In what sense is the UK experiencing a constitutional crisis? What is the most compelling argument for the UK to embark on a process for creating a new constitution?

There are three sets of arguments, each compelling in different ways. First, the negative one: the existing system is effectively broken, demoralising and generates distrust and bad government over the long term. Second, the positive: that this is the way for the British and in particular the English to articulate who we are in the modern world – to ‘constitute’ ourselves after imperialism and membership of the EU with a democratic constitution, rooted in a convention process, that sets out our aspirations as a country, refreshing a long constitutional culture. Tackling both the breakdown and the need for renewal will have a very positive impact in addressing the chronic problems of democratic government in the UK. Yes, this is part of a general crisis of democratic government everywhere, due to lots of factors associated with the rise of corporate power and globalisation hollowing out a void in representative democracy, but the UK is an acute example. Paradoxically, because we do not have a codified constitution the way could be open to one that embraces all the gains made possible by the digital revolution.

So there’s a negative argument that we have an incoherent and now damaging constitution and a positive argument that creating a new one can address the demoralisation, xenophobia, chauvinism and fear which lace through this country’s sense of itself.

The third argument for embarking on a new constitution is that the breakdown of the old order and lack of belief in the public realm have led the security state to modernise and strengthen itself undemocratically, in terms of surveillance and control, using the ‘war on terror’ as a cover. This is a dangerous extension of the constitutional issues facing the UK and needs a response by society as a whole.

What would you point to as evidence for this broken constitutional process and distrust that you refer to?

First, a health warning. It is like looking at a railway system whose signals break down, whose timetable few believe, whose engines belch smoke. We need a new railway! But to describe the examples, as you ask, means getting technical as we peer inside the engines. It is very important to do this, while never forgetting that it is the system as a whole that matters.

We had a strong and coherent constitution anchored in the absolute sovereignty of the crown in Parliament. That wasn’t a mere legal formula of A.V.  Dicey and others in the 19th century, they worked hard to understand and describe realities. Britain’s was an imperial parliament that could draw borders across the world. Also the centre,  ‘the crown in parliament’, consisted of both the House of Commons and the House of Lords, each with real powers. Furthermore, it was integrated with a coherent, imperial set of institutions: the army, the church, the permanent civil service, at the apex of which was the crown. Its political economy was the unique gentlemanly capitalism of the City, and by gentlemanly I don’t mean that it was gentle but that it had strong moral rules to prevent corruption. A man’s word was his bond. And this proved extremely profitable not least with a global insurance market. This unified constitutional order was a kind of parliamentary absolutism and its defenders were very clear that it wasn’t a democracy in the American sense. But they prided themselves in the way they ensured the consent of the people to the system as a whole. You hear many educated people and smart journalists these days saying “we don’t have a constitution”. The Victorians would have been appalled at such ignorance, the constitution was the apple of their eye. From Coleridge to Maitland they wrote at length seeking to explain its unique achievements.

Today it is a shattered thing. The most recent example:  The three main Westminster political leaders in the run-up to the Scottish referendum signed a “Vow” (written in fact by a previous prime minister Gordon Brown) saying that the Scottish Parliament “is permanent”. This means that the Scottish parliament – which came into existence through a referendum – exists based on the will of the Scottish people and cannot be abolished by Westminster without the assent of the Scottish people. Now if you are legalistic you can argue that on paper Westminster has not removed its sovereign or unilateral capacity to abolish Holyrood. But Dicey and Co were scholars of reality. In fact Westminster is no longer sovereign over the existence of the Scottish parliament. A fundamental principle of Victorian rule is now a dead parrot.

So the singular system of sovereignty is broken. Historically, it was broken when we joined the European Union and shared sovereignty with Europe. The coming referendum on membership of the EU will be an interesting moment. It is possible that England – they will try to make it the UK but in fact it will be England – might withdraw from the EU. If so, the English will regain sovereignty in a fashion. But it is very unlikely to happen. And if it does not happen membership of a system with shared sovereignty will become a permanent feature terminating the old order. Furthermore the UK with an un-codified constitution will exist within an actually codifying constitutional arrangement – the EU. This must make the British constitution ever more vulnerable; and people’s fear that they don’t know who rules them, or how, entirely justified.

Another apparently technical but actually principled question relates to the judges. The Victorian traditional constitution held that parliament is sovereign and that the courts couldn’t even ‘read’ Hansard, which is the name for the proceedings of parliament, to interpret legislation - as this would mean their judging parliament. This convention has been long overturned by the decisions of the higher courts. But take a look at the Constitutional Reform Act of 2005. This created what is now called our Supreme Court (removing the senior judges from the House of Lords). Section One of the Act refers to “the existing constitutional principle of the rule of law”.  Parliament passed this. But how does this constitutional principle sit with the constitutional principle of the supremacy of parliament? Does it now follow that that if parliament passed a statute law which in the view of the Supreme Court undermined the principle of the rule of law, it should be declared unlawful? 

For example, the Blair government tried to pass a piece of legislation saying that nobody seeking asylum would have the right to appeal against a decision on the grounds that the decision had been improperly carried out: it would have explicitly deprived them of the right of judicial review. The Commons to its shame passed it but House of Lords did not. However, Lord Woolf [Lord Chief Justice 2000-2005] told the Labour government not to pass that legislation, which would have possibly deprived people of their freedom without proper recourse to law. Quite possibly it would have breached the principle of the rule of law. Or take the legislation that is currently in place about what are called secret trials - there’s a lot of resistance to the implementation of this in the actual courts. If somebody was deprived of their liberty through a process whereby they’ve not actually been able to hear the evidence against them, which might now be possible, it is within the realm of possibility that the legislation which enabled this to happen would be challenged and could be struck down by the Supreme Court as having breached the now constitutional principle of the rule of law.

Lord Bingham, who was Lord Chief Justice 1996-2000, gave a lecture about the implications in 2006 and John Jackson has set out the arguments in openDemocracy. Simply put, what happens to the constitutional principle of the sovereignty of parliament if parliament has said that it is bound by the constitutional principle of the rule of law? If parliament says it acts under the rule of law this implies there is a set of rules – the rule of law – that is higher than the sovereignty of parliament as parliament acts within its framework.  

Today, therefore, the UK’s constitution – the Westminster system if you like - is constitutionally incoherent. It is a profound mess. Not just in terms of territory with Scotland or sharing sovereignty with the EU but at the heart of its own sovereignty.

All this might seem to be abstract and unimportant in terms of popular politics.  But I suspect the confusion over the true nature of our government ‘trickles down’. It gives an edge to the hysteria in the media as to what kind of country we are, or for example, to the BBC not being sure what it is for. We don’t know what the rules are because nobody knows what the rules are, because the basic rules no longer make sense.

The immediate source of all this was the far-reaching set of reforms the Labour government passed between 1997 and 2001, a set of very profound constitutional changes: A Scottish Parliament, the Welsh Assembly, the Mayor of London (all created by referendums); the independence of the Bank of England; the Freedom of Information Act; abolishing hereditary peers; the Human Rights Act; while at the same time refusing to offer the country a new settlement which made sense of these changes. The result was a disintegration of the old order which left the Executive with even more unaccountable power than before.

It’s a paradox. Wherever the reforms really decentralised power, whether to nations, judges or media using FoI requests, they worked. But from the point of view of old Westminster the success of partial reforms threatened the centre even more. A constitutional disintegration is taking place which is being compensated for by a modernisation of the deep state, the security services and surveillance which are, in my opinion, now the most immediate threat to our democracy, such as it is.

So you’re locating the crisis as being at the heart of the institutions of government themselves because of the lack of clarity around the relationships between them and who has the power. How do you think the newly elected Conservative government intends to address these issues?

This is a question I’m wrestling with and I’m not quite sure what the answer is yet.   One aspect of the election – which you may regard as a very sad aspect – is that ‘the system’ of the English state worked. The system won. A profoundly undemocratic electoral process generates decisive results from very indecisive voting. In 2005 it gave us a ‘majority’ Labour government on 35% of the popular vote. Now it has again delivered the State into the hands of a single party with a so-called mandate. That party therefore believes it has a right to do what it wants. There is still an acceptance by the British people that this is how we do things; it is, alas, seen as legitimate. So you could sit back and say, ‘Well, the system works. There is no constitutional crisis.’ And that is what we’re witnessing.

The Conservatives may feel there are constitutional problems, such as the need for better representation of England, but they see these as being solved by the majority bestowed on them by the electoral system. However to get where they are they’ve made various promises. One of these is the European referendum.

They want to stay in the EU. So do I. I think what our government ought to say is ‘this means we are going to become a different kind of country’. But the Tories will argue that they have now ‘renegotiated’ terms and this means it is in the “interests of Britain” to stay in Europe and, furthermore, that our sovereignty will not be fundamentally challenged. In my view they will seek to stay in Europe dishonestly by claiming that our country is unchanged by such membership.

And here the UKIP arguments of Douglas Carswell, while I don’t agree with his conclusion, are honest. I mean I think we should share sovereignty with the European Union and he’s against that. But he sees the issues truthfully. The government will pretend that significant sovereignty is not being shared and that we don’t need to worry about it. Theirs is an argument made in bad faith. It will probably win and if it does Britain will continue to suffer from a toxic constitutional culture.

Second, the Tories are in a real difficulty with replacing the Human Rights Act, if it means in any way withdrawing from the European Convention on Human Rights. For a start they are going to come up against the way the Scottish parliament and the Good Friday Agreement in Northern Ireland have the Human Rights Act as an integral part of their legislation. The Northern Ireland question is as important as Scotland here. It’s another obscure yet systemic constitutional conundrum.

 And they’ve just put that off in the sense that it didn’t appear in the Queen’s speech…

They’ve put it off challenging the Human Rights Act for the moment but they’re still committed.

One solution is for them to propose a federal constitution for the UK. This would allow a proper offer to Scotland as well as England. Being Tories they would seek to codify the existing constitution from above. From their point of view this would be intelligent and could be quite popular. It would also rub in the lost opportunity for the left, one which Ed Miliband, following Gordon Brown, threw away.

The Conservatives are capable of taking a wholescale initiative of this kind. But it runs a very big risk of having to let go. It is also difficult to see how you could constitutionalise the House of Lords. But they will not want to replace the House of Lords because it’s a wonderful vehicle for their own vested interests and network of legal corruption. Why should a group of people that have the British state in their hands possibly want to let go of it? Unless they are democrats. So in all likelihood they will reproduce the Blair-Brown approach of wanting to renovate the constitution while retaining the monopoly of power they are exercising in Westminster.

So, to try to answer your question, although the Tories have inherited the acute constitutional issues I have described it is likely they too will see them as tactical questions which they’ve got to get around or get past. They’ve got to win this referendum, fix those Human Rights, manage northern devolution, roll out English wallpaper in the Commons, but avoid a new constitutional settlement.

However, there’s Scotland. If you look at what’s happened in constitutional terms, it’s amazing. The British state has kept itself going through first-past-the-post, which resolved the divisions that exist within the country into extremely ‘strong’ governments. In a way the system lived by first-past-the-post. Now, in Scotland, it has died through first-past-the-post. Both the Conservative Party and the Labour Party would have a significant number of MPs from Scotland if there was a proportional electoral system and there would even be Lib Dem MPs. But in Scotland first-past-the-post has wiped them out. Because this has happened so suddenly, thanks to the winner-takes-all character of first-past-the-post, neither the London media nor the Westminster politicians have absorbed what this means. They still think of the SNP as outriders who may have come today but will go tomorrow. They are, however, the governing party in Scotland and have been for eight years, occupying the space of European style social democracy vacated by Labour. The result is that Labour will never recover north of the border. Perhaps in the long term – 15-20 years – the Conservatives may do so but only if there is a Scottish Conservative Party not a unionist Conservative Party. All of which means there is no longer any party of the Union represented across the Union. All constitutions are determined by how they are lived, all the more so if they are uncodified. The destruction of the Westminster representation of the three main union parties across the whole of the second country of the Union poses a hugely difficult constitutional challenge because  there is a dynamic now in play. First-past-the-post functions as a brutal unifying force as it vaporizes smaller parties. It was the old system’s form of gravity. In 2015 its impact was reversed and it is dividing Britain making first-past-the-post a centripetal not a centrifugal force for the Union as a whole.

 Should the Labour Party be in favour of proportional representation in order to shore up their influence in Scotland?

Labour should be in favour of PR because it’s a democratic electoral system and not for instrumental reasons. UKIP is in favour of it because it’s wiped out without it; it should have 80 seats with its 14% of the vote. In Scotland, the SNP got nearly 1.5 million votes and 56 MPs in May’s general election, Labour got over 700,000 votes in Scotland and just one MP. In terms of democracy the UK system is obscene. However, as I have said, it is used to force a coherence that hitherto has prevented not intensified disintegration. It still does in England but it is breaking apart the Union.

But it breeds dissatisfaction.

It may indeed breed dissatisfaction.  Lord Hailsham, who was Lord Chancellor under Heath and again under Thatcher, complained about an “elected dictatorship” in 1974 when the Tories lost. But he did not persist in his criticism when they won. So, yes, it breeds dissatisfaction but ‘dissatisfaction’ is just a form of whinging which can be easily ‘managed’. What has happened with Scotland is quite different. What previously kept things together in a forceful and unfair fashion, now is rending them apart - also in a forceful and unfair fashion. Labour will have to face up to the fact that it is now an English party.

So what do you think are the prospects for a citizen-led convention process in the UK and to what extent would the parties that are now in opposition be in support of such a process?

I think the prospects – which looked relatively promising before the election with the possibility of another hung parliament – are now unpromising. We’re probably looking at another ten years of Tory rule.  And the Tories are unlikely to open up the political system along these lines. It isn’t in their nature or character it would seem.

So the question then is ‘What are the prospects of the opposition parties calling for it?’ The SNP said that if it won the independence referendum it would have a popular-based constitutional convention in Scotland. It’s very unlikely now that it’s the third largest party in the Westminster parliament that it will seek to support a convention process for Britain.

The Liberal Democrats are, I think, dead in the water and unlikely to survive as a party. They could come out for a constitutional process of this kind. They ought to do so. It could give them a different, distinctive approach that might resuscitate them were anyone to believe them. [Note: since the interview on which this article is based took place, the Liberal Democrat peer, Lord Purvis of Tweed, has introduced a Constitutional Convention Bill in the House of Lords.] So what influence it would have is a hard to judge.

Will a new Labour leader and the Labour Party seek to embrace a process of this kind? I think it’s probably inconceivable under the leadership of Andy Burnham or Yvette Cooper who are creatures of the Blair-Brown years. It’s conceivable that a new leader from the new generation seeking a way forward could embrace these arguments. [Note: the interview on which this article is based took place before Jeremy Corbyn MP joined the Labour Party leadership contest]. But it’s quite profoundly against the Labour experience. Labour is a party of traditional government and it wants to get back in to govern in a traditional way. A call for a constitutional convention along the lines of some kind of Icelandic model but with the participation of some politicians would demand the Labour Party becoming a genuinely pluralist party, i.e. one that is not seeking to govern alone anymore. It would mean it becoming a party not seeking sole power, whose calling is no longer to capture the state in a single leap as it has done in ‘64, ‘97 and ‘45. Is this in Labour’s culture? It’s not what its about. So it’s quite hard to see how Labour could embrace such a cause.

The point is that calling for a democratic constitutional convention is about governing differently. Gordon Brown was enamored of the idea of a written constitution but he conceived of it as his personal policy. Probably, he wanted to write it himself! He wasn’t able to let go and trust in a process generated from outside parliament. He made Michael Wills a Minister of Justice and allowed him to argue the case but never supported it himself.

It would mean abandoning the patronising , corporate, unified Labourist approach. There are a very few individuals like Graham Allen MP who have understood this. It’s a very profound change in the whole culture of government and that’s why I think it can’t be done by a leader who has been formed in government. The party would have to have a different relationship to the public.

Next, the Greens. The Greens are the one growing party who have adopted this kind of constitutional approach and could implement it in a serious and effective fashion. They could become the party for constitutional democracy.

Finally, UKIP. A popular convention, a peoples’ process, must include 14% of the voters. Their one MP, Douglas Carswell, has written The End of Politics, probably the most sustained argument for popular-based democracy that any politician  currently in parliament has produced. He really is for letting go. The reason why he was regarded as a ‘maverick’ in the Conservative Party was that he believed in what he said when he said he was a democrat! He is also a modern democrat in terms of using the internet and making a reality of decentralisation and participation.

Yet it’s difficult to see – even though Carswell might be an interesting figure – that the people who fund UKIP like Richard Desmond owner of the Daily Express who gave them £1.3 million pounds before the last election would be interested in the party supporting a citizen-led constitutional convention process.

Sure, the commercial interests that seek to buy parties like UKIP are not looking for a relatively wise, self-confident democracy that would be able to govern the market in a way that is fair. But supporters of UKIP, with their sense of distrusting the political class, their sense that rules are being changed without them having any say, cannot be excluded from a democratic convention. It may be that it doesn’t produce the kind of outcomes you would like but then you have to say, ‘fine, that is democracy.’ It is true that a deliberative convention needs to protect itself from poisonous campaigns by the Daily Mail and the Daily Express. But we should embrace with enthusiasm the fact that millions of working class people now think the electoral system stinks.

Let me add this about UKIP and its nearly four million voters. It may not survive the referendum, which is likely to be a ‘Yes’. But as in Scotland the losing side can be energized creatively if the winning side is fundamentally defensive and even dishonest. It is possible that UKIP could emerge by 2020 as the main working class party of England led by a woman who has read Carswell’s books, i.e. not Nigel Farage, and is modern and forward-looking and not showing an ankle to racism and homophobia. A party, in other words, seen by many as being to the left of the Labour Party and committed to a lot more democracy. I’d like this party, if such a one emerges, to be the Greens but whether or not it is depends a great deal on what happens in Europe itself in the wake of the Greek crisis.

So the Greens and UKIP. What about other civil society actors who might play an important role in pushing for a new constitution written by the people for the people?

Labour should be. Or there could be an alliance of forces, mayors etc. I think it will be a very popular idea. The heart of the argument is that the restructuring of the way Britain is ruled – whether it is inside or outside of Europe – is that it needs a new constitutional settlement. We need it so people can believe in what the country is about. And we need it because the existing structure is broken. We need it to defend our liberty from arbitrary power. That’s what we should be pushing for and arguing for.

A convention because you cannot leave it to parliament to rewrite a system in which it has such an enormous vested interest. Of course, Parliament as a legislature may well be strengthened in any democratic constitution, as the existing one is crippled by the Executive. But both symbolically and because it is the Executive itself that will be threatened by being held to account, the Commons cannot be the body that creates the new order.  We need the House of Commons and the House of Lords to legislate into existence a democratic convention empowered to propose a new constitution articulated in a referendum (which may have a number of questions). They need to legislate in advance that the outcome of the referendum will become our new constitutional framework. This then will be founded on popular sovereignty rather than the sovereignty of parliament, that is rooted in the epoch of absolutism. Stuart White has set out the issues of a convention with admirable clarity.

Is that the lesson that we can take away from what happened in Iceland where the parliament set in motion a process whereby it was the citizens who drafted a new constitution for their country?

One of the things that Iceland shows is that well-run deliberative processes can create constitutional assemblies representative of the people that come through with the sets of rules and principles of government. Regular people have the wisdom to do this just as juries have the wisdom to come to views in trials. It has to be process driven. It is not ‘a mob’. People have the capacity to take these decisions.

Iceland also shows that you need to engage with the politicians so that this process is seen as a solution for them and not simply against them. Also, politicians need to grant a constitutional convention the power to call a binding referendum. Otherwise they will sabotage it.

That’s a difficult one if, as you suggest, we end up with an extended period of Tory rule. Is there a role for civil society here? Is there any way people and popular pressure can help move this up the agenda?

Enormous opportunities are going to open up because of the incoherence of Tory policy. But it means making a ‘knight’s move’ not just saying ‘I’m opposed to austerity’ – in the way, for example, the Peoples’ Assembly have done with no fresh thinking about democracy. People are still thinking along the old tramlines, that’s the problem. So if there was a movement against austerity and a movement against the £12 billion of welfare cuts, linked to a view on the EU referendum and the defence of human rights and modern liberty, all articulated in a call for a citizens constitutional settlement, then you could have a very powerful civil society movement which could sweep Labour and the Lib Dems along with it. But you’d need imaginative political organisation to do that.

That’s an interesting prospect.

The heart of the argument is this. You can no more get liberty or democratic outcomes, from the British state than you can get milk from a vulture (as Neal Ascherson once said). So those people who are engaging in different civil society movements and NGOs whether its on taxation, poverty, stopping austerity, saving the NHS, electoral reform, against surveillance, or even the reform of Europe, should understand that part of the problem they’re up against is the nature of the British state. Labour has always said that the solution for progressives is to capture the British state. This is the Fabian answer: capture the state and deploy its powers to progressive advantage. The Lib Dems too. But long experience shows that here in the UK the State captures you. What works for neo-liberalism does not work for those who want to tame corporate power. We have to have a democratic, constitutional state for there to be any hope of either modern liberty of a democratic economic outcome. It is not a guarantee, of course. It is simply a necessary pre-condition. At the same time it is the only way to address the disintegration of self-belief in our society. 

You could argue then that Tory rule could offer an extended opportunity to explore such an alliance because of what is likely to be ongoing constitutional incoherence. Not so much a “democratic moment” as a five-year opportunity to get our act together…

That seems like a nice way of wrapping it up.

(Note: This interview is based on an original conversation between Phil England and Anthony Barnett but has been revised for publication.)

See The Independent for Phil England's accompanying overview of the current situation in Iceland.