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Have events surrounding Johnson's resignation highlighted weaknesses in our part-codified constitution?

Mike McCartney

12th July 2022

Expert suggests recent events reveal holes in our constitutional architecture

Writing in the Observer weekend, Catherine Haddon, from the Institute for Government, argues that actions by Boris Johnson as Prime Minister suggest that our country's largely unwritten arrangements are weak.

Before looking at what the author has to say, let's revisit some of the arguments for and against codification (and I find it hard to believe this is the first time I've posted on this blog about this!)...

The following can be regarded as arguments for codification of Britain’s constitution.

• The constitutional convention process would act as an opportunity to update our governing arrangements and correct imbalances in the political system. For instance, the constitutional status of the House of Lords could be considered properly, alongside the relation between the executive and legislature. It is likely that serious thought would be given to the problems thrown up by asymmetrical devolution, like the generous funding for the Scottish government.

• Codification would provide a counter-balance to the power of the executive. At present the PM wields enormous power through the royal prerogative, such as the power to declare war without the need for Parliament’s consent. Increasingly, much of what we have taken our constitution to entail, such as Cabinet government has been washed away. Increasingly PMs make decisions with a coterie special advisers and Cabinet is kept in the dark. Greater checks and balances are therefore necessary.

• Related to this is the power of the Commons to force through anything it wishes by implementing the Parliament Act, as it did with hunting with hounds. Thus there is no effective legal restraint against a party with a majority in the Commons in-between elections.

• At present there is a lack of special procedures to amend the constitution, thereby making it too easy to change. Before Brexit, for example, there were a raft of major alterations to the UK’s relations with the EU without referendums: Maastricht, Amsterdam, and Nice were approved without asking the electorate, and the previous Labour government ignored public demand for a vote on the Lisbon Treaty. Codification would give the constitution special status and make it more difficult for a government elected with the support of as little as 1/5 of the electorate from making major changes.

• Codification would strengthen rights protection, and help guard the citizen against an over mighty state. Despite steps in the right direction as a result of the introduction of the European Convention on Human Rights through the passage of the Human Rights Act, rights are still not adequately protected since they lack entrenchment in our political system. That civil liberties receive little protection was illustrated in full Technicolor by Blair’s fourfold extension of detention without trial.

• On a related point, it appears that governments can give with one hand and take with the other. The incorporation of the HRA was a step forward in rights protection, but the derogation from the Act was seen by rights campaigners as unacceptable. That governments elected by just 1 in 5 of the electorate can alter the rights of the people on a whim underlines the need for codification.

• Since most of the constitution is unwritten, it is unknowable. This means that citizens rely on government to play by largely unwritten rules. It would be far safer and far more democratic if our constitutional arrangements and procedures were defined and limited by law. This would have an educative benefit, enhance trust by the electorate, and help to protect democracy.

• Unlike citizens in the USA, who are able to buy a copy of the US constitution from almost any bookshop, since UK citizens lack a constitution which can be read and understood, they are less likely to claim their rights. Codification would redress this.

The following can be regarded as arguments against codification of Britain’s constitution

• First, there is no need. Britain has not undergone the kind of constitutional crises that have precipitated the drafting of written constitutions in countries like the Germany and Japan after WWII. The only seismic shock that might act as a catalyst for a written constitution is if Scotland became independent.

• Most inhabitants of these islands are broadly satisfied that the nature of government is legitimate. It may not be perfect, but which country can claim that its system is? Holding a constitutional convention is bound to widen divisions, not heal them, as was the case following the meeting in Philadelphia in 1787.

• The debate about the need for radical constitutional change is driven by academics rather than the people. Opinion polls might show that the latter are overwhelmingly in favour of a written constitution, but the issue is of very low salience. Voters would much prefer their politicians get on with the business of improving schools or hospitals, remedying unemployment, etc.

• Consensus about what should be included in a written constitution seems remote given the inability of our political classes to agree on how they should be funded, or what remuneration MPs should receive. As if to underline this point, Parliament has again delayed difficult decisions about what to do with the House of Lords – it is now over a century since second chamber was first reformed, and over 20 years since the vast majority of hereditaries were ejected. How long would arguments about the constitution drag on for?

• Even if the convention managed to come to agreement about the constitution’s contents, a referendum on the issue is unlikely to motivate large numbers of the electorate to visit the ballot box. A low turnout would surely undermine the whole process.

• Even if codification were secured it is as likely that the new British constitution would be worse than the status quo ante than better. The framers of the US constitution contained amongst them a large number of individuals with direct experience of applying their intellect to constitutional matters. Without men and women of comparable stature in the UK, would actual progress with our constitution be made?

• The UK constitution has been modified enormously since the 1960s. Even if we consider solely the changes that have taken place since New Labour took power in 1997, largely related to devolution, it is clear that it is time to take stock and consider their impact. And since the full implications of Brexit have yet to be settled (especially the NI Protocol), Calvin a grand constitutional convention now seems too soon.

• If fine minds do want to consider constitutional matters, there is plenty to be getting on with in attempting to address issues such as how the devolved institutions should finance themselves, or whether there should be an agreed convention on what issues should be put to a national referendum.

• Codification is not a panacea. First of all, what needs to be included? Many entrenched provisions become outdated or irrelevant. On the first, and it is particularly salient now, witness the problems caused by the USA’s 2nd Amendment which guarantees the right to bear arms. On the second, it is a little known fact that the Icelandic constitution includes a clause which states that its president must live in or near Reykjavik! The conduct of elections barely receives a mention in most codified constitutions, so should the UK include it?

In the article, the author states:

"One of the many legacies of Boris Johnson’s government is how it has exposed the vulnerability of our constitution if someone wants to push against convention and ignore precedent and is not worried about the consequences. From the unlawful prorogation of parliament to threats to break domestic law (over requesting a Brexit extension) and international law – twice – over the Northern Ireland protocol, let alone the repeated accusations of misleading parliament – not just over Partygate – is quite the record.

Johnson’s time in office has shown not only how much of the constitution depends on integrity and self-restraint, but also the difficulty in protecting the convention-based parts of it if those in power say “But why?”. If ministers are asking officials: “But where is that written?” or “Can you make me?” it is hard to point even to documents that set out our constitution in writing, let alone those that have the teeth to back them up."

See the full article here.

Activities

Explain what is meant by a 'written' or 'codified' constitution

Research the article in full and summarise the author's arguments

Discuss, using the article, whether you feel that the arguments in favour of a fully written, or codified, constitution for the UK are stronger than ever

Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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