18th September 2021
Today’s post sets out something which has long interested me about constitutions, but I do not think I have set out in one place before.
It is about different ways one can approach thinking practically about constitutions – and why one particular approach is to be preferred.
By practically, I am making distinction with thinking theoretically or academically.
For such clever stuff other writers and texts are available.
*
There seems to be three broad ways of thinking practically about constitutions.
*
The Institutional Approach
The first approach is to have regard primarily to particular institutions – say the crown (which can cover various functions and other institutions); the prime minister and the cabinet and the Whitehall departments; the Westminster parliament; the various courts the devolved administrations; local government; the security agencies; the established church; and so on.
Here an account of, for example, the constitution of the United Kingdom will set out how all these institutions work together or muddle together.
*
The Functional Approach
The second approach is have regard primarily not to institutions but to functions – and the usual typology here is to separate out executive, legislative and judicial functions.
In many constitutions – especially the sort you and I are most familiar with – these functions will correspond generally with various institutions.
So the legislative function corresponds with, say, the Westminster parliament or the federal congress in the United States, and vice versa, and so on.
The advantage of this functional approach over the institutional approach is that it recognises that certain institutions can perform more than one function – and that a function may be performed by more than one institution.
Central government in the United Kingdom, for example performs an executive function (obviously); but also by issuing secondary legislation and various rules, will perform a legislative function; and in determining individual cases, will perform a judicial (or quasi-judicial) function.
By concentrating on what is being done – rather than on which institution is doing it – this functional approach is often more useful than an institutional approach.
But.
*
The Limitations of the Institutional and the Functional Approaches
By setting out institutions or even functions, there is the risk of having a limited understanding about how constitutions operate (or should operate) in practice.
You can end up having that naive notion that ‘all which is needed‘ for all political ills to be remedied is for there to be a written (that is, codified) constitution.
The simplistic notion that if only one set out the institutions of the state – or the functions of the state – with sufficient elegance in a single document then everything would be fine.
I have always found that approach not to be compelling – though for a long time I was not certain why this was the case.
But I think it is because neither the institutional nor the functional approach prioritise dealing with tensions and conflicts – that is, checks and balances, that prevent one group of people with public power doing whatever they want.
The institutional and functional models, for me, appear to regard tensions and conflicts as bugs not features of a constitution.
The (unspoken) notion is that, if things are going well, and a particular institution is doing what it should do, or those performing a particular function are doing as they should do, then there will be no conflicts.
Everything would be fine and neat.
Of course: when there are tensions and conflicts they should be regulated in some way, but that would and should not the the constitutional norm.
The happy idea here seems to be that if you just put in place the right written (that is, codified) constitution then there would be no or few tensions and conflicts.
*
The Tensions and Conflicts Approach
I prefer a third approach which does not see tensions and conflicts as a regrettable afterthought in constitution-mongering, but as central to any worthwhile constitutional arrangement.
This approach asks the following hard-headed questions.
How are those who make rules checked in practice, and by whom and on what basis?
How are those who make decisions checked in practice, and by whom and on what basis?
How are those who determine the disputes of others, or who decide on the rights and obligations of others, checked in practice, and by whom and on what basis?
How are those who seek to use coercive force – either in various uniforms or otherwise – checked in practice, and by whom and on what basis?
How are those who seek to invade the privacy of others – for whatever reason – checked in practice, and by whom and on what basis?
And so on.
This approach cares little for the institutional trappings of those seeking to impose power on others.
This approach is unsentimental about grand-sounding institutions such as the crown or parliament or the courts – and sees instead people, stripped of their glamours and baubles, who are seeking to impose their will on others.
This approach also does not assume that there is some perfect manner where those who perform functions – executive, legislative, judicial, or otherwise – can be entrusted to just get on with their jobs – with the rest of us just deferentially nodding along.
This approach instead makes conflict and tension central, rather than peripheral, to an understanding of any constitution.
It avoids the presumption that those who perform functions – executive, legislative, judicial, or otherwise – should get their way, unless there is an exceptional reason for them not to do so.
Of course, by recognising that there are such tensions and conflicts there is, in turn, the risk of stalemates and blockages.
But a practical constitution would set out how each of these tensions and conflicts are to be managed – rather than pretending that they do not exist, or are exceptional.
*
The question of a written (that is, codified) constitution
Elsewhere I have set out why – rare for a liberal – I am dubious about written (that is, codified) constitutions.
It seems plain to me – if not others – that written (that is, codified) constitutions can be illiberal devices, that will be more likely to entrench executive power than limit it.
But if there were to be a written (that is, codified) constitution in the United Kingdom, it should not start with institutions or functions but instead with checks and balances.
It should identify the foreseeable points of conflict and tension and then set out how they should be resolved and on what basis, and then work backwards from there.
Just like a well-drafted commercial contract starts from where there would be obvious disputes and works backwards to allocating rights, obligations and risks accordingly.
The problem with any worthwhile written (that is, codified) constitution for the United Kingdom – that sets out the practical ways in which those with any power can be limited – is that those with power would never allow it to be put in place.
*
Why the Tensions and Conflicts Approach should be used to evaluate any constitutional reform
But even without a worthwhile written (that is, codified) constitution that starts with tensions and conflicts and works backwards, there is (I aver) merit in approaching any proposed constitutional reform or political change not by asking about institutions or functions but by asking how will abuse and misuse of the reform or change be managed?
That is to assume, as a given, that any proposed constitutional reform or political change will be abused and misused by those with power.
For it is by expecting the worst, and acting accordingly, that one can accomplish any sustainable constitutional improvement.
And it is this dismal, hard-headed, realistic approach that (I aver) should be the basis of any practical consideration of constitutional questions.
**
Hello there – if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.
***
You can 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).
****
Comments Policy
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.
Really interesting view and I think I broadly agree that it’s the conflicts, the scrutiny, that counts, though I would absolutely advocate a Consensus Codified Constitution.
It seems to me that under our current system Government is authorised and scrutinised by Parliament, that Parliament and Government are scrutinised by the Committee system and the Lords and that neither of the latter have any real authority. That enables a Government so inclined and with sufficient majority (and discipline) to behave as authoritarians. I’d suggest that’s where we are with the Police and Crime Bill, the Elections Bill etc.
It’s also clear that the relationship of authority between UK, National, Regional and Local government is still inadequately defined.
Check and balances – I cannot but help be drawn to that beautiful constitution that formed the United States of America with its own elegant ideas for how tensions should be resolved through checks and balances.
In those discussions, they thought that they were future proofing the constitution at hand. And to be fair, Trump did provide a test they had considered and the constitution did stand (just).
But what worries me about the American experiment is that the founding fathers didn’t envisioned the modern state. The way the federal government has gotten around this has been to expand what a finance bill can do. This has come at the expense of the country’s constitutional settlement. Necessary for a modern country – yes but at the cost of illegitimacy in the eyes of many of the electorate who cannot reconcile the pragmatism with the system of government they have been brought up with.
So even with a tensions first approach to constitutionalism, how does a society avoid codification in its belief system? Ultimately governments stand or fall on their legitimacy in the population.
It is likely impossible to future proof anything. What we consider to be the likely future is only an extension of what currently exists and cannot encompass that which has yet to be invented. A great example is the late 30s (1939?) Proceedings of the Academy of Sciences (USA) article that predicted science and technology 40 years forwards. Entirely missing, quite naturally, were the new inventions, nuclear weapons, all computer hardware and software, DNA sequencing and allied biotechnologies, and so on. It is these that have caused the greatest changes.
So perhaps every ~20 years there should be a year designated to discussion of the tensions, how these have evolved and whether the existing system is able to cope. A regular review, naturally with its own checks and balances built in, might allow a constitutional system to be live, so brought to the attention of the citizens once a generation or so, and to adapt to changed circumstances.
Quite. The European norms EN system prescribes periodic reviews as uses and power of équipement change in time.
The EU, designed initially to prevent another war between Germany and France has worked. It’s current aim needs to be reviewed. Who voted for centralistion by stealth, ever closer union?
Question: “Who voted for centralis[a]tion by stealth, ever closer union?”
Answer: the 1957 founding Treaty of Rome that reads (in French):
“SA MAJESTÉ LE ROI DES BELGES, LE PRÉSIDENT DE LA RÉPUBLIQUE FÉDÉRALE D’ALLEMAGNE, LE PRÉSIDENT DE LA RÉPUBLIQUE FRANÇAISE, LE PRÉSIDENT DE LA RÉPUBLIQUE ITALIENNE, SON ALTESSE ROYALE LA GRANDEDUCHESSE DE LUXEMBOURG, SA MAJESTÉ LA REINE DES PAYSBAS,
DÉTERMINÉS à établir les fondements d’une union sans cesse plus étroite entre les peuples européens, …”
As far as I’m aware the official text is only available in the languages of the Founding Nations, i.e., French, Italian and German. The UK joined (regrettably) in 1973.
I’m afraid that – just as in the case of the NIP – in the UK politicians (and the general public, apparently) do not read the documents they sign or talk about. I believe that speaks loudly of the opportunistic approach followed by the UK throughout the whole Brexit process.
“The problem with any worthwhile written (that is, codified) constitution for the United Kingdom – that sets out the practical ways in which those with any power can be limited – is that those with power would never allow it to be put in place.”
Indeed. This will be a merely theoretical discussion in the UK, until something comes along to dismantle the UK state, and then there will be an obvious need for a codification of how this state is to be run.
Foreseeable dismantling occurrences: a majority in Northern Ireland for Irish unification; Scotland demanding independence from the UK; the fall of the House of Windsor.
Like (almost?) every modern state, Ireland has a codified constitution. The Scots already have various draft constitutions. However the pressures breaking up the UK are resolved, it seems likely that a codified constitution will become necessary to describe how each part works, together or as separate entities.
From the perspective of your Tensions and Conflicts Approach, it seems to me that the UK is currently not well positioned to create a written constitution.
Most people in the UK have lived in a relatively well-functioning state for our entire lives, or at least up until the last few years. My impression (and I could be wrong about this) is that there is a general view that the system works, and that, by and large, those in charge play by the rules, corruption is low, democracy is secure, etc.
If this impression is accurate, then the population is probably too trusting to evaluate a potential written constitution using your Tensions And Conflicts approach. This is one reason I regard the idea of a written constitution as too dangerous in this country.
“there is a general view that the system works, and that, by and large, those in charge play by the rules, corruption is low, democracy is secure, etc.”
I think there is probably a general view that that is the case. Unfortunately I don’t think it’s true.
It is a view that is essential to the conservative party which benefits from the current arrangements more than any other political party.
But the current arrangements rely on the”good chap” model of self restraint and respect for the constitutional ideals.
A populist government is demonstrating that this model is no barrier to doing pretty much whatever they want.
Until there is a recognition that the current model does not work in a fair manner, it will be difficult to get any changes made.
Great post which encapsulates a myriad of issues.
On Tensions and Conflict’s you write:
“This approach instead makes conflict and tension central, rather than peripheral, to an understanding of any constitution…”
Fully agree.
“It avoids the presumption that those who perform functions – executive, legislative, judicial, or otherwise – should get their way, unless there is an exceptional reason for them not to do so….”
Fully agree.
“Of course, by recognising that there are such tensions and conflicts there is, in turn, the risk of stalemates and blockage…”
There is indeed.
My thinking is that Tensions and Conflict’s might be an easy and understandable term to use – it might be viewed as being slightly pessimistic but, more importantly, not fully embracing other key elements of what enables and enforces constitution’s to work.
As I was reading your piece the missing ingredients to me were Governance and Relationship management.
Good governance is ,in my view, at the front, back & centre of functional or institutional approach advocated earlier. It sets out the processes/procedures for managing Tensions & Conflicts inc conventional dispute resolution procedures. It needs to accommodate check’s & balances and all the independent assurance to enforce compliance.
It’s my experience that good Governance ( not, repeat Government let’s be explicit) only works with good and transparent relationship management – relationship management is the glue that makes individuals and organisations /institutions work together in a collaborative and open manner – it positively welcomes problems, challenges, tensions, conflicts and seeks to address them openly in all the various Governance fora.
In summary , whilst relishing Tensions and Conflict’s as a sub-heading, I’m minded that good ( or appropriate) Governance & Relationship Management will add significantly to any new constitutional arrangements.
Most interesting. Looking head off trouble from the outset looks a realistic approach – but.
A nice contrast with Nature that normally tends to minimise the energy or time used up in doing something. We humans, or at least the politicians and lawyers among us, eschew this economy of effort and seek to maximise the aggravation and cost of doing anything.
Having regard to this human principle we will most assuredly seek to avoid heading off trouble if at all possible. Something to do with adversarial systems maybe.
Interesting comment from Simon about “playing by the rules”. I cannot accept that those in charge play by the rules. They use the rules, set by precedent, to preserve their power in the face of tension and conflict. I don’t believe corruption is low and democracy is secure. Take the case of Daniel Morgan which David recently highlighted. Met Police officially described as “institutionally corrupt” in an official report.
The definition of institutional corruption contained in that report can be applied to many other government departments and the NHS. At the top of the (supposedly) investigative process sits the Parliamentary and Health Service Ombudsman with power to make his own decisions as to when and what to investigate. However, on the rare occasions he does find ‘maladministration’ (whatever that means) he is powerless to ENFORCE meaningful change. Recent reports on his ineffectiveness and ability to act regarding the Department of Work and Pensions stand as testimony to this.
The Ombudsman system serves to provide a pretence that the NHS and Government Departments are held to account. His annual report is scrutinised by the Public Administration and Constitutional Affairs Committee (PACAC). Their last scrutiny session in 2020 did little to hold him to account and failed to address many of the submissions made by the public.
PACAC has, on more than one occasion, reported to Parliament that the Ombudsman system, set up in the 1960’s, is in need of major reform. It is simply not fit for purpose unless that purpose is to enable Government to pretend everything is rosy within the administration systems so carefully set up to allow injustice to be ignored.
Hi David,
I just want to clarify, regarding my previous comment, that I also don’t believe that in the UK, corruption is low, democracy is secure, etc. Your counterexample is compelling.
However, I think that many people do believe these things, and are incurious and complacent about our constitutional arrangements. Therefore if a codified constitution were to be introduced, I am not confident that the populace would do a good job of scrutinizing it in terms of DAG’s Tensions and Conflicts.
-Simon
There is an elephant in the room here. There is a fourth and arguably most compelling way to look at constitutions – as standing instructions from the People to the system – but it requires the People to be sovereign.
Which the UK they are not. And until such time as they are, in my view, there is little point in moving the deckchairs around. I agree with Robin Kinross above that change will only happen when a groundswell of public opinion demands it.
Food for thought. I see some echoes with the five questions that Tony Benn raised time and again:
* What power have you got?
* Where did you get it from?
* In whose interests do you use it?
* To whom are you accountable?
* How do we get rid of you?
I like your “Tensions and Conflicts” idea, except that it’a bit repetetive because there is really only one question: “How are the decisions checked in practice, by whom and on what basis?”
All of the other questions that you pose are rooted in decisions, and if the decision can be questioned then that resolves the problems that you posed.
As for the how and the who, we have the technology to allow any decision to be constantly and continually checked by anybody and everybody who cares enough to bother: all we need to do is design a proper and effective interface between the people and the decision.