The Cavalier Constitution

4. Why this Matters

Does it matter whether or not there is a British Constitution? The institutions of the political system function. Politicians and civil servants apparently conform to a set of rules, some overt, others informal. 

There is, however, a difference between working political arrangements and a constitution. A constitution answers questions – not always adequately – and leaves as few doubts as possible hanging. In the British case, the absence of a constitution explains more than the supposition of the presence of such a thing exists. We won’t make progress on the following issues until we acknowledge the lack of – or at least the inadequacy of – the missing instruction book. This gives us a common starting point and will save a lot of futile arguments.

1 Misinformation. If there is no constitution it means that the people of the UK are being deceived and have been deceived for a very long time. This doesn’t have to imply a deliberate cover-up but it does have to be corrected as soon as possible so that we no longer take statements at face value. When Charles Moore writes “Government departments and cabinet ministers are demoralised because they have lost the independence which the British constitution once gave them,” we’d be forced to challenge him on his assumption. A paper called The Starmer government and constitution reform  starts off with a premise that needs to be tested but is given a free pass as if all readers know what it means.

2. A lack of intelligibility and ownership leading to exclusion. There is, in Britain, a recognised problem of political ignorance and apathy, if not widespread mistrust or rejection of the system. Participation in elections. When asked by pollsters how politically integrated they feel respondents answer that they feel excluded from the system. One of the reasons for this must be befuddlement. People, in general, do not understand what the constitution is, how it works and how it affects them. A constitution must, if nothing else, be intelligible to all parties concerned.

3. Status and rights of the individual. “The government should be much more transparent about how it is upholding our constitutional rights,” wrote Stella Creasey and Peter Hain in 2025. Where and how are these rights defined? Are they the inalienable property of the individual? Even “Britishness” is an attribute that can be taken away by an elected politician, as Shamima Begin found out. Citizens’ rights and limits to state power go together. A constitution normally spells out how to minimise abuse and act in cases of dispute. In Britain the subject is left hanging in ambiguity. Recently, the opaque constitution has facilitated the creation of a new breed of political prisoner, according to research by Queen Mary University of London and Defend our Juries.

4. Any guarantee of democracy? Democracy is predicated on a constitution and on power flowing upwards from below. It cannot be introduced piecemeal from above by an institution that retains sovereign power. When Polly Curtis calls for a “New Deal” in order “to repair the broken relationship between the citizen and the state” she does not seem to realise that this “relationship” does not exist in a two-way democratic sense without a constitution.

5. The legitimacy of the system is unexplained. The question of legitimacy goes permanently unanswered if there is no constitution. Constitutional experts routinely infer that the “constitution” has been validated by history by which they must mean a combination of medieval paternalistic and theocratic monarchy, honed by the Glorious Revolution and semi-democratised by the Reform movement (1832–1951). In all the centuries since 1066, however, the people have not been asked what system of government they prefer. No one alive or dead has ever voted for the king. The British state is no more intrinsically legitimate than the South African state that Nelson Mandela was imprisoned for trying to overthrow.

6. A confusion over sovereignty. The absence of a constitution explains the confusion over the location of sovereignty that permeated the Brexit debate between 2016 and 2019. The British people are often told they are sovereign – ie invested with incontestable decision making powers and possessed of a veto – and that they express this power through the ballot box; yet many decisions are taken without an mandate from the electorate. A more accurate answer to “who is sovereign” is either the king (technically so) or the Crown-in- Parliament, a concept difficult for most people to understand and which is not fully democratic. Where does power reside in Britain and where should it reside? Is power in the right or wrong hands? For all we know, the political class may be out of control.

7. The principles of the constitution. In his first speech as king, Charles III swore to uphold the “principles” of the British constitution without specifying what these are. Politicians fall over themselves in their appeal for the safeguarding of “British values” and yet no one offers a definite list. A constitution begins with the principles underpinning it. The British political system avoids grasping this ethical nettle. Are British people equal, free or empowered. Are free speech and the right of assembly guaranteed? Threats, blackmail and bribery are evidently core British values because they are practised in Parliament via the whipping system.

8. Distinguishing the constitutional from…everything else. In November 2016 Jacob Rees Mogg wrote to the Times to claim that “There is no constitutional requirement for a general election” (to interpret the referendum result); instead it was a matter of “political convenience”. He didn’t specify where these “constitutional requirements” are recorded and who validated them. There is, in law, no difference between legislation which is constitutional in nature and that which is “non-constitutional”. Ergo, the constitution has no defined edges which are required for us to establish the existence of anything. The constitution can be vague and it can be silent; it could be said to be abstract and intangible. It often relies on precedent and convention. Some precedents lapse; some conventions are not respected: how can we know which is still constitutionally valid and which isn’t? 

9. Contradictions. A constitution attempts to eliminate contradictions. The British system exalts them. The reserve powers of the monarchy are in direct conflict with democracy. Bagehot noticed the odd configuration of “an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. It was made but it can unmake; it was derivative in its origin but is destructive in its action”. To remark, as Vernon Bogdanor does, “if the conjunction of monarchy and democracy may seem contradictory, it is worth bearing in mind Freud’s aphorism that it is only in logic that contradiction cannot exist” is to be unhelpfully inscrutable.

10. Unaccountable power. Do the civil service, and government agencies have too much invisible, unaccountable power? Ridley describes a “democratic deficit” with MPs and ministers performing the function of “human shields” and “scapegoats” for bureaucratic policies that go wrong. He sees the House of Lords as a “giant patronage quango” and, like the Commons, ineffectual. “Stealthily but steadily, almost all real political power has been stripped from elected councillors, MPs and even ministers over the past two decades by officials and handed to “experts” in quangos, nationalised industries, arms-length bodies and courts.” Rory Stewart in his memoirs tells us that he was prevented from making some decisions by senior civil servants who outranked him.

11. Devolution. Britain has a never-ending debate about local government and devolution. The relationship between provinces, sub-nations, rural areas and metropolises, and central government is constantly in flux. Were there a constitution, these relationships would be established.

12. Do whom or what do office holders owe allegiance and obedience? An office-holder in the US swears to uphold the constitutions, both state and federal. Why, if there is a constitution, do UK office-holders not take a similar oath? It is often said that politicians and civil servants serve the Crown, a indistinct concept which certainly has nothing of democracy about it. The interests of the Crown are not necessarily aligned with the interests of the people. It is not clear, who an MP is meant to be and is responsive to: party, prime minister, whips, “the national interest”, his constituents? 

13. A constitutional monarchy without a constitution. How, exactly, is the monarchy “constitutionalised”? Should we understand this as a legal formulation or a contract between the king and his subjects? Can a subject bring a civil action against his royal highness? What are the penalties applicable if the king acts against the constitution? Can he commit treason? When Robert Hazell claims that the monarchy is “accountable, just like any other public institution” he uses the word “accountable” in a tortuous way to mean a mixture of parliamentary legislation (which can be changed at any time) and public opinion as assessed by the media. He rightfully notes that other countries have held referendums on the continuance monarchy, but not the UK but does not take the next logical step – if there can be a referendum on sovereignty there should be a referendum on the sovereign. 

14. Fusion and confusion, not separation. Democratic systems work by establishing distance and checks and balances between offices and institutions. No institution has absolute power to police the others.  A constitution makes an attempt at least to answer the question, “who guards the guardians?”. Speaking on Radio 4 during Queen’s lying-in-state, the resident historian of the Institute of Government, Catherine Haddon, praised “the fusing or blending of the different institutions of our state.” In this she was following Bagehot who remarked on the co-operation between legislature and executive while not seeing that this relationship can (must?) turn into collusion (of benefit to insiders but not outsiders). Not only are the institutions of state fused but they are also joined to a state religion. Ultimately, the civil state, the military and the established church are under the aegis of unelected powers. 

15. Self-regulation is problematic. A constitution keeps self-regulation to the minimum. In Britain it is extolled as a virtue – although Hennessy later rowed back from his admiration for the behaviour of “good chaps”. The political system leaves too much place for incumbents to decide which rules they will follow without outside, impartial policing. 

16. The Difficulty of Reform. If there is a constitution, it must surely contain instructions on how it can be amended or reformed in response of changing circumstances. Fundamental reform in the UK, however, is difficult to achieve because there is no prescribed methodology. As one think tank report puts it: “When and how the public should be involved in approving major constitutional changes remains somewhat unclear in the British model.” No one knows, for instance, what can be done about the House of Lords. Is a simple majority vote in the Commons enough to do away with almost a millennium of tradition or should there be a referendum? Or what? If there is to be a change of the method of general elections, how could this come about? Does it have to be in a party manifesto? Who chooses the system of proportional representation that will be adopted – surely not MPs themselves? The “constitution” ties itself in knots over such issues.