A review by Jonathan Sumption, the former UK Supreme Court judge, of the two-volume Cambridge Constitutional History of the United Kingdom (edited by Peter Kane and H. Kumarasingham) in the current Times Literary Supplement, is headlined ‘A Trump-proof constitution: The British system has absorbed any amount of shocks’ [paywall]. This seems somewhat misleading given that Sumption’s argument is that there haven’t been any big shocks since 1660:
Contrary to the oft-repeated trope, Britain does have a constitution, but it lacks the two defining features of almost every other constitution in the world. It is not codified in any document. And it is not what the US Constitution calls the “supreme law of the land”, prevailing over every other source of law. The uniqueness of Britain’s constitution reflects the uniqueness of its historical experience. Almost every other constitution in the world was drawn up in the aftermath of some cataclysmic event that put an end to the previous constitutional order. They were written on a blank sheet of paper. After 1660 Britain never had a clean break in the development of its institutions, and never offered a blank sheet of paper for a latter-day Abbé Sieyès to write on. Even the short-lived republic of the mid-seventeenth century left no legacy to overshadow the restored monarchy. Since the Restoration there has been no true revolution, no coup d’état, no contested invasion, nothing to force a reconstruction of the country’s institutions from the foundations up.
Some might say that the fact that nothing has forced a reconstruction of the country’s institutions is a problem. On the face of it, it seems unlikely that this constitutional ‘system’ as described by Sumption would still be suitable for a twenty-first century democracy. That is one change, of course. We have had universal suffrage since 1928 following the Representation of the People Act of that year, also sometimes known as the Equal Franchise Act. This didn’t require a revolution and was in fact introduced under a Conservative government. So, maybe this does bear out Sumption’s argument that the British constitution has actually functioned effectively and with a minimum of social upheaval to meet the country’s needs through what is often called the principle of parliamentary sovereignty, or, as Sumption puts it, ‘unlimited political and legislative competence’:
In [A.V.] Dicey’s words, endorsed by the Supreme Court in the first Gina Miller case, parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’.
However, the very existence of a UK Supreme Court (established in 2009 and only really entering public consciousness due to the Gina Miller cases following the EU referendum in 2016) is itself an indication that parliamentary sovereignty no longer quite cuts it. Even if the court has so far steadfastly upheld that principle when considering constitutional matters, it did for example overrule Boris Johnson’s attempted 5-week prorogation of Parliament in 2019. Gordon Brown’s Commission on the UK’s future (available here) has recommended giving the Court a more explicit role in constitutional matters involving the Welsh and Scottish Parliaments. The underlying issue here is that the establishment of the devolved administrations in 1999 did in effect change the British constitution and generate written constitutional law. It is noticeable, that when Sumption discusses the fact that parliament can cede part of its unlimited political and legal competence to another body, he uses the example of the 48 years when the UK was part of the EU, so that he can confidently state, ‘But the sole basis on which EU law ever applied in Britain was parliamentary authority, which could be revoked as we have seen.’ Well, yes, it was revoked but hardly with entirely happy consequences. Moreover, the example of external delegation to the EU is not relevant to the internal delegation of parliamentary political and legal competence to the Welsh and Scottish parliaments. Does anyone suppose that the Westminster parliament could revoke its authority in this respect with no consequence to the internal stability of the UK state? It is not difficult to imagine political forces wanting to reverse devolution solely by act of parliament, but it is nigh impossible to imagine it happening in accordance with any functional model of democracy. In short, the UK constitution has changed (and this is without even discussing the constitutional situation in Northern Ireland which is dependent on international agreements and treaties). As a consequence, parliamentary sovereignty no longer holds water and therefore there is a constitutional crisis. Hence the number of recent and ongoing constitutional commissions, with different purposes. Aside from the Brown Commission (which I blogged about Here), there is also the Welsh Government’s Independent Commission on the Constitutional Future of Wales, which has yet to publish its final report. While these two commissions are trying to find a new model for the UK constitution to function taking devolution in to account, it seems to me that both the House of Lords Select Committee on the Constitution, ‘Respect and Co-operation: Building a Stronger Union for the 21st Century’ (available here, with my blog analysis of it, Here) and the report of the Institute for Government and the Bennett Institute for Public Policy, ‘Review of the UK Constitution: Final Report’ (available here, with my blog analysis, Here) were primarily concerned with finding ways to strengthen and uphold parliamentary sovereignty in the face of devolution, which is seen to a greater or lesser extent as an unwelcome intrusion.
The establishment might be closing ranks but what is the case for maintaining the current ‘British constitution’ (as Sumption describes it)?
It has two main advantages. One is that it is good at dispersing power. Presidential systems concentrate too much executive power in the hands of one person, who is practically immovable until the next presidential election. [Sumption here expands on the example of Trump]. By comparison […] [i]n the parliamentary world conventions are more powerful and more difficult to discard, and unsuitable ministers can be unceremoniously removed.
The second notable advantage is the flexibility of a political constitution, which enables it to resist shocks that would have overwhelmed the more rigid models characteristic of written constitutions; the political decline of the monarchy, the onset of a popular democracy, the acquisition then loss of a worldwide empire, the existential crises of two world wars, the arrival of the welfare state, joining and then leaving the European Community. Britain has accommodated these changes with its basic constitutional framework attached [avoiding the various problems that have beset France, Italy and the US.]
It is these two concluding paragraphs that explain the title and subtitle given to Sumption’s review (probably not by him). However, the second of these, with its list of major crises and changes, contradicts the argument of Sumption’s earlier paragraph (the second of his review), which I quoted at the beginning of this post. For there evidently have been a number of cataclysmic events in modern British history. It is not as though our ‘unique’ constitution has prevented this or aided how such crises were handled; it has merely survived despite them. Or, to put it another way, if we enter the mirror world, where the sole criteria for success is for a country not to have to change its centuries-old constitutional order, then Britain remains ‘Great’! The trouble is that, contrary to narcissistic and arrogant beliefs, Britain is not a unique exception. There is no prize for keeping as many of the trappings of your ancient history as possible. On the contrary, some political changes are so fundamental that they require renewal of the implicit social contract with the general public (which in practice often requires some form of constitutional change, or, at least, is most readily achieved in that manner) that maintains the legitimacy of the state.
A different way of thinking about the crises that Sumption lists in the last paragraph quoted above, is to see them mostly as related phenomena surrounding the major reformation of the British State in the mid-twentieth century, a process described at length in David Edgerton’s 2019 history, The Rise and Fall of the British Nation. An empire was replaced over the course of the interwar years by a nationalist British state, which became entrenched and gained popular legitimacy over the course of the Second World War, in a process that was completed by the election of the Attlee Government. What was once known as the ‘1945 political settlement’ was in effect a renewed social contract that underwrote the consensus politics of the next quarter century. There are many reasons why that state of affairs was never going to hold – aspects of it were quite reactionary – but it was a functional society. Before that consensus started to break up from the late 1960s onwards, it would have been much better for the UK if the antediluvian aspects of the British constitution had been reformed at the same time as the liberalising legislation of the 1960s took place. As it was, parliamentary sovereignty underpinned the de facto elective dictatorship of 18 years of reactionary Conservative party rule from 1979 to 1997, which fractured the mid-century social contract. Since then, British society has been breaking apart. Apart from the establishment of the devolved administrations, there has been no meaningful constitutional change (the equally short-lived Fixed Term Parliaments Act and English Votes for English Laws notwithstanding). Brexit wasn’t the cause of social division in the UK, it was the final outcome of that division having become irrevocable. Far from the British Constitution being a source of strength, it is a millstone around the neck of the UK keeping us trapped within a winner-take-all party-political culture that has no hope of generating a meaningful social contract with the public in its entirety. In other words, the current UK state is not politically legitimate in the wider historical sense of how western democracy is understood. There are options with the potential to address that situation (written constitution, federation, separation into to separate national formations) but all of those entail constitutional reform. These would be big steps and it is difficult to assess the various consequences, but against any such uncertainty has to be placed the absolute certainty that there is no future as a functional society for the UK as it is currently constituted.
Social Humanities 