The Cavalier Constitution

17. Our Refounding Fathers

The consensus in academia is that there is undoubtedly a British constitution: a set of clear rules that governs the institutions and incumbents that operate the political system. However. I am not the first person to doubt its existence. I am in good company.

There are three conclusive pieces of evidence that any competent peer reviewer should be aware of and which are difficult to brush aside.

The first of these is a document published by the Institute of Government, in alliance with the Bennett Institute (Jack, 2022). It accepts the reality of the constitution while demonstrating that it falls short of acting as an effective democratic constitution on seven key points: all discussed in my article. 

To give one example, the IOG report points out that there is no difference between legislation of a constitutional nature and all other legislation; and that there is no set procedure for altering the constitution other than a simple majority in the House of Commons, which is the same for ordinary legislation. This means that there is nothing that can be said to be “constitutional” per se. The process of delimitation or demarcation is the way we determine what is a “thing” as opposed to a not-that-thing. We cannot say an apple exists unless we can be sure of where “appleness” ends and “banananess” begins. 

My second defence witness is a lawyer. During the Levenson Inquiry (2011-2012) Hugh Tomlinson QC was involved in drafting a proposed free speech “First Amendment” to the British Constitution but, as he later reported, there was an insuperable problem to this exercise:

“The so-called “unwritten constitution” of the UK is, in reality, no such thing. A proper “written” constitution sets limits on the powers of the institutions of government. The loose and flexible set of rules that is described as Britain’s unwritten constitution sets no such limits. It can be changed—sometimes by new legislation, but often by mere government decision, or a change in practice. So is there any way to entrench free speech and enact a British First Amendment? There is, but it would require a UK Constitution. This would set out the powers of the institutions of the State and make clear their limits. Laws that were inconsistent with this Constitution would, as in the US, be struck down. This kind of system—which is in place almost everywhere else in the world—is not completely foreign to our own legal system. (Tomlinson, 2018) 

The third new piece of evidence is even more damning. In 1991 the late James Cornford (1991) assembled a team to respond to the question I raised in my article. That I am able to ask the same alarming questions as Cornford was three decades ago indicates how little progress has been made in the field of academic politics. 

Cornford, along with 16 professors, three QCs and 30 other experts in politics and the law, saw what was then, and still is, un-ignorable. So little of the British constitution conformed to the definition of a constitution that this team felt tinkering was no longer an option: they set out to write a constitution deserving of the name.  To do this they had to avoid the contradictions and ambiguities of the constitution as it then was; establish which principles were to be aspired to; and make recommendations of reforms that would be feasible to implement. 

The resulting IPPR draft constitution exposes the political foundations that are lacking in the United Kingdom. It should be beyond discussion that any constitution that does not deal with the terms of enfranchisement before it creates a legislature and that regards citizenship, and the right to vote, as being the gift of elected politicians is built on hot air.

Why, we have to ask, did so many distinguished people of their day put in so much work if there was already a perfectly good, functioning constitution? Why did they go to the length of writing a detailed 290-page constitution that aimed to revolutionise the British political system, abandoning almost all cozy working arrangements (conventions, precedents, Good Chap agreements etc)?

To challenge my allegation, it is necessary to show that either the IPPR team was misinformed or that something has radically altered since 1991: that there is now a constitution when there wasn’t one then.

Only a few of Cornford’s proposed measures were duly enacted by the Blair New Labour government but most of the reforms identified as urgently needed in 1991 have been steadfastly ignored by political actors ever since and have been championed only half-heartedly, if at all, by professors of politics.