been rumbled by the current government in planned reforms to the Supreme court, which given the depressing level of interest in constitutional matters will probably pass without notice. In all these moves by the judiciary and in the response from government, the age old core value of the British nation has been in play; bit by bit, negotiation by negotiation, pragmatism always. Let’s not get too excited by all this theoretical stuff.


Now I must come clean; I am only really aware of these concerns because I did the research to write this. I had vaguely heard some debates about Direct democracy, but that’s about it. So you might want to be relaxed; after all, we have made a virtue out of pragmatism, the constitution has protected our civil liberties very successfully together with the triumphs of common law. And in fact I read a study of how constitutions change and many of the conclusions rather re-inforced the strengths of the British approach, as well as minimising its level of difference from all these written constitutions.

So for example; the study makes the point that none of the world’s constitutions are solely written or unwritten – they all have multiple documents; and all constitutions are political to a greater or lesser degree, the result of or amended by political negotiation. Most need to change, and incremental change is easier – where formal changes are required according to written rules, they prove much harder to achieve; and constitutional breaches are easier to avoid where incremental change can be made – so, bit by bit, pragmatically. Interpretation of the rules by courts are the most common form of maintenance and defence of constitutions. So look on all of those, our constitution doesn’t look quite so different, and it’s flexibility and ability to change are positive boons.

But the study did raise other less positive points; it found that entrenchment, or written definitions defined as fundamental law, is the most successful way to promote checks and balances, transparency, and stability. It found that general the trend is away from parliamentary sovereignty to constitutionalism; and that the clear definition of a constitution promotes transparency and understanding.

So look I have done enough. I have heard many conflicting points of view recently I must admit; while the surreptitious establishment of a legal constitutional background to the constitution seem positive to me, others have pointed out, quite convincingly that lawyers are often rather over rules based; many constitutional issues are complex, and require political debate. I started this, very much convinced that a written constitution was absolutely the future as I just said; but then again in practices the differences between written and unwritten forms seem a lot less significant than I had thought.

Personally, I think as a country that we face multiple issues – over devolution, the re-invigoration of local government and over refreshing our constitutional structures that would make it really useful to have a root and branch review of our constitution; to do what we have never done and go back to first principles and agree what kind of nation or nations we want to be. Almost as though the process rather than the structure is more important. But that is only a personal view.

If you are interested in the debate I would recommend to go along to have a look at the Electoral Reform Society at, though they are strongly in favour of a written constitution it must be said.

[1] Lyons, A Constitutional History of the UK, 1/e p 388

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