30th March 2021
This is just a quick post to draw together a couple of points in my law and policy commentary that appear to some people to be contradictory.
On one hand, this blog and my commentary elsewhere relentlessly point out the constitutional failings and trespasses of this government – especially the propensity of current ministers to evade or remove checks and balances.
On the other hand, I am not a fan of a codified constitution (popularly though misleadingly called a ‘written constitution’) and can indeed be quite dismissive of those who contend it is a panacea for our political ills.
How can I be one and not the other?
Usually my first response is to aver that any written constitution would be more likely than not to entrench executive power – especially one which was introduced while the government had a high parliamentary majority.
But there is a second reason which I should perhaps emphasise more – especially when the knee-jerk accusation is that any legal commentator is legalistic – and that is that there needs to be a change in political culture.
‘Constitutionalism’ means taking constitutional rules and principles seriously in any given political circumstance – that things should be done or not done in a certain way because constitutional rules and principles matter in and of themselves.
One can have constitutionalism within a political system without a codified constitution – indeed the lack of codification arguable makes the following of basic constitutional precepts more important in political action.
And in the United Kingdom, there have been constitutionalist politicians in all parties.
The merit of constitutionalism is an acceptance and appreciation that there will be tensions between the elements of the state and that there are certain ways in which these tensions can and should be addressed before they harden into conflicts.
Without the political culture of constitutionalism, however, there is no point in having grand words in a codified constitution.
In the current politics of tribalism and hyper-partisanship – especially where the government wishes to eliminate all checks and balances – what is needed more than ever is a sense of constitutional propriety.
Some may aver that constitutionalism would be a happy consequence of a codified constitution – though the recent example of President Trump in America perhaps indicates that even with codified constitution there can be rampant anti-constitutionalism.
The revival and promotion of constitutionalism, however, would require political leadership – for leading politicians to insist there are principles and rules that are distinct from the partisan self-interest.
And writing in early 2021, such a shift in political culture seems as remote as any codification.
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Thanks once again for the blog.
I think I am completely in agreement with you that codifying the constitution must happen after a change in the political culture of the country. Otherwise, codification would just be used to reinforce the malignant powers of the government in power.
Constitutions are normally created after the creation of a country or a defeat in a war. Sometimes, but rarely, after a breakdown in the political structures, as in France.
We aren’t there. Yet. But it isn’t at all clear how we will end up at a point in which the political culture changes for the better.
As you say occasionally. Brace. Brace.
I think the problem we face is that we are “led” by a chancer journalist who has never believed that he should be governed by the rules. We now face a situation where, increasingly, the executive is willing to buck convention (perogation of parliament for illicit reasons, defiance of the High Court over the Benn act etc) and the judiciary, kind of understandably, are unwilling to challenge the lawlessness of the executive. Johnson thrives on wiggle-room – as the Accuri affair (no pun intended) shows. He has no moral compass to restrict him, so until the electorate (or his back benchers) boot him out, we are faced with more of the same whenever it is expedient for him to demonstrate the elasticality of the law. We are all supposed to be equal before the law, but anybody who has had first hand experience of it will aver, whilst all animals are equal, some are more equal than others.
The wind of change is often sensed before it is heard
The prudent prepare.
The imprudent are swept away
But none avoid the wind of change.
And are you sensing the wind of change?
I agree constitutional change must occur in an environment when the need for such change is widely understood and the necessary principles are clear in the minds of those effecting the change. Therefore a lesson needs to be learnt first. Law only follows after.
Presumably, your frequent cry of “brace, brace” is in anticipation of the lesson. I can understand how lawyers, as lawyers, must take cover, stand by and wait patiently until they can make a contribution. But what I find very difficult to understand from a viewpoint outside the UK is why UK citizens, as citizens, seem paralysed and unable to do anything to try to save their country. Must they stand by and wait patiently for the lesson too?
I share your disquiet. But tell me: what should we do instead?
Be angry and manifest that anger. Personally my first target would be the populist press for its cynical lies and its whipping up of hatred.
How to manifest anger is up to the individual citizen or groups of citizens but it may well involve law breaking, as the laws have been made and are continuing to be made to protect an unsatisfactory status quo.
Sometimes the moral course is to break the law. I have no doubt that people in the UK would agree with that principle where other people and places are concerned (and I suspect quite a few from the UK feel equally free themselves to break another country’s laws when they are in that country) but there seems to be an inhibition about choosing morality over lawfulness at home. I suspect the UK’s ongoing celebration of its own military tradition and more particularly the ancestors who died therein induces a passive obedience: One’s grandfather who died fighting Hitler (or one’s great-grandfather who died defending rather more dubious British interests, there appears to be no judgement involved) would be horrified at breaking ranks with the State. So people don’t.
What I find, as an outsider, equally difficult to understand is that there exists no organized alternative to the current state of affairs. Where is Labour? A “chancer journalist” may be a bad choice but if he’s the only choice, well then, nature abhors a vacuum.
I agree with you entirely. For those who like the idea of a written constitution simply ask the “who would write it”. Then go on to ask “what should be covered in it?”. Good luck with that. If the country is at such a point as to feel the need to codify political and social behaviour then one has to ask “codify what behaviour”. The political process, no matter how currently flawed it may be, is the only way to mediate among competing values and desires. As Mr Green has written before, a written constitution does not in itself promote accountability and democratic behaviour.
I think that a written constitution will only emerge after a major shock to the system, a war like situation. The question “who would write it” is very to the point. Coming from a German legal background, I really admire the German constitution and what the Federal Constitutional Court made of it. And it provides much stronger protection against the undermining of the judiciary which is becoming stronger here in the UK.
Three cheers for constitutionalism but a spot of honesty and integrity would go a long way. How naive does that sound?
Perhaps what we are seeing is a hiatus in government and society. Essentially our government has painted itself into a tight corner. There is nowhere to go, no real use can be found for dozens of ministers, in a commercial setting a big redundancy campaign would be in train. But the gravy train goes on – for now.
Similarly with society, there don’t seem any good new productive schemes on the horizon. Plenty of mucky corners to clean up but no money and no will from government. Our game of perpetual busy-ness has come to a stop, we look around and wonder – what now.
Like Anthony T, I sense that we are at a turning point, because things have largely stopped we can see the defects in our government more clearly than when we are all busy. I fear that when things get ‘more exciting’ we will forget constitutionalism. My fear is that ‘more exciting’ will, for many, mean more unpleasant.
David
I agree with your views on a written constitution, particularly at this moment in time.
You say “for leading politicians to insist there are principles and rules that are distinct from the partisan self-interest.”
This cannot be emphasised too strongly.
It comes down to character and the system’s determination to subvert any politician with strong personal as well as public integrity, who’s prepared to follow their conscience on important matters rather than unquestioningly follow the Party line and who’s prepared to serve the public rather than their self-interest.
These qualities are no longer welcomed in our political system. Not if a politician wants progress through the ranks to a point where they can actually make a difference.
Instead, unquestioning loyalty to the Party, dishonesty, immunity to critical thought and self-promotion, are among those qualities that get you noticed and rewarded and it appears, make you popular with Party loyalists.
Consequently, we get the politicians we deserve.
The economic commentary is that it is rational for a leader to try to reduce the risk of losing power. The shocking example near the beginning of https://en.wikipedia.org/wiki/Why_Nations_Fail is a newly elected leader of a newly independent country digging up the country’s main railway line. It was rational to weaken the economy of a region where his political opponents lived. If they were poor, they would be less able to organise to unseat him. He was then able to turn the country in to a one-party state.
It is not, as David correctly points out, written constitutions that prevent that kind of thing. Many countries rewrite their constitution all the time, and they are not stable well-governed countries. Or ignore it with impunity. What prevents it is the spreading of economic and political power, and prevention of the promotion of narrow interests at the expense of others. Election to government is less an elective dictatorship when others have rights and powers too.
Britain got ahead first mainly because of the Glorious Revolution, according to that book. It limited the power of the monarchy like no other stable country at that time. That combination of stability and less centralisation of power enabled economic power to spread in the industrial revolution. In central Europe, industrialisation was deliberately impede by aristocrats to preserve their power.
More recently, some European countries had their old influence structures more thoroughly cleansed through the wars of the 20th century, and emerged to overtake us. Or overtake us again, in Germany’s case.
Our wealth and status can grow provided the competitive and meritocratic processes spreading wealth and power operate more powerfully than politicians attempting their own power grabs. But, like the US, we now differ from much of NW continental Europe in our greater concentration of economic power and influence, and weaker social mobility. They have already thrown off the EU, a structure that reduced the concentration of power, proclaiming that was a good thing. Sadly people believed them.
Levelling up would be a good thing, one of the best things. But I don’t see the powerful supporters of our cakeist leader allowing him any real levelling up. You only have to look at Rishi’s latest budget to see they don’t believe in it.
Both creating a written constitution and taking constitutional rules and principles seriously in any given political circumstance require a sufficient degree of agreement as to what said rules and principles actually are. It’s that which appears lacking, at least in several important areas.
E.g. (from the perspective of effecting a written constitution): How would the Constituent Assemblies be elected? For what matters would positive votes in each be required?