Continuing my series of posts charting different aspects of the UK’s potential territorial break-up, which began with my thoughts on the Brown Commission report and continued with my discussion of the House of Lords Select Committee on the Constitution’s report on the future of the UK, I look here at the September 2023 report of the Institute for Government and the Bennett Institute for Public Policy, ‘Review of the UK Constitution’ (available here). In contrast to those other two reviews, this one is not primarily geared to ensuring the continued future of the UK as a union but more or less takes that for granted. Therefore, there is not so much content directly concerning the devolution settlement, although I’ve tried to cover what there it is. However, a lot of what is discussed in the report has indirect relevance. For a start, the temporal framing implicitly suggests that the current problems date from the devolution settlement, or at least the election of New Labour:
The quarter century since the Labour Party took power in 1997 has been a period of considerable constitutional change in the UK. As constitutional expert Sir Vernon Bogdanor points out, Labour promoted a brand of constitutional modernisation centred around the establishment of a fixed bill of rights in the form of the Human Rights Act 1998, the devolution of power to Scotland and Wales and the establishment of a Supreme Court. Under subsequent Conservative-led governments, there have been further momentous changes – most notably the UK’s departure from the EU and also the establishment (and subsequent abolition) of fixed-term parliaments and the rules known as English Votes for English Laws (EVEL) in the House of Commons. (p.16)
As I have discussed in my analysis of the report of the House of Lords Select Committee on the Constitution (linked above), the history of these changes is much longer, dating back to at least the 1960s. While there is a constitutional crisis today, it wasn’t caused by the devolution settlement, which was itself an attempt to solve the constitutional crisis that was already apparent in the 1960s. A further section of the report, discussing the system of ‘checks and balances’ forming part of the constitutional system in the UK, summarises the mechanisms in place for intergovernmental relations within the UK:
The devolved governments in Scotland, Wales and Northern Ireland can object to UK government policies in various ways, including through intergovernmental forums, through public comment, by launching a formal dispute or, in certain circumstances, through recourse to the Supreme Court. In theory, a decision of one of the devolved legislatures to refuse legislative consent for a UK bill affecting devolved matters can put pressure on the UK government to address its concerns. Local leaders and metro mayors can also influence the government and parliament through formal and informal channels. A prominent example of subnational governments placing effective political pressure on the executive was in the passage of the European Union (Withdrawal) Bill, when the Welsh government managed to secure the UK government’s commitment to the ‘common frameworks’ process after publicly criticising the initial legislation. (p.18)
Many people would see this as a somewhat rosy-tinted view of the situation, but later in the report, as we shall see below, the analysis is a bit harder-edged
Unlike the Brown and HOL reports, this report does at least ask the question of ‘Should the UK have a written constitution?’ and provide a discussion of this point. However, the discussion is not particularly satisfactory in the sense that it doesn’t amount to a reasoned argument and instead consists of a list of minor quibbles, such as the following: ‘At present, there is little evidence of much public interest in a written constitution. There is no significant campaign for such a documented constitution (although there has been in the recent past) and neither of the two major political parties endorses the idea’ (p.23). Well to start with, the fact that neither of the two major political parties support the idea is not really objective evidence of anything other than that they are very happy with, and generally collude to support, the pretence that there is a binary system in the UK (which there isn’t, unlike in the US). Furthermore, I don’t know how many constitutions have been written in response to spontaneous public demand, but I suspect the answer is not many. Therefore, I don’t think the absence of public demand is in itself proof of anything. I can imagine a situation in which the public might well choose a draft constitution offered to them over continued chaos and evident corruption. The assumption underpinning this section of the report is, that staple of British exceptionalism, that nothing is really going to change. We are told that, ‘Closer to home, recent debates over Brexit and Scottish independence have shown how constitutional contestation can lead to wider paralysis in the legislative agenda’ (p.23). One might argue that it was Brexit itself which created the biggest delay in the legislative agenda rather than some separate imaginary constitutional debate surrounding it. It is also the case that democratic contestation can lead to a paralysis of the legislative agenda, but we usually accept that some things are worth contesting until the right outcome is achieved and, therefore, we have chosen to stick with democratic systems. It is not clear to me why constitutional matters should be treated as a special case in which contestation is somehow problematic. Even weaker as an argument is the claim that ‘a written constitution would not automatically solve many of the weaknesses in the UK’s governing system’ (p.23). No, obviously it wouldn’t; it would depend on what was in the written constitution. The fact that this platitude is trotted out here makes me think that what is being envisioned is a written constitution that simply codifies the existing UK political system. However, most advocates of a written constitution do not simply want the existing structures to be set out in written form; they want significant reforms of the existing system at least and often something more radical than that. However, addressing that possibility would require making this into a proper open discussion of political possibility rather than a box-ticking exercise.
Instead of a serious discussion of what possibilities would be opened up by a constitution, we are told that, ‘Nearly all established democracies are experiencing fairly similar challenges in terms of the erosion of democratic norms and conventions. In this respect, addressing issues of political culture and the behavioural norms of politicians is a priority, and it remains open to question whether systems with written constitutions are more effective in addressing these issues’ (p.23). Saying everything is going to rack and ruin anyway isn’t really an argument. Yes, any system can be abused. However, a well-written constitution supported by a constitutional court has a clear potential to provide a framework for political behaviour. Suggesting that the solution to what should probably be thought of as an ongoing crisis in representative democracy lies in addressing ‘the behavioural norms of politicians’ is either blindly optimistic or deliberately cynical. I tend to think it is the former here, and the misplaced belief of the professional middle classes that things are going to go back to ‘normal’. Maybe ‘belief’ is the wrong word because it is difficult to see how anyone thinking about this in any depth can believe that ‘democratic norms’, which were the product of postwar 20th-century conditions, will be re-established in the very different times we live in now. It is probably more fitting to talk about ‘faith’ in this context, which also explains why this report has departed from the need to provide reasoned arguments for some of its arguments. How else explain the following assertion:
Ultimately, constitutions of any kind only have authority because they command widespread political acceptance and broad public legitimacy. For this reason, a well-functioning constitution must reflect a country’s values and history and be understandable to its citizenry. Moving away from a system based on parliamentary sovereignty, developed over many centuries, to one based on higher law and judicial enforcement would be a major undertaking, which would require a huge exercise in public engagement and deliberation. (p.23)
We’ve had proper democracy in the UK for about a century, if we take democracy as a system put in place over the years between the Representation of the People Acts of 1918 and 1928, and therefore it is undemocratic to cite tradition long preceding that point (certainly nothing preceding the 1867 Reform Act is democratic in any meaningful sense). Obviously, various bits of parliamentary legislation, such as the 1911 Parliament Act, are still relevant to constitutional issues. However, once you go beyond such specific precedents and start talking about values forged over centuries-old history, then you are indulging in mystification and myth. It is true that the system of parliamentary sovereignty (at least when considered separately from the idea of the ‘crown in parliament’ which underpins it) is not especially complicated but I see no reason why the public would not also understand how a written constitution worked if given the chance. I’m not sure the current UK constitutional system is the subject of widespread acceptance (in distinction to shrugged indifference). If we wanted widespread understanding and acceptance, we would teach constitutional and democratic systems throughout the school years. It is a crime (‘choice theft’) that we don’t. Yes, moving away from parliamentary sovereignty would be a major undertaking but most people understand that every now and again it is necessary to make the effort of changing to something better rather than continuing to make botched fixes to an inferior and failing system. Instead, this report is arguing that we should continue doing government the way we do it now because we’ve always done it this way, which would be a weak argument even if it were true. The implication is also that the British public have a limited capacity for understanding, which I would fundamentally dispute.
Subsequently, the report sets out to argue that the best route to follow for solving the constitutional crisis would be through parliament rather than the courts:
The Supreme Court has made a series of high-profile judgments over the past decade, including declaring Boris Johnson’s attempt to prorogue parliament unlawful. But such interventions have provoked a backlash about whether the judiciary has too great a role in the governing system. A body that could intervene to help resolve disputes within the political realm could help prevent difficult and contentious constitutional matters ending up in the courts. (p.26)
It is difficult to know on what level this argument should be taken. Has the involvement of the Supreme Court in these decisions really provoked a backlash, or just negative headlines in the loony right-wing press (Mail, Express, Telegraph)? Was there huge public support for the prorogation of parliament? I think not. Most people (whether neutral observers or British citizens) would probably say that you can’t just randomly suspend parliament for five weeks. Regardless of whether there were arcane precedents or constitutional loopholes that made it possible, it was not democratic, and everyone knew it wasn’t democratic. There is a good case for arguing that the Supreme Court saved British democracy when it declared Johnson’s prorogation (it wasn’t an attempt, he did actually do it) unlawful. Whether the Supreme Court in its current formation is the ideal body to adjudicate on constitutional matters is a valid question (in practice, when it does so adjudicate, it has tended to uphold parliamentary sovereignty) but using the example of an imaginary backlash against the prorogation case is really not a promising sign for anyone in the UK with aspirations to live in a fully functional modern democracy.
None of which is to say, that it is not also valid to look at the mechanisms employed in other countries, including those which ‘possess a constitutional body that is independent of government and expresses evidence-based perspectives on constitutional issues that are seen as legitimate’ (p.27). It should be noted that such constitutional bodies, be they parliamentary committees or councils of state or whatever, are often a layer of oversight in countries where the highest court will also have the power of overseeing constitutional law. This report favours the establishment of a new Parliamentary Committee on the Constitution (PCC) on the grounds that an external body would be subject to more backlash:
However, because the key to the success of a new constitutional body would be its perceived legitimacy, and given the significant backlash that has emerged in political life against expert advisory bodies, there is a risk that a non-parliamentary body could be open to political challenge from the outset. (p.30)
This concern about vaguely defined ‘backlash’ implies that Britain has become a country now governed on the Mary Whitehouse principle, whereby provided one makes enough fuss and complaint about anything, one will be appeased by the paternalistic authorities (with the unspoken part of this unholy alliance being that said authorities do not consider any restrictions from such appeasement to actually apply to them).
Alongside the establishment of the PCC, which would bring members from the Commons and the Lords together, this report also recommends the establishment of a category of constitutional acts, which would be different to normal parliamentary acts. The issue here lies in finding a satisfactory definition. The report notes that:
Despite the difficulties of definition, across the political spectrum, some acts are widely agreed to be of great constitutional importance. These include the Parliament Acts 1911 and 1949, the Representation of the People Acts, the Human Rights Act 1998, the devolution statutes and the European Union (Withdrawal) Act 2018. All of these Acts help to define the structure of the UK state, including the relationship between the House of Commons and the House of Lords, the territorial division of power across the UK and the rights of citizens. (p.43)
The report sensibly suggests that a start to this process would be the identification of exactly which past legislation would be defined as constitutional acts. That would be a useful step to take. Following this, the report proposes that the PCC would certificate new prospective legislation as constitutional where appropriate. The next issue addressed is how to embed this constitutional approach within the existing parliamentary system. This, of course, means dealing with the doctrine of parliamentary sovereignty:
As Alison Young has noted, there are two main interpretations of parliamentary sovereignty. While one states that the UK parliament cannot bind any future parliament, the other posits that parliament can only be sovereign if it has the ability to limit the law-making ability of a future parliament. In this second interpretation, parliament could include certain requirements for passing and amending constitutional legislation. (p.49)
Assuming the second interpretation holds, the report recommends that constitutional acts be set up so that they are protected from ‘implied repeal’ (being automatically superseded by a newer act of parliament) and only subject to amendment by primary legislation (and not by ‘Henry VIII powers’). The report then outlines a number of measures designed to support scrutiny of constitutional legislation, such as publishing bills in draft to allow pre-legislative scrutiny, having an additional committee stage in which the PCC could express a view and even amendments, and having a minimum timescale for the passing of a constitutional act. There is a chart on page 60 of the report, which shows the timescale of various past constitutional legislation, and makes it clear how quickly some key constitutional legislation, such as the 2020 Internal Market Act, has been pushed through. There are further recommendations for the Civil Service, for updating the Cabinet Manual, setting out the UK’s core constitutional principles in a similar manner to the Nolan principles of public life, and other such measures.
Chapter 7 considers the role of the public in constitutional change. This includes a section discussing the problems with referendums, before going on to focus on the advantages of deliberative processes. So, while referendums would probably be still involved in key changes, deliberative processes (e.g., citizen’s assemblies etc) would have a number of roles, possibly including the development public information to be disseminated during a referendum campaign.
Where I do entirely agree with the report is in the clear closing statement that ‘there is a clear need for action to renew the constitution’ because ‘there is a crisis in trust in politics and political institutions’ (p.95). However, ‘restoring the UK’s reputation as a stable democracy’ (p.96) depends on what is meant by stable. Are ‘the Scottish government’s continuing efforts to secure a second independence referendum’ a significant cause of ‘uncertainty and instability’ (p.96)? Given that a number of new European nations have emerged over recent decades, I would have said that this was a process that was entirely within the norms of international behaviour. It is Brexit and its legacy, including the UK Government’s obvious willingness to break international law, which has created the uncertainty and the international distrust. The report claims that its ‘recommendations will help renew the devolution settlement in the UK’ by addressing some of the underlying causes of conflict and encouraging collaboration. It is envisaged that the PCC will
mediate between the UK government and devolved governments, finding a middle ground between them on specific issues and wider questions concerning devolution. Where the devolved governments are seeking to challenge the UK government for acting outside established constitutional practice – for example, by passing legislation without legislative consent as normally required by the Sewel Convention – an authoritative judgment from the committee will take a position on the legitimacy of their concerns. Equally, if the devolved governments make demands and manufacture grievances for political purposes, the committee will also be able impartially to assess the grounds for their challenge in a way that is much harder for the UK government to do. (p.97)
This statement is hardly reassuring to those living outside England. The use of the word ‘equally’ is particularly pernicious because there are clear cases in which the UK government has completely disregarded the Sewel convention, such as the 2020 Internal Market Act, whereas there are no clear cases in which the devolved governments have made demands and manufactured grievances for political purposes, only political allegations made that they have done so. Even if one decided that maybe some of the actions of the Scottish Government had a political motivation (given that they are elected on a political manifesto, perhaps they should be expected to have some political motivation), this wouldn’t create an equivalence to the UK Government deliberately ignoring legislative conventions. It’s absurd and biased to suggest so.
In conclusion, I think this report is correct to suggest that there is an urgent constitutional crisis and something needs to be done to rectify it. However, in common with other similar reports, such as those of the Brown Commission and the House of Lords Select Committee on the Constitution, it still reaffirms the principle of ‘parliamentary sovereignty’ (see p.5). I’m not sure whether the ultimate problem here is a lack of imagination or an outlook limited by the narrow parameters of British exceptionalism. Whatever it is, there is an absolute refusal by all of these reports to contemplate alternative constitutional arrangements. Instead, there is a ferocious determination to hang on for dear life to the principle of parliamentary sovereignty, which is a system that is clearly open to abuse. Hence, the determination here to find various fixes by which past constitutional acts can be properly protected and new acts properly scrutinised. Some of these suggestions are eminently sensible, such as the identification of which existing legislation should be considered constitutional in this sense. For example, the report provides a list of the eight categories of constitutional legislation as identified by the legal historian, John Baker, which would include any substantial alteration to the establishment of the Church of England but not the 1928 Representation of the People Act which introduced universal suffrage (see pp.42-3). I should add that the report doesn’t endorse this list but simply uses it as an example to demonstrate that identifying constitutional legislation is not a straightforward matter. However, there is always the problem with parliamentary sovereignty, that if the alternatives/protections of a written constitution and legal oversight are explicitly ruled out (as they are here), then at some point a future UK Government could restrict the current electoral franchise in some way. Clearly, something has to be done because things can’t be left as they are, but I don’t think the fixes outlined here will be sufficient.
Social Humanities 