How would the Attlee Government have fared against what was usually meant by a written Constitution? Why do you think that Lib Dems and New Labour types want one? As David Coates writes:
Whether it’s fiscal devolution or WASPI women, Andy Burnham has a knack for opening discussions on topics he seems not to have properly considered. The latest is his suggestion that his devolution proposals “increase the case” for a written constitution.
In the first instance, there is a technical difference between a written constitution and a codified constitution, which presumably is what Andy Burnham is recommending. Our constitution is largely written, but uncodified, and scattered through numerous Acts of Parliament, constitutional conventions, Parliamentary procedures and works of authority, such as Erskine May or A.V Dicey’s “Introduction to the Study of the Law of the Constitution”.
Typically, however, what people mean when they talk of a “written” constitution is a codified one: a specific document which provides the rules and structure of a community’s political system, and from which all political authority ultimately derives. Such, for instance, are the codified constitutions which operate in the USA, France, and Germany. In each of these instances, the constitution operates at a higher level of authority than mere legislation, and legislation which is passed contrary to the constitution can be struck down by the body responsible for interpreting the provisions of the constitution; in the USA this function is performed by the Supreme Court.
This constitutional approach is a “clean different thing” from the British settlement. In Britain, sovereignty resides — de jure — in the Crown-in-Parliament: legislation is passed by both houses of parliament, and becomes law upon receipt of Royal Assent from the monarch. No Parliament can bind its successor, and any legislation is open to repeal or amendment through the passage of a simple majority in Parliament. Although de jure sovereignty resides in the Crown-in-Parliament, in practice it is the House of Commons, responsible to the electorate at routine elections, which is de facto sovereign.
In countries which operate a codified constitution, it is that document which is the de jure sovereign. It is the highest law, and all else derives authority from it. It can only be amended, with enormous labour, by provisions contained within its own procedures, and in certain instances — such as the “eternity clauses” in Article 79(3) of the Basic Law for the Federal Republic of Germany — there are constitutional principles which cannot be amended by any mechanism.
A document can neither interpret itself, nor enforce itself. All documents require interpretation; hence the enormous clash between Catholics and Protestants over the authority not just of scripture, but more importantly its interpretation. The latter claim that the Bible contains a plenitude of material necessary to salvation — but who is to say what constitutes scripture, or to adjudicate what it actually means?
The constitution must have a body of people who are responsible for interpreting it, and this will necessarily be some body such as a Supreme Court. The constitution will be de jure sovereign, but in practice this legal priesthood will be responsible for adjudicating on a contested and contestable document. This body will be de facto sovereign, as they will have the full authority to interpret the provisions of both constitutional clauses and of legislative and administrative acts in order to determine their conformity with the constitution.
This leaves the basic legislative arrangements of the nation almost entirely outside the scope of responsible politicians who are democratically accountable to electors. To take a series of American examples, the Fourteenth Amendment to the US Constitution was adopted in 1868 as one of the “Reconstruction” amendments following the US Civil War. Intended to provide “equal protection” to all citizens, it was nevertheless interpreted by the US Supreme Court in Plessy v. Ferguson (1896) to be compatible with segregation, before the Supreme Court determined the opposite in Brown v. Board of Education (1954). No legislation dictated this, it was simply a different legal priesthood interpreting the same constitution differently. The Fourteenth Amendment was also discovered, 105 years later, to permit abortion in Roe v. Wade (1973), before different members of the Supreme Court discovered 50 years later in Dobbs v. Jackson Women’s Health Organization (2022) that it didn’t.
Is this the type of settlement that Andy Burnham is proposing? It is difficult to tell, as he has an irritating habit of raising complex issues and then swiftly dropping them once the complexities become obvious. However, it seems reasonable to assume that he is in favour of some manner of constitutional settlement which enshrines certain rights and political arrangements such that they are beyond the adjudication of the crown-in-parliament, and can only be amended by an amendment of that document.
This could operate something like a halfway-house between Parliamentary sovereignty and the constraints imposed on Parliament by legislation passed by it. We have this already, with the Human Rights Act (1998), which ultimately makes the administration of British law subordinate to the interpretation of the European Convention on Human Rights in Strasbourg. Similarly, our membership of the European Union severely constrained the ability of Parliament to determine immigration, trade, fiscal, and industrial policy. However, in both of these examples the constraints on Parliament ultimately derive from legislation which Parliament has passed, and which Parliament can repeal. Parliament passed the European Union (Withdrawal Agreement) Act 2020, removing this constraint, and would be able through a simple majority to withdraw from the jurisdiction of the ECHR.
If this is what Burnham is going for then it is merely a frustrating addition to the general trend of deferring important political decisions to bodies which are politically irresponsible. We have already seen his hostility to the prospect of local authorities using their fiscal powers to reduce tax and spending. He is only in favour of devolution to the extent that those bodies do what he wants them to do. If he is to create a new structure of local government he will do this through primary legislation in the houses of parliament. Even if he gives this framework the veneer of a ‘constitution’ it would remain repealable by Parliament, just as the Fixed Term Parliament Act (2011), which imposed severe constraints even on the possibility of simple majorities forcing a general election, was nevertheless repealable through a simple majority.
However, if Burnham is legitimately hoping to establish a fully codified constitution on the American, French, or German model then he needs to reckon with the consequences of an entirely new political order, which reverses centuries of British constitutional development, and which would establish an entirely new model. The establishment of such a constitution would need to effectively abolish the Houses of Parliament as it is presently constituted and elect new bodies in their place, which would not themselves have the power to amend the constitution which gives them authority except through the mechanisms the constitution itself provides. As the House of Commons is currently responsible for determining the Prime Minister — who remains so only for as long as he retains the confidence of that House — this new constitutional settlement would need to entirely replace our whole approach to governance and authority.
One consequence of this would be that whatever ideas happened to be the political obsessions of the day would become permanently enshrined in law and would be astonishingly difficult to change; America’s 2nd Amendment enables gun laws which were no doubt perfectly appropriate to the late-eighteenth century, but which are less appropriate in the year of that nation’s 250th anniversary. Burnham has suggested his constitutional settlement could contain a ”commitment to equivalent living standards”. The mind boggles at the thought of what our courts — who are already dictating to supermarkets what wage differentials they are permitted to offer to different job types — would do with such authority.
The most disappointing element of the “Burnham kite” however, is that it fails to recognise that the absence of a codified constitution is Britain’s greatest boast. When a society breaks down, when law is suspended, when invading armies occupy your country or dictators seize power — in each of these cases a blank slate is created on which a constitutional settlement needs to be imposed. Britain has never had this. Our constitution is not codified, but it is the gradual development of centuries. Despite all the vicissitudes of politics, wars and civil conflict, our constitution has endured and flourished. To abolish it, in order to imitate the second-order arrangements which have endured on the continent, and which have been created out of the necessity of destruction, would be a grotesque innovation by Andy Burnham, who would be casting away a pearl richer than all his tribe.
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