18th August 2021
There are only two particular things I knew about Austin Mitchell, the former member of parliament whose death was announced today.
The first was that, before he became a politician, he was a capable historian and the author of “The Whigs in opposition, 1815–1830”.
The second was his phrase that (I think) I can remember reading back in the 1980s but which I can only track online to 1997:
‘The British constitution is whatever government can get away with.’
This phrase has stuck with me as a politics student in the late 1980s, as a history student in the 1990s, and as a lawyer and constitutional commentator thereafter.
It is a perfect way of summing up a descriptive (as opposed to prescriptive) approach to constitutional matters.
(Anyone can witter on about what a constitution ‘should’ do, and constitution-mongering is easy – the difficulty is often working out exactly what in practice a constitution is – and is not – doing and why/how.)
And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.
I personally prefer to render Mitchell’s dictum slightly differently, though the ultimate meaning is the same (emphasis added):
‘The British constitution is whatever government cannot get away with.’
In other words: if one was to plot all the instances where the executive cannot just do as it wishes then you would have a fair descriptive portrayal of the constitution.
To an extent that depiction would correspond with the text books on government and law – but also to an extent that depiction would not be in many academic books or papers.
As different as a picture of an elephant drawn by second-hand description against a high-resolution photograph.
So I know little about Mitchell as a person or as a politician – but that one phrase of his set off over thirty years of practical constitutional thinking and writing.
Or at least the constitutional commentary that I can get away with.
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I am not sure that what Mitchell said need any elaboration whether it is written or unwritten as a lawyer you know that the what most Lawyers do in a adversarial style legal system is push the boundary i their favour. The object is not to discern truth but to press the limits of the narrative you can get away with.
it s why I suspect we have to constantly keep updating a constitution be it written or not as we seem to be able to have imprecision that allows creates failures.
I think the real issue is for me not what they can get away with but understanding the motives, in many ways it is the motives that is the real problem.
“an elephant drawn by second-hand description” or even more widely known – the rhinoceros in the woodcut by Dürer!
You spotted my allusion!
Well, John Griffiths wrote in 1979 (based on his 1978 Chorley Lecture) that the British constitution “is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.”
I find that is rather unsatisfying, but suspect it is rather too close to the truth for comfort.
By the by, his article has some spicy commentary on Lord Hailsham’s “elective dictatorship” as a “sexual coupling of utilitarianism and legal positivism”. See https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1468-2230.1979.tb01506.x
More recently, Martin Loughlin looked at that article afresh, placing it in the context of orthodox constitutional analysis from Bagehot – “the object is in constant change” – and Dicey – “each and every part of it is changeable at the will of Parliament” – https://eprints.lse.ac.uk/87572/1/Loughlin_Political%20Constitution_Author.pdf
More on analysis for the 40th anniversary here: https://www.tandfonline.com/toc/rklj20/30/1
More to the point, I’ve traced the following from a book on “Britain Since 1945” published in 1982: “ultimately the constitution is what the government says it is, and can get away with”. Only a snippet, here: https://books.google.co.uk/books?id=9DcaAAAAMAAJ&q=%22get+away+with%22
But I suspect similar things were said even earlier.
All great stuff, Andrew – but their words were not the ones that influenced me
Indeed not, just giving some context. It would be interesting to trace back when Austin said or wrote “The British constitution is whatever government can get away with” in the 1980s, but it does seem to be a thought that others had expressed elsewhere and before.
The interview clip posted below is cracking.
Sorry, thought I’d mentioned it before, and likely also irrelevant, but I found a similar line in (of all places) the University of Toronto Law Journal in 1971, in an article on “The Spirit of the British Constitution: Form and Substance” by William Huse Dunham, who I think was more of a historian than a legal scholar. He says on p.58, “Is then Britain’s unwritten constitution really anything more than the limits to what one can get away with in the governance of Britain?” https://doi.org/10.2307/825419
His answer is, I think, that the British constitution, or at least its guiding “spirit”, is not a fixed framework that permits or prohibits any particular action, but rather a continually contested and renegotiated process of searching for a just, fair and reasonable balance between different interests: control and freedom, the monarch (or ministers) and parliament, the legislature and the judiciary, the government and the people.
Dear Mr. Green,
“And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.”
Should’nt this serious predicament be enough to invoke a codified Constitution? Verba volant, scripta manent.
What is this ‘codified constitution’ just entrenches the power of the executive? Cui bono?
That didn‘t happen when the new German constitution after the 2nd World War was written! The Grundgesetz even codified as constitutional principle equality in all aspects for men and women although only 4 out of 65 members of Parliamentarischen Rat were women! The Grundgesetz guarantees basic human rights with an eternity guarantee (so can‘t be changed even by a two-third majority in Parliament) and it clearly sets out the balance of powers between the executive, the judiciary and parlaments as as representative of the sovereign which are the German people! As this was possible in 1949 4 years after the dictatorship of the Nazis, why shouldn’t it possible in an developed democracy as Britain? I think politicians as lawyers as interested parts of the British public are still too complacent about the risks the unwritten constitute the U.K. bears in case of a government that longs for excessive powers!
Apologies for my typos! I meant ”unwritten constitution of the U.K.”
The observably enormous disconnect in the USA between what is written down and what actually happens, rather gives the lie to the idea that putting a constitution down on paper makes it work…
Exactly – it’s the same anywhere else.
It’s the ‘enforcement’ or, management of the interpretation of the constitution that counts.
It’s always ‘people’ who do this they can come from different cohorts in The Judiciary , The politicians or , The People’s Court – choose your poison with care.
Can you recommend any lucid, non-specialist, non-partisan, recent writing about the UK constitution (apart from this blog, obviously)?
I’m reading Anthony Seldon’s The Impossible Office; the history of the British prime minister.
Just what is the PM’s “job description”? What can he/she do? What can’t they do?
The similarities to this quote are remarkable, but perhaps not surprising. The PM’s job seems to be (almost) what they care to make of it.
I suppose “What is” is a typo and should be “What if” (forgive me, Italian, not English, is my mother tongue).
I understand that it would be terribly difficult to get such a bill through parliament – like that prohibiting the use of filibustering, whilst the opposition would use filibustering as a legitimate tool. Yet I suppose that many constitutions in Europe, like the Italian Republican Constitution, state precisely what the government can do. For instance no Italian government could ever impose anything like “Italexit”.
No Brirish Government could or did ‘ impose’ Brexit. To state that they did, fundamentally illustrates a major misunderstanding about the way the UK works.
The outcome of a UK wide referendum on whether to remain or leave the UK merely Brexit in motion the process of the UK leaving the EU according to our constitutional requirements. Sure we got quite a hard Brexit in the end – equally , at one point it could easily have been Brexit in Name Only ( BRINO) , had PM May’s original Withdrawal Agreement (1) been agreed.
Granted, the way in which we left was negotiated ( and agreed) with the UK & EU – but the act of deciding to leave was by the majority of voters ,albeit by a small majority.
I’m ashamed to say I never new Austin Mitchell as a politician or historian, but what a great phrase he coined and you finessed.
I’m very slightly surprised, as I get the impression that you follow football more than I do, that you made no reference to his seminal interview with Cloughie and Don Revie in a previous career. It was electric.
And I would suggest that it also backs up your (and his) argument: the “constitution” of a football club is whatever the board can(not) get away with…
In this context, I am fascinated by the progress of the petition about lying in parliament – https://petition.parliament.uk/petitions/576886
Apparently, the government does not like it. Does this mean that they are in favour of lying in parliament?
The answer to that has always been – and will always be – yes.
The petition has already been rejected, I notice – the argument seems to be that there are already adequate checks and balances in place (the Speaker, primarily) to prevent MPs from lying in the House.
Which – given the ample evidence of our own eyes – is just another example of this Government’s pathological lying, dressed in the tinsel of the necessity for “freedom of speech”.
While it’s entirely possible that the government want to be free to lie, the issue is rather more complex than that. Who gets to decide what is a lie and what isn’t? Do you really think it is acceptable for MPs in Parliament to be subject to an external superior authority?
Making something a criminal offence doesn’t stop it happening. This feels more like an “enshrining in law” than an effective measure.
The quote appeared in 1987 in ‘Government and Pressure Groups in Britain’ by A. G. Jordan and J. J. Richardson, according to this PhD thesis: https://research-information.bris.ac.uk/ws/portalfiles/portal/34492815/324374.pdf [p.24]
And may also have appeared in other of Grant Jordan’s books such as ‘The Commercial Lobbyists: Politics for Profit in Britain’ in 1990
I think old Austin Mitchell was ahead of his time with his quote.
Frankly you can have as many different types of constitutions as you like – the key issue is who enforces ‘the constitution’.
Let’s keep simple:
In the UK it’s still the politicians via The Government
In the EU it’s an unshamed Political Judiciary via an integrative ECJ/CJEU
In the US its normally the Government but on big hairy constitutional issues it’s The Supreme Court a quasi political Judiciary.
Constitution’s really aren’t up to much without unbiased Enforcement – discuss?
The UK ‘justice system’ is whatever judges can get away with.
Let’s just face it, the UK power hierarchy is fundamentally corrupt – and there is nothing you or I can do about it, save for the same thing that has happened in history. Revolution.