Constitution needed

Whatever the eventual outcome of the Brexit mess (at the time of writing it could still be May’s Deal, No Deal, or No Brexit) what it has conclusively demonstrated is that the British “Constitution” is not fit for purpose.

I used inverted commas to enclose the word “constitution” since – pace Bagehot, Dicey and Erskine May – it is not a proper constitution at all, but rather it is a collection of Acts of Parliament, international treaties, learned texts, Speakers’ rulings, and evolving political conventions.  It is not codified – that is, it is not set out in a logical and coherent manner in a single document. It is not internally consistent, fails to cover some important issues and offers no agreed mechanism for resolving disagreements.

Parts of it are not even generally available: for example, the current edition of Erskine May (originally a treatise written in the 19^th century by a Clerk to the House of Commons) is copyright and only available¹ to the general public at a cost of £329.99. 

Flaws and gaps

Brexit has exposed and drawn attention to many of the flaws and gaps in the UK’s constitutional arrangements.  Here are some examples (not an exhaustive list):

·  The power of Parliament in relation to the Executive.  The standing orders of the House of Commons give to the Government effective control of the parliamentary agenda and timetable.  In theory these standing orders could be amended, but when the relevant standing order was recently suspended to give the House temporary control of its own agenda, this was regarded by some as a constitutional outrage.  The consequence of observing these conventions is that Parliament is impotent in the face of a government determined to drive through its policy.  (In some constitutions (e.g. France, USA), the Executive is not allowed to be in the legislature – is this an appropriate model?)

·  The role of the monarch.  If a future prime minister were to request the proroguing of Parliament (against the wishes of Parliament), what is Her Majesty supposed to do?  (Presumably she is mindful of the struggle between King Charles I and Parliament in the 17^th century).  Some authorities say that she must comply with the prime minister’s request.  Others say she should consult other advisers – such as the Speaker of the House of Commons or the Leader of the Opposition (especially if the prime minister does not have a majority) – and perhaps decline the request.  This is to sidestep the question of whether our head of state should be a hereditary or an elected position, but the same issues would arise in either case.

·   Similarly, what if the Government loses a vote of confidence under the terms of the Fixed-term Parliaments Act (FTPA)?  Should the Queen invite somebody else to form a government?  If so whom?  Some discretion is probably needed, but there ought to be clear guidelines to follow.

·  The extent of the Royal Prerogative is also controversial. In reality this has nothing to do with the monarch but is a fiction that allows ministers to act in the name of the monarch in, for example, making treaties, deploying armed forces, declaring war, appointing judges, bishops and life peers, conferring honours, or pardoning convicted offenders.  However, an attempt to use the Royal Prerogative to serve Notice under Article 50 was challenged in the courts and the Supreme Court eventually ruled that Parliamentary approval was required. (For this ruling the judges were denounced by certain popular newspapers as “enemies of the people.”)

·  The status of referendums vs Parliament.  Are we a Parliamentary democracy or a direct democracy? In a conflict, who prevails?  Was the 2016 referendum an irrevocable instruction to the legislature to carry out the “voice of the people”?  Or was it an opinion poll, carried out on a particular day 3 years ago based on limited information with a narrowly decisive result, that the legislators should take into account when using their best judgement as to the national interest?

Other defects in the constitution

Quite apart from Brexit, there are other features of the British “Constitution” that are not fit for purpose in the 21^st century – for example:

·  The House of Lords.  Its composition is such an absurd and anti-democratic anachronism that (by convention) it does not dare to use its powers to obstruct Government business, contenting itself with a “revising” role.  But do we really need it at all?  If it were reconstituted on a democratic basis, it would inevitably acquire more authority (certainly moral and possibly legal) and it could challenge the House of Commons – perhaps resulting in the sort of gridlock we see in the USA.  Do we want that?  Why not just abolish it and operate with a single chamber of Parliament, as many democratic countries, such as Sweden, Scotland and New Zealand, manage to do perfectly well?

·  The voting system.  If the House of Lords is abolished, it is all the more important that the House of Commons should be genuinely representative.  At present, under the First Past the Post system, it is possible for a political party to win an overall majority of MPs with less than 40% of the popular vote.  Thus did the Thatcher and Major governments push through deeply unpopular policies, such as the “poll tax”, privatising public utilities and the railways, against public opposition.  Similarly the Blair government and the Iraq war.  This would be less likely to happen if governments had to comprise parties that were supported by a majority of the electorate.

·  Devolution and the status of local government.  Under the doctrine of Parliamentary sovereignty, local government is the creature of central government.  Thus, councils such as the GLC, the West Riding or Merseyside County Councils could be and were created or abolished by Parliament, for they had no powers or independent finance without the specific authority of Parliament under the supervision of ministers.  The same is even true of the devolved Parliaments: the Northern Ireland and Welsh Assemblies and the Scottish Parliament.  As a result there are frequent complaints that the UK is overcentralised – to the detriment of the northern and western nations and regions of the UK.

A constitutional convention?

So what can be done about it? 

What we should not do is what has traditionally been done in the past – that is, make piecemeal or incremental (and often partisan) changes as problems arise.  A recent example is the Fixed-term Parliaments Act (FTPA), which was a condition of the Liberal Democrats’ participation in the 2010-15 Coalition Government.  This measure, which abolished the Prime Minister’s exercise of the Royal Prerogative to dissolve Parliament, was designed to protect the Liberal Democrats from being ambushed by a snap general election.  Although the 2015 Parliament did indeed last the full five years, the FTPA did not prevent the calling of a snap general election in 2017.  On the other hand it has protected the government from collapse even though its flagship legislation (the EU Withdrawal Bill) was defeated.  Arguably, this has led to the paralysis of government.

What this account shows is that tinkering with discrete bits of the constitution can have unintended consequences.  Constitutional changes need to be thoroughly thought through and assessed in terms of their effects on other parts of the constitution.

Surely, what is needed is a constitutional convention representing a wide range of political viewpoints and informed by the best available international constitutional experts drawing on best practice from around the world.  Only in this way would we be likely to end up with a constitution fit for the 21^st century.

©   2019  Robin Paice

¹ Since I wrote this it has emerged, in the course of Business Questions to the new Leader of the House of Commons, that as from 2 July Erskine May has at last been made available online and can be found at https://erskinemay.parliament.uk/.

However, it is not published as continuous text but as searchable section and chapter headings.