Hands off the constitution, Andy Meddling would trigger acrimony

For fans of British exceptionalism, the fact that the UK is only one of three of the world’s democracies without a written constitution — the other two being Israel and New Zealand — is yet another quirk to celebrate.

For critics, however, the lack of a single authoritative document detailing the rules of the game, or at the very least outlining them, has long been a sore point — a source (for some, even the source) of widespread political, social and economic dysfunction. No wonder, then, that ears pricked up when Andy Burnham indicated that his plans for greater devolution “increase the case for a constitution”.

But while their excitement is understandable, it may well be misplaced. True, Burnham has already declared his commitment to proportional representation, a voting system that would spread power across more parties, potentially favor the Left, and significantly shift the country’s current constitutional balance. But his principal interest in the constitution, at least as he recently expressed it, seems only to stretch as far as a desire to better define the occasionally overlapping and therefore contested competencies of the various levels of British government, be they local, regional, devolved, or national.

This is the sort of thing that, classically, is really only a major concern for the constitutions of federal states such as Germany, even if, as purists will insist on telling you, the Bundesrepublik formally refers to that document as its Grundgesetz — fundamental law — rather than a Verfassung — a constitution. In a unitary (or at a push, hybrid-federal) state such as the UK, those competencies could be divided up without needing to come up with a completely new constitution.

However, if Burnham really is suggesting doing the latter, then he would be kickstarting a process that would inevitably take years of agonized argument to resolve. And it is worth looking at the sheer scale of what it would involve: something which, in most countries, only happens when a war or a revolution permanently destroys the legitimacy of the existing regime, obliging it, in effect, to completely re-found and rewire the state. After 1066, this country has been fortunate enough for that to have proved unnecessary even if it has, on occasion, been obliged to adapt: namely, in response to the “English Civil War” (a contested term) of the 1640s and the “Glorious Revolution” 40 years later, as well as the union with Scotland, the loss of most of Ireland and other parts of the empire, and European accession.

The UK does, of course, have a constitution. Indeed, contrary to common wisdom, many of the rules of the game are, it turns out, written down. It is just that, unlike the overwhelming majority of other democracies, they are uncodified: that is to say, they do not appear in a single, overarching document that is easily accessible (if not necessarily always easily-understood). 

What we in the UK have instead, is a hodgepodge of laws, conventions, customs and norms. And although we have something called a “supreme” court, it is not granted the exclusive and uncontested power to pronounce on whether the actions of governments, and the legislation involved, are “constitutional”. Nor do we “entrench” certain laws and rules in the belief that they are so fundamental to how we govern ourselves that changes to them should be difficult, if not impossible, to achieve. If a simple majority exists in Parliament to overturn existing practice, then it can be overturned: no Parliament can bind its successor, while only in exceptional circumstances can the judicial branch get involved.

Fans of the supremacy of parliament (and they are not all Brexiteers) are prone to conveniently forgetting that one of the sources of the UK’s uncodified constitution is the Royal Prerogative. This means that, when we are talking about the government, we are talking about “the Crown in Parliament”: a concept that, in theory and practice, affords the executive branch significantly greater power than that enjoyed by governments in many other democracies — even those that are likewise parliamentary rather than presidential. Examples include the power to make and sign international treaties with little or no involvement of the legislature, as well as the ability to decide the timing of elections.

That said, most experts would probably agree that the most important source of the UK’s uncodified constitution are now (written) statutes, some of which are, or have come to be regarded, as “constitutional”. The definition of the latter was set out in the 2002 judgment by the appropriately named Lord Justice Laws (yes, really) in the so-called “Metric Martyrs” case, when he declared: 

We should recognize a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. 

Should parliament want to repeal such statutes, it must do so “expressly”. It cannot, as is the case with “ordinary” statutes, do it by implication — that is, by passing another statute which conflicts with it but, because it was passed at a later date, is deemed to take precedence over it. The standout recent example of that process is probably the passing of the European Union (Withdrawal) Act 2018 in order to repeal the European Communities Act of 1972 that took the UK into the EU and effectively granted European law supremacy over national law.

Common law — the accumulated decisions of judges in cases that may well go back centuries — can matter too. It is of particular importance when it comes to the right of the courts to constrain the government and its officials, whose actions should be lawful, reasonable and fair, and compatible with the Human Rights Act (HRA). Note, however, that should a piece of legislation clash with the HRA, the courts are limited to issuing a potentially toothless “declaration of incompatibility” rather than being able (as they can in many democracies whose constitutions allow for full judicial review) to strike it down.

Other written sources such as the periodically updated Cabinet Manual and Ministerial Code also contribute to the constitution. And, like some of the constitutional statutes already mentioned, they too have loomed large in recent political controversies, as have the so-called Lascelles principles. These were based (believe it or not) on a letter to The Times in May 1950, but were much discussed in the spring and summer of 2022 when Boris Johnson, then prime minister, was hoping to hold onto his job by threatening his Conservative colleagues with a dissolution of parliament.

Yet for those who would like to turn Burnham’s vague constitutional hint into a reality, it is those maddeningly unwritten conventions that most provide the impetus. Once again, some will be familiar, having played a big part in recent rows: so, for instance, the monarch appoints the person best able to command a majority in the House of Commons to serve as their Prime Minister; the House of Lords does not delay legislation promised by the governing party in its election manifesto; and Parliament, as per the Sewel Convention, doesn’t legislate in areas of devolved competence without consent.

Trying to nail down a form of words that will satisfy both supporters and critics of those conventions will be hard enough. But there are also conventions that are so contested that some experts argue they don’t yet qualify as such. The need for a referendum over major constitutional changes, for instance, will surely raise its head among supporters of first-past-the-post or Brexit should Andy Burnham attempt to undo either. Likewise, there is considerable debate over whether explicit parliamentary approval really is needed before the government takes military action. (As if to bring us full circle, this is a power deriving from, you’ve guessed it, the royal prerogative).

A document that encompassed all of the above, in a manner that could command both cross-party and popular consent, would require an immense amount of time, effort and expertise. It is hard to believe that the Conservatives or Reform would countenance a codified constitution that placed significantly greater constraints on the power of the executive. And should such a document still be put before the electorate in a referendum, the campaign could easily end up being even more acrimonious than the Brexit vote, especially if, unlike Brexit, it required the consent not just of voters across the UK as a whole, but in each of its constituent parts.

That is not to say, definitively, that it cannot or should not be attempted. It isn’t hard, after all, for critics to characterize the current arrangements as not merely muddled but deeply undemocratic (the unelected House of Lords) and unable to guarantee even those rights that have become taken for granted (an HRA that can be repealed by a simple majority). For those critics, the current constitutional settlement affords British governments arbitrary powers and undeserved latitude deriving from the monarch rather than the people.

Against this, however, many politicians and pundits across the political spectrum insist, with some justification, that not only are there more important things for British governments to be getting on with, but that a codified constitution would likely constrain rather than enhance their ability to act. Just as importantly, they will argue that current arrangements provide the UK with a capacity to update our constitution to take account of changed circumstances and preferences. In this view, our capacity to adapt in this way is the envy of those democracies in which such updates can only occur via a supermajority in parliament or a plebiscite.  

Codifying a constitution that has evolved over centuries into the messy but broadly workable compromise that exists today would surely use up much of the precious political capital Burnham has managed to build up since he moved into No. 10. So while he may be tempted in the long term to follow through on the hints he’s just dropped, in the short-term he should probably leave well alone.

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