26th October 2022
From time to time it is worth revisiting the question of whether we should have a codified constitution.
For many the answer is self-evident.
Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.
The view of this blog, as you may know, is more sceptical.
There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.
In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.
Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.
The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.
And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.
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So: are our current constitutional arrangements liberal?
Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.
But.
Take a moment.
Here are three counter points to consider.
First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases. And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.
Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.
And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.
If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.
We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.
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That said, there are problems.
For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.
And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.
Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.
And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.
The counter-case is strong.
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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.
The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.
We cannot always trust illiberal ministers to make easy mistakes.
And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.
Brace, brace.
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