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.
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.