“written constitutions do not happen by accident”
Adam Tomkins – Public Law
Alongside its “inescapably political” nature (Adam Tomkins), the contours of our ‘constitution’, and hence its abiding ‘regimes’ of Administrative and Public Law, have always been highly ‘contested’ (Mark Elliott), and nowhere is that aspect of our legal/political life more apparent than when we focus on the ‘codification’ debate.
From Montesquieu and Voltaire, through Bagehot to the the fictitious Mr. Podsnap our ‘supposed’ constitution has hitherto (or so the British would want to believe) attracted a great deal of admiration but with recent (post June 23 2016) events at the forefront of all commentators minds, it would not be stretching the point to say that said ‘admiration’ has been/is being tested if not shadowed by as Dicey put it that “dark saying” of De Tocqueville . [A ‘supposed-ness’ that “forced from De Tocqueville, in a moment of irritation, the impatient aphorism that there is no constitution in England: “elle n’existe point”].
With a constitution cobbled together by what Sidney Low (The Governance of England 1908) once called ‘tacit understandings’, the question on everyone’s lips has to be what happens (to paraphrase Low) when “those understandings are no longer understood”.
‘Constitutional reform’ is once again very much in vogue and as such it is inevitable that the very question this essay poses is once more centre stage.
It is not a new question and as with all lego-political conundrums it is arguable from both sides; “deservingness cannot be determined a priori” to quote Dominic Grieve.
“Unnecessary and unjustifiable” on the one hand; “long overdue” (in the name of ‘certainty’) on the other; with both sides (most likely) acknowledging the need for reform, yet it would seem disagreeing fundamentally as to how that change is to be secured.
Vernon Bogdanor has long argued that the case for ‘codification’ is an intellectually strong one (mainly focussing on certainty) but nonetheless it still involves negotiating, and more importantly ‘justifying’ negotiating, Hume’s (is-ought) guillotine; whilst others (Low and Tomkins) amongst them have suggested that in fact the differences between written (codified) and unwritten (un-codified) constitutions is much exaggerated, an argument that may give weight to the ‘business as usual’ (as opposed to ‘radical reform’ argument). But why if Tomkins is correct would the decision to ‘codify’ (as put forward by Gordon Brown PM in his Governance of Britain 2007 Green Paper) be any more ‘radical’ than simply effecting those changes through the more familiar (to the British) process of ‘incremental change’.
Bogdanor once again has the (or at least an) answer; captured in his pithy aphorism: “what the Queen in Parliament enacts is law”.
At the core of the British constitution is the notion of Parliamentary sovereignty; and this in and of itself is in tension with any ‘project’ that may be advanced to ‘codify’ what he once called our ‘indistinct, indeterminate, and unentrenched’ constitution; regardless of the type of codification (be it a ‘lawyers’ constitution’ as per India or a ‘peoples’ constitution as per USA) adopted.
Different from Bentham’s fears of ‘ancestor worship’ (inevitable to a degree) this is not exactly a small detail. A codified constitution by its very nature, to a degree supplants Parliamentary sovereignty (witness the very different roles of the 1689 Bill of Rights (essentially asserting the rights of Parliament against the king) and its American equivalent). And if Miller/Santos [2016] is anything to go by (with both sides attempting to make use of Parliamentary sovereignty to buttress their Article 50 claims) it is less than clear that the time has arrived where such a radical departure from our constitutional tradition has yet arrived; in spite of the turmoil that has ensued following the unexpected referendum outcome.
This shifts the paradigm.
So much has been made of the ‘constitutional moment’; that quintessential game changing set of events (be it war/revolution/independence) that sets the scene for seismic constitutional reform, but much less analysis has been given to the nature of the impetus, the ‘constitutional momentum’ if you will.
Bogdanor has written extensively about the post-1997 constitutional ‘reforms’ (of which he lists 15 in his 2007 paper “Should Britain have a written constitution”), the constitutional independence of the Bank of England, the rise in the salience of referendums, devolution, electoral reform, the Human Rights Act 1998, the Freedom of Information Act 2000, the Constitutional Reform Act 2005 to name just a few; and just prior to the 2015 election he wrote of the “concatenation” of a whole variety of unresolved questions the constitution faces (the English Question/Asymmetrical Devolution/Crisis of Representation) wondering whether a game-changing ‘constitutional moment’ had or had not arrived. Well factor in Brexit and the threat of ‘indyref2’ and surely there has to be enough.
But there’s the rub.
The riposte may well be couched in terms of ‘unnecessary and unjustifiable’ but the key question will (as in all areas where law and politics interface) be, is there adequate political will; enough ‘constitutional momentum’ so to speak.
This takes as back to Gordon Brown. He was an undoubtedly a great thinker and few can doubt Bogdanor’s credentials in this area; but Brown was not a Margaret Thatcher or a Tony Blair. And in this Bogdanor is yet again very near the truth. To effect these kind of changes political will is just not enough any more (if it ever was). You need political ability. Specifically the ability and foresight to not only see the advantages that a codified constitution would bring but the capability of mobilising the ‘populus’ as you attempt to align constitutional ‘form’ with political ‘force’.
It was exactly what Cameron failed to do with regard to Brexit; as he clamoured to play a party political ‘card’ (appeasing the Eurosceptics) at the same time as (unsuccessfully) persuading the nation to vote Remain; never once seeming to connect his endless anti-Strasbourg rhetoric (prisoners’ votes etc.) with the rising pre-Brexit tide.
A constitutional ‘moment’ has certainly materialised but whether it will be enough to tip the balance in favour of a coded constitution remains to be seen. I am rather doubtful.
Parallels have been drawn with the 1830s (which spawned the Great Reform Act) and the first decade of the 1900s (which yielded the Parliament Act 1911). Well we have Theresa May’s Great Repeal Bill to look forward to, and it may be all that we can expect (even deserve) at this stage. If Scotland does finally secede and perhaps even Ireland reunite, it is not inconceivable that then, but only then, in the spirit of ‘damage limitation’ that Gordon Brown’s Charter 88 idea of `not just tidying up our constitution but transforming it’ will finally be taken seriously.
As John Locke established (Two Treatises of Government), though it may be in large part illusory we have an emotional stake in our constitutions, Bolingbroke articulated this in terms of constitutions having ‘values’, ‘goals’ as Tomkins puts it; at least for the time being the British remain attached to the ‘comfort blanket’ of Parliamentary sovereignty. As and (only) when the connection between this essentially anti-constitutional notion, and the escalating executive hegemony the last two decades has witnessed is made, may adequate constitutional ‘momentum’ be found to effect a change that in terms of constitutional ‘certainty’ and true popular democracy is long overdue.
