A codified constitution for Britain?

Vernon Bogdanor, Professor of Government, Oxford University

Is it time for Britain to have a codified constitution as so many other countries already do? Would it be so hard to bring disparate British legislation together in a single document?

The British constitution, it is often said, is unwritten, but this does not mean that the rules describing the powers of government and the rights of the citizen are passed down from
generation to generation by word of mouth. Many, if not most, of these rules are, of course, written down in the form of either statutes or judicial decisions. The Parliament Acts of 1911 and 1949, for example, regulating the powers of the House of Lords, or the Constitutional Reform Act of 2005, regulating the role of the Lord Chancellor and of the judiciary and
appointments to it, are important parts of the British constitutions and are most certainly written down.

Enacting a codified constitution

The real difference between Britain and almost every other democracy is that in Britain the various constitutional rules have not been brought together in a single document. They are not codified, but scattered. Many would say that this is anachronistic, and that it is time the British fell into lime in producing a codified constitution. The Liberal Democrats have long held this view; and Gordon Brown, both as chancellor of the ex-chequer and as prime minister, has called for a debate on the issue. There is growing support in political circles for the enactment of a codified constitution.

It would not be difficult in principle to draft a constitution, to bring together the relevant statutes and judicial decisions into a single document. In the autumn of 2006, I held a seminar with a colleague , Stefan Vogenauer, Professor of Comparative Law at Oxford, to do exactly that. We held weekly meetings at which small groups of students, both graduates and undergraduates, prepared drafts of part of the constitution e.g. the legislature, the judiciary, human rights. These were then discussed and amended by the seminar. The end result can be found in a book, edited by Christopher Bryant MP, Towards a New Constitutional Settlement, published by the Smith Institute and in the Political Quarterly (2007).

The historic constitution

Before considering whether Britain ought to enact a constitution, it is worth asking why it is that we do not have one. The reasons lie deep in British history. They relate both to our evolution as a society and to the way in which our political system is structured. The reasons are both historical and conceptual.

Almost all codified constitutions are enacted to mark a new beginning. They are enacted when states attain their freedom, wither from an external ruler or from an old regime. The constitutions signifies a fresh start. That was the case for example, with Italy in 1948 and Germany in 1949, when they drew up new constitutions following defeat in war and the destruction of the previous Fascist and National Socialist regimes; and with India, whose constitution was enacted in 1950 shortly after achieving independence from British rule. In Britain, however, there has been no such obvious break in our constitutional development since the 17th century.

Our constitutions has remained uncodified precisely because we appear never to have had a genuine “constitutional moment”. There has been no fundamental change in the nature of the English state since the time of Oliver Cromwell and the brief period of republican rule which lasted from 1649-1660. Cromwell did indeed draw up, in 1653, a codified constitution, an Agreement of the People, and this is perhaps the first codified constitution in modern European history. Yet, the republican interlude was followed by what was significantly called the Restoration—not another new beginning, but the return of a traditional institution, the monarchy. It is precisely because there has been no sharp break in our constitutional history since the 17th century that we have felt neither the desire nor the need to enact a constitution.

Dicey’s view of the constitution

One of the most penetrating writers on the British constitution was the great Victorian scholar, A. V. Dicey (1835-1922) who was the Vinerian Professor of Law at Oxford University from 188201909. Dicey argued that the British constitution was unique in being a ‘historic’ constitution. By this he meant not only that it was very old, but also that is was original and spontaneous, a product of historical development rather than deliberate design. This is a view that has been echoed by many other writers on British government. In The Governance of England [sic], 1904, the author, Sidney Low, wrote: “Other constitutions have been built; that of England has been allowed to grow”. Our constitution, Low declared, was based not on codified rules but on tacit understandings, although as he ruefully remarked, “the understandings are not always understood”.

Parliamentary sovereignty

In addition to this historical reason why we do not have a codified constitution, there is also a conceptual reason—that the fundamental, perhaps the only principle behind our system of government has been the sovereignty of Parliament, the idea that Parliament can legislate as it chooses an that here can be no superior authority to Parliament. Dicey, who was the first to draw out the consequences of the doctrine of the sovereignty of Parliament, believed that the roots of this idea lay “deep in the history of the English people and in the peculiar development of the English [sic] Constitution’ (Dicey, 1959).

If Parliament is sovereign, there is no point in having a codified constitutions, for part of the purpose of such a constitution is to limit the power of the legislature. Constitutions serve to demarcate provisions which are fundamental and are included in the constitution from provisions which are not fundamental and not part of the constitution. The fundamental laws can usually only be amended through some special procedure, over and above that of a simple majority vote in the legislature. In the USA, for example, constitutional change requires the support of two thirds of Congress or three-quarters of the states.

In some constitutions, there are more provisions which are regarded as so fundamental that they cannot be amended at all. The first 20 articles of the German constitution providing for the basic rights of the citizen and the federal form of government cannot be amended in any way whatever. Thus, in countries with enacted constitutions, it is normally not parliament, the legislature, which is supreme, but the constitution. Indeed, Article VI, Clause 2 of the US Constitution specifically provides that the constitution is the “the supreme Law of the Land”.

Fundamental Law

In Britain, there has been no such thing as fundamental law, at least until recently. There is but a single process for all legislation, whether it deals with something fundamental, for example the powers of composition of the House of Lords, or with more parochial matters such as, for example, municipal drainage—and all voting is by simple majority.

In the 19th century, a distinguished French observer, the political theorist Alexis de Tocqueville, remarked, in his book, Democracy in America, that in Britain, “the Parliament has an acknowledge right to modify the constitution; as therefore, the constitution may undergo perpetual change, it does no in reality exist; the Parliament is at once a legislative and constituent assembly”. In Anthony Trollope’s novel, The Prime Minister, the Duchess of Ominum declares that “Anything is constitutional or anything is unconstitutional, just as you choose to look at it”. Trollope goes on to remark: “It was clear that the Duchess had really studied the subject carefully”.

The British constitution could thus be summed up in just eight words: “What the Queen in Parliament enacts is law”. It is because the sovereignty of Parliament has been seen as the central principle of the British constitution that it has always seemed pointless to draw up a codified constitution.

Challenges to parliamentary sovereignty

Since 1973, however, when we joined the European Community, as the European Union was then called, parliamentary sovereignty has come under challenge. The powers of Parliament are clearly limited by the European Union, by the devolution legislation and by the Human Rights Act. Lawyers argue about whether Parliament is still legally sovereign. But, even if Parliament remains sovereign in form, it is no longer sovereign in practice. To put the point another way, the legal sovereignty of Parliament no longer corresponds, as it once did, with the real exercise of unlimited political authority. The authority has now been dispersed, both “upwards” to Europe, “downwards” to the devolved bodies, and “sideways” to the judges. In addition, the reforms of the Blair government have codified so much of the constitution—the relationship between Parliament and the devolved bodies, the relationship between Parliament and the courts—that there seems no real reason why we should not codify the rest and produce a constitution.

Right idea, Wrong time

There is therefore, a strong case in principle for a codified constitution but nevertheless, now might not be the best time to produce one. That is so for two reasons. The first is that the process of constitutional reform remains incomplete. Ron Davies, when Welsh secretary, said of Welsh devolution that it was a process not an event. The same has turned out to be true of constitutional reform as a whole. We have been doing something unique in the democratic world, converting an uncodified constitution into a codified one in a piecemeal and ad hoc way, rather than at a single-stroke, as has been the case with almost every other democracy. That is partly because there is comparatively little public interest in constitutional reform, but also because there is no real agreement on what the ultimate resting-place, the final shape of the constitution should be. Is there an answer to the “English Question”? What are to be the composition and powers of the second chamber? Will the electoral system for the House of Commons be changed? These questions and many others, remain unsettled.

There is a second and even more fundamental reason why now might not be the best time to produce a constitution which is that a good constitution should, ideally reflect society. But the British constitution as it is today does not do so, because the institutional forms of our political system are no longer congruent with the main social forces at work in the country today.

The first phase of constitutional reform under the Blair government from 1997-2007 might not unfairly be described in terms of the officer class deciding how to divide the spoils. It provided for a redistribution of power between elites—between politicians at Westminster, Edinburgh and Cardiff, and between politicians and judges. This redistribution of power is, of course, of great value. Hobbes once said that liberty was power cut into pieces, but this first phase did not give more power to the people. Ordinary voters, living in England, who did not want devolution and hoped not to have to use the Human Rights Act because they wanted to keep out of the hands of lawyers, would have derived little benefit from the reforms. The next stage, surely, is to redistribute power from the elites to the people.

Conclusion

As long ago as 1992, when in opposition, Gordon Brown wrote a Fabian pamphlet in which he said “In the past people interested in change have joined the Labour Party largely to elect agents of change themselves”. Yet our system of representative democracy, developed during an era of tribal politics, keeps the people at bay. That, no doubt, is one reason for popular disenchantment with politics and distrust of politicians. Survey evidence indicates that popular interest in politics is as great as it was 40 years ago; but participation in politics is far less. The democratic spirit is healthy; it is the institutions of democracy that are wanting. The next phase of constitutional reform, therefore, is likely to involve new forms of democratic engagement, particularly perhaps, an extension of direct democracy at local level, devolution not just to institutions but to the people—”double evolution”, as David Miliband has called it.

Making our institutional forms congruent with these new political forces is the most urgent task facing government today. Only after that will it make sense to draw up a British constitution.

References and further reading

Bogdanor, V., Khaitan, T. and Vogenauer, S. (2007) “Should Britain have a written constitution?”, Political Quarterly, Vol 78, No 4

Bryant, C. (ed.) (2007) Towards a New Constitutional Settlement, The Smith Institute
www.smith-institute.org.uk/publications.htm

Dicey, A. V. (1959) Introduction to the Study of the Law of the Constitution, 10th edn, Macmillan