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In approaching questions of constitutional change I have learned to be circumspect. It is now clear to me—as it was not even a few years ago—that it is entirely possible to find proponents for almost any constitutional position but virtually impossible to locate any argument that has thus far succeeded in triggering principled reform.
To say this is not to deny the existence of constitutional change or even reform. The history of New Labour from 1997 continuing through the Brown administration and on into the present Coalition is testament to the shifting of several—some might say rather too many—constitutional tectonic plates. But the shifting of constitutional tectonic plates either randomly or, more recently, as a knee-jerk political response to events is not to be equated with principled reform.
Let me pursue, for a moment, what I see as the disconnect between, on the one hand, constitutional ideas and arguments and on the other, actions that affect the constitution before seeking to articulate what I believe might best be done with proposals for a codified constitution.
There is no shortage of constitutional ideas in our democratic institutions. The same witnesses flit in and out of constitutional and other select committees. Their evidence is nearly always interesting and usually valuable. One cannot fail to be impressed by both the quality and quantity of reports reflecting that evidence that emanate from our select committees. Yet, despite this proliferation of new and important constitutional ideas they are routinely given scant consideration by the government of the day in terms of actually changing anything. Instead, constitutional action, often of a far-reaching nature and sometimes of a potentially divisive nature, seems to come about as a result of other dynamics.
The creation of the Supreme Court is but one example. There were, undoubtedly, some principled reasons for creating a Supreme Court. The key constitutional reason—more perhaps in theory than in practice—was that the presence of Lords of Appeal in Ordinary in the House of Lords as well as in the Appellate Committees which formed our highest court of appeal might be seen as infringing the separation of powers.
Yet, whatever its merits or demerits, the Supreme Court was created without any Parliamentary debate. It was simply announced on June 12 2003 as one of a package of ‘far-reaching reforms’; indeed, as part of a 'Cabinet reshuffle'. The reforms were implicitly viewed solely as an aspect of executive policy-making and, therefore, in consequential terms as no more or no less independent from government control than any other aspect of policy.
Properly analysed, the reason why constitutional ideas have lost out to pragmatic politics can be seen to be closely related to our prevailing doctrine of Parliamentary sovereignty. It is not, to quote Jimmy Porter’s lament in Look Back in Anger, that ‘there aren’t any good, brave causes left’; it is, rather, that (as any social constructivist will tell you) ideas are only as good as their effect or, if you prefer, their capacity to affect.
But ideas about constitutional change cannot have social (indeed, any) practical effect unless they are adopted as executive policy even if that executive policy is, in any particular case, a policy decision to let the people decide in a referendum. It is precisely because Parliamentary sovereignty, as it has evolved, looks only to executive policy as the fulcrum of constitutional change that ideas—however good and however brave—will be dashed upon the rocks of executive insouciance unless they resonate with what the executive sees as being in its self-interest.
This brings me to the codified constitution. As we know, an enormous amount of work has been done by the Political and Constitutional Reform Committee (PCRC) in conjunction with KCL to draft various possible visions of a codified constitution. The three blueprints proposed by Professor Blackburn as referred to in the PCRC’s most recent Report are being used in a unique fashion to stimulate debate.
My view is that a principled case can and should be advanced for the third of the options – that of a written constitution (a statement telling us in exemplary form only what we might have) being ‘a document of basic law by which the United Kingdom would be governed, setting out the relationship between the state and its citizens, an amendment procedure and elements of reform.’
Why do I suggest this as opposed to the more modest proposals of a constitutional code (the Cabinet Office telling us what we already have in simple form) or a constitutional consolidation act (a detailed statement from the Law Commission of what we already have)?
I have three basic reasons. First, the fact that, and the way in which, the PCRC has produced these three impressive documents has itself created a dynamic that can, and should, be used to seek to influence the government to introduce measured constitutional change.
As the Committee Report states it has adopted an unusual approach from the outset in putting its Report before the people as opposed merely to making recommendations to government. It may be that the people will opt for a diet (5:2 or perhaps something more generous) that offers us only the food that we already have on our plate. But I doubt it. If we are, as this Committee report takes us, on a voyage of discovery to some form of codified constitution it makes little sense to restrict the content to codifying that which was, on the logic of Parliamentary (or, rather, executive) sovereignty never intended to be codified. Put another way, the virtues of codification, unlike our current constitutional arrangements, are that it reflects principle rather than expediency. But if one sticks to that which has grafted onto our constitutional arrangements by successive acts of executive policy we risk ending up with something that was never intended to be a constitution at all.
So my instinct is that when the PCRC has ended its consultation it is likely to find a strong majority favouring something that is worthy of being called a codified constitution. Assuming that this happens a new (albeit probably still relatively low-key) dynamic will have been created with a considered set of views on all the options short of doing nothing. Whether it succeeds or not is anybody’s guess but there can, surely, never be a better place from which to try.
My second reason for favouring a document that includes elements of reform is that if we are (as we inevitably now are with the PCRC Report) into the arena of possible constitutional reform we can only talk about it in an evaluative way if we have reform proposals as the touchstone for debate. There are aspects of the new, new, Constitution in Professor Blackburn’s third way that I may not like as for example, the somewhat outdated idea of a Director for Civil Proceedings first mooted by Harry Woolf nearly three decades ago. It didn’t work then and it will not work now, in my opinion, for reasons that I would be happy to elaborate upon elsewhere.
But that is hardly the point. No one will ever agree on every proposal in a draft model constitution. But a mere recitation of what we have can spark little evaluative debate at all. To J.A.G. Griffith the British constitution was ‘what happens’ and the same kind of circularity is present in the first two prototypes that Professor Blackburn canvasses as theoretical options. In these versions, the constitution is what we already have and not what we should have. But if we want, as we must, to extend the debate to discuss what we should have, we can only do this if we are presented with models of what we might have.
There is, perhaps, also a more fundamental objection simply to documenting what we have. It is this. Whoever drafts a model constitution of what we have in codified form an immediate problem arises. How are truly ‘constitutional’ documents capable of being selected from amongst the vast amalgam of laws and other materials which some will say are ‘constitutional’ in nature but others will not? Attempts have been made by distinguished scholars to devise a logical system for achieving constitutional differentiation but it is a logic that has escaped the House of Commons. Although there is a procedure for debating so-called bills of first class constitutional importance before the full House there is no obvious rhyme or reason as to what is claimed to constitute such a bill as a matter of principle.
My final reason for believing that if the debate is now upon us we must embrace it fully and with a codified version that contains elements of proposed reform is that we are reaching (indeed may already have reached) the time when such a debate is inevitable. By that I do not mean the fact that this is a good time because we are celebrating the 800th anniversary of Magna Carta (though this is, undoubtedly, an added bonus and opportunity). What I mean is that rarely have our constitutional arrangements been so unsettled.
Professor Bogdanor is no doubt right when he says that new constitutions have usually had a ‘constitutional moment’ that has triggered the drafting of such a constitution. But I wonder whether—in a typically British way—we are not now experiencing our own constitutional moment. We are in danger of suffering the fate of the lobster in the boilling pot failing to realise its imminent fate until it is too late.
The constitutional tensions that beset us at the moment are almost too obvious to be stated. But they are considerable and they are growing apace. As Professor Neil Walker has demonstrated in his excellent 2012 lecture Our Constitutional Unsettlement we are witnessing the attrition of our current constitutional arrangements on an increasingly volatile scale. For example we are witnessing:
(i) the gradual weakening of the doctrine of Parliamentary sovereignty as the universally accepted agent of all constitutional authority. Parliamentary sovereignty is, undoubtedly, the prevailing constitutional doctrine but it now competes for authority in a way that is new: in this respect consider the relations between the executive and the EU, the executive and Scotland and the executive and the judiciary.
(ii) the practical weakening of Parliamentary sovereignty as the undisputed agent of constitutional change. Professor Walker points (simply as examples) to the growing authority of Parliamentary committees and of various Commissions that have been set up such as the Calman Commission for Scotland and the Silk Commission for Wales.
(iii) Doubts about the sustainability of our constitutional settlement in the long term. The Scottish question threatens even after the referendum to destabilise our constitutional arrangements in England and Wales. The Conservative proposals on a British Bill of Rights and if necessary pulling out of the European Convention on Human Rights threatens our position within the Council of Europe and even the EU (whatever the results of any 2017 referendum). And as if this were not bad enough Professor Walker adds ‘Welsh devolution forges ahead, seemingly encouraged by the example and educated along the pathway of its Scottish near neighbour. The Irish settlement remains an often tenuous compromise between starker alternatives.’
So, there has probably never been a more important time to discuss the merits of a codified constitution and, within that debate, to discuss in as reasoned a fashion as possible the possibility of specific reforms.
I will end where I started. Given the constitutional arrangements that we possess, the omens are not ideal for ideas to play a role in fashioning constitutional change. But if ideas are ever to win out they are only likely to win out on a battleground that has been chosen in advance and where—as may be happening here—proposals have been allowed to develop a head of steam and where support for them has been gradually and strategically accelerated.