Why Britain needs a written constitution

Last November, a Conservative member of parliament, Charles Walker, addressed the House of Commons on the need for “a written constitution”, one that would guarantee “fundamental rights” for inhabitants of the UK and be enforced by its Supreme Court. The response of the prime minister was dismissive: what the British people wanted, Boris Johnson declared, was not “delectable disputations on a written constitution”, but the defeat of coronavirus.

Johnson took a similar line in Scotland this January. Scottish Nationalists should stop their “pointless constitutional wrangling” over a further independence referendum, he insisted. “The people of Scotland” just wanted an end to the pandemic.

Such exchanges are a product, in part, of current pressures and issues. At one level, the present British government’s seeming disregard, at times, of opinion in parliament and among the judiciary has troubled even some of its own Conservative supporters. More fundamentally, the 2016 referendum on leaving the EU, which failed to secure majority support in Scotland, Northern Ireland or in most of England’s largest cities, has amplified discussion of a possible break-up of the United Kingdom, and of how — if at all — this is to be avoided.

Yet these debates also need to be understood in far longer contexts. There are, for instance, some traditional roots to Johnson’s recent language in response to demands for more systematic constitutional change.

Constitutionally, the UK operates ‘in a trackless desert without map or compass’

Over the centuries, those opposed to constitutional innovation in Britain have repeatedly claimed that its inhabitants are too innately pragmatic and commonsensical — and too fortunate — to bother about such highfalutin and abstract matters.

Take the 1792 populist bestseller Village Politics by the evangelical conservative Hannah More. Wanting to defuse rising British interest in the French revolution and its works, she imagined a dialogue between Tom, a radical artisan, and Jack Anvil, a conservative blacksmith. “I want a new constitution”, More has Tom declare. “Indeed,” replies the more adroit Jack: “ . . . Send for the doctor then.” A written constitution, Jack continues, is a recipe for chaos, and also intrinsically alien — a device of the French that by definition does not belong in Britain. His foray into political experimentalism duly quashed, Tom submits, and he and Jack retire patriotically to the pub.

The more positive side to such customary polemics has often been the claim that Britain does not require a codified constitution because its own political system is efficiently adaptable and essentially internalised. “Our constitution is the air we breathe, the restless blood that circulates in our veins”, rejoiced a conservative journalist in 1832. The best constitutions were not “made of paper”, he went on, but inscribed — as was blessedly the British case — on the heart.

Even in the 1950s, two senior jurists felt able to assert that “the formlessness of the British constitution has long been a matter of congratulation”. Other nationalities might have to fossick for their constitutions “at a booksellers”. “Our own tale”, wrote these eminent commentators, was “very different”. Yet Britain’s constitutional experience over time has by no means been as straightforwardly different as is sometimes supposed.

To be sure, the British state seems like an exception to what in recent centuries has been a major global trend. Law codes and rules of government were ancient foundations of many cultures. But from the 1750s, the rate at which different countries adopted single-document political constitutions began consistently to accelerate. By 1914, constitutions of this sort operated in parts of every continent outside of Antarctica. The two world wars further speeded up the spread. Now, in the early 21st century, close to 200 codified constitutions exist across the globe. Those few countries still without a single document of this sort, such as Israel, Sweden and New Zealand, nonetheless generally possess significant texts to do with rights and power that have the status of fundamental laws.

To this extent, the UK’s situation is indeed distinctive and deviant — though this is not because it lacks constitutional documents; one of its problems is that it possesses too many. There are ancient, iconic texts such as Magna Carta and the Bill of Rights. There are centuries of statute law and accumulated conventions. There are also more recent enactments, many of them generated by Tony Blair’s governments to implement devolution: the Government of Wales Act, the Scotland Act, the Northern Ireland Act, along with the Constitutional Reform Act of 2005.

But, critically, this wealth of accumulated paper and parchment has not been sieved and condensed into a single codified constitution. Even for legal experts, it can be hard therefore to get a firm grip on how the UK is governed — and on how it should be governed. In the words of the late law lord, Tom Bingham, constitutionally, the UK operates “in a trackless desert without map or compass”.

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How has this come to pass? The idea that miscellaneous Britons are by nature too matter-of-fact ever to turn their minds to “paper constitutions” is partisan and manifestly wrong. Sectors of these islands were in fact conspicuously pioneering in devising modes of written constitutionalism. During the civil wars and brief republican experiments of the 1640s and 1650s, members of the New Model Army — the formidable fighting force that defeated Charles I — pressed for a written and published Agreement of the People signed by “every Englishman”, to bring about the subordination of the Westminster parliament to the people’s declared will and objectives.

In 1653, Oliver Cromwell went on to draft an Instrument of Government, to apply throughout Britain and its colonies. “In every Government”, Cromwell insisted, “there must be somewhat fundamental, somewhat like a Magna Charta, that should be standing and unalterable”, something that the Westminster parliament could not by itself bypass. A further outbreak of major military violence here, a Dutch invasion in 1688 that ousted another monarch, also led to the passing of a Bill of Rights, a title for a liberty document later adopted by the US.

In the past, therefore, episodes of innovative constitutionalism in Britain have often coincided with periods of extreme armed violence that have forced disruptions to the domestic status quo. In this respect, the British experience is actually typical. One reason why constitutions multiplied so rapidly after 1750 was that the scale, cost and fervour of warfare thereafter increased markedly.

At one level, there was a succession of epic revolutionary wars, in America after 1776, in France after 1789, in Central and South America from the 1810s, in Japan after 1868, in Russia after 1917, and so on. All these explosions shattered pre-existing political regimes and led to the creation of written schemes for their replacement.

At another level, unprecedentedly large wars of conquest — think Napoleon Bonaparte — led to new constitutions being imposed as a means to organise and regulate territory gained. At yet a further level, shattering military defeats have repeatedly resulted in the conceding and crafting of new constitutions. This was true in West Germany, Japan and France after the second world war. Britain’s earlier, humiliating defeat in Singapore likewise hastened India’s independence and quickened the writing of its huge and important constitution adopted in 1949.

The UK does not lack constitutional documents; one of its problems is that it possesses too many

There is another reason why the imperatives of modern warfare progressively obliged states to provide for wider rights by means of some kind of written charter and contract. As Max Weber remarked, a rising need to impose military discipline gradually helped to bring about “the triumph of democracy”. Mobilising the massed manpower demanded by more mechanised warfare, plus the burdens of higher wartime taxation, frequently worked to drive up popular pressure for concessions and to compel governments to issue new constitutional legislation.

These frequent and intimate links between patterns of destabilising conflict on the one hand, and the issuing of a single-document constitution on the other, do much to explain why the UK still lacks a version of the latter. After its precocious constitutional inventiveness in the 17th century, the island of Great Britain never experienced a successful armed invasion or a revolution. Nor, for all its many wars, did it experience, after 1700, a military defeat so shattering that it undermined its own domestic government. (Although the Irish Easter Rising of 1916 — itself facilitated by war — did lead to a redrawing of the UK’s boundaries and to new constitutional writing in Dublin.) In addition, because the UK could for so long draw on its imperial manpower, especially South Asians, it had less need than many other states before 1916 to offer systematic political concessions on paper in return for implementing conscription.

But why, some may still ask, should all this history matter now? Even granting that the UK faces particular challenges, could novel constitutional projects and writings be essentially distractions, mind-games mainly of interest only to legalistic minorities?

Not really: and it is surely significant, in spite of all the undoubted limitations and frequent failures of this genre, that few states that acquire a codified constitution subsequently decide to dispense with one. This is because written constitutions frequently do more than simply setting out on paper specific legal and political provisions. They supply a way of shaping and proclaiming a country’s desired brand. Just think how Ireland has been able to use recent constitutional amendments in support of abortion and same-sex marriage to proclaim and advertise its modernity and its liberation from previously strict Catholic tutelage.

A written constitution can also serve as a valuable totem for a population, especially one under pressure. Think of how young, oppositionist Indians have been rediscovering their constitution in reaction to prime minister Narendra Modi’s excesses in Kashmir and elsewhere. As this suggests, a recognised constitution that is available on paper (or a screen) can provide an informational and reference guide for civilians, as well as politicians and lawyers. Once well-understood in the UK, this point has been allowed to recede.

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Although modern Britain has never had a codified constitution, for a long time a careful cult of its constitutional history served some comparable functions. From the early 1800s, books on this subject increasingly proliferated in these islands, and were distributed across the globe. This achieved two things. First, works of this sort helped to promote certain British political and legal systems across frontiers. Second, since constitutional history was assiduously taught in schools and universities, future politicians were likely to obtain some advance information on how the British system of government supposedly functioned.

So, too, were large numbers of the general population. Books such as AV Dicey’s classic Introduction to the Study of the Law of the Constitution and David Lindsay Keir’s Constitutional History of Modern Britain Since 1485 thus operated, as one legal scholar puts it, as “a kind of constitutional code for want of a written constitution”. But, since the 1960s, even this pale substitute has waned. Constitutional history has dropped out of the curriculum.

This reduction in knowledge is damaging because, in recent decades, changes in the nature of UK government have intensified sharply. Since Margaret Thatcher, prime ministers have become more presidential in style and behaviour, guarded by special advisers, not just civil servants. This matters all the more, because the UK’s constitutional conventions and statute laws have comparatively little to say about constraints on executive power.

To be sure, there is the Cabinet Manual, created in 2011, but that is not a statute with the force of law. Even in the 1860s, Walter Bagehot was already sceptical about how far a supposedly sovereign parliament could really operate as an effective brake on governments. He put his faith instead in the cabinet, a “board of control”, which, he believed, efficiently regulated the UK. Yet how far can an inexperienced, politically monochrome cabinet really function in this fashion, faced as it is with an ambitious prime minister possessed of a large House of Commons majority?

The essential problem is not devolution itself — but rather that this process remains seriously incomplete

Simultaneously, the advent of devolution, and the emergence of the Scottish Parliament, Welsh Senedd and the Northern Ireland Assembly, have made the governing structures of the UK more volatile and harder to understand. The essential problem is not, as some would have it, devolution itself — but rather that this process remains seriously incomplete. No comparable, separate agency has been offered to England; and there is no thought-out federal system that would have, as a necessary concomitant, a written constitution setting out how this system interweaves and is supposed to function.

In some ways, these present-day challenges echo past controversies. From the 1860s, and the onset of Home Rule agitation in Ireland, the prospect of this being a preliminary step towards a new, federal organisation of the UK as a whole was widely and repeatedly canvassed, even by major figures. He saw no real difficulty, wrote Winston Churchill in 1912, “in setting up a thoroughly workable federal system”. Had the first world war not intervened, and certainly had Britain been defeated, Churchill might have been proved right.

But what of UK politics and politicians now? For none of its three main political parties is wide-ranging constitutional reform an immediately compelling agenda. The Scottish National party wants to leave the UK, not improve its working. The governing Conservative party is unusually doctrinaire, and seemingly more intent at the top on increasing than on regulating executive power.

The Labour party should be more responsive. Its former leader, Jeremy Corbyn, commissioned a report, Remaking the British State, which recommended a federal system and a written constitution. Moreover, espousing constitutional reform and greater political liberties would be a way for its current leader, Sir Keir Starmer, to carve out and lay claim to a distinctively reforming brand of patriotism. But he would still have to contend against ingrained, exceptionalist arguments that systematic constitutional change is too niche, elitist and alien for commonsensical Brits.

And the fact remains that over the centuries and in all continents it has usually required a major trauma of some kind — military defeat, civil war, the demands of conquest, revolution or the fear of it, or a successful struggle for independence — to persuade busy and self-interested politicians to run the risk of devoting extensive time to thoroughgoing constitutional change. This, however, may be where the long-term backwash of Brexit comes into the mix.

If Scotland secedes from the Union, the SNP promises to introduce its own codified constitution. If a depressed Northern Ireland rejoins the rest of the island of Ireland, this in turn is likely to lead to a new Irish constitution. Where might all this leave Wales, where interest in independence is now on the rise?

And what of England itself? A sense that the English had been short-changed by devolution formed part of the disgruntled nationalism that fed into Brexit. But the latter crisis has in turn created further fissures and strains within England as in the rest of these islands. One must wonder how creatively London in the future will move to address these rifts and prevent a possible implosion.

With only limited economic resources available post-Covid to distribute as a means to reunite and win over, will more sustained thought now be given to words on paper? Brexit may just prove the constitutionally transformative traumatic conflict that the island of Great Britain has managed to evade since the 17th century.

Linda Colley’s ‘The Gun, the Ship, and the Pen: Warfare, Constitutions and the Making of the Modern World’ is published this week by Profile Books

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