Opinion: Federalism and Constitutions

When I was 17 I took AS level politics, it was possibly the most unpopular subject in school,  my most abiding memory of this class  was talking about constitutions. We went into great theoretical depth about the type and purpose of constitutions before discussing whether or not the UK should have one. Everyone just assumed that having a codified and entrenched constitution (aka written constitution) was a far off fantasy that served no real purpose; we hardly even bothered mooting the positives of such a document.

The Scottish independence referendum has made it abundantly clear that the UK will be changed forever. A central plank of the Yes campaign was the writing of a new constitution. The very fact that no one, on either side, questioned the need for an Independent Scotland to have a constitution shows that people in the UK aren’t uniquely incapable of grasping the case for a constitution but rather the fact that things seem to be OK right now so why bother? There is, simply put, no impetus for a UK constitution.

For hundreds of years the UK has muddled through with a plethora of bills, bits and pieces of legislation gathered from hither and thither and the odd royal prerogative thrown in for good measure and called it a constitution. The truth is that this system gives us as citizens very little protection and is unnecessarily convoluted precisely because it is spread so thinly over thousands of documents written over centuries. In addition to giving Scotland more powers David Cameron has promised to look at devolving powers across the rest of the UK, decentralising powers from London into new institutions. An English Parliament, regional and city assemblies have all been suggested as vessels of more devolution, but the truth is that, ultimately this will move Britain away from being a unitary state and towards a federal one.

In a federal state a codified constitution is of vital importance, not just to ensure the inalienable rights of all citizens, which is of course important, but also to delineate which institution gets which powers and prevent clashes between central and devolved governments. Already we have seen clashes between the UK and Scottish governments over who can do what.. A constitution delineating the rights of different legislatures, especially if different assemblies have different levels of powers, could prevent clashes between central and devolved governments.

While the level of engagement sparked by the referendum couldn’t hope to be replicated by the process of writing a constitution it could have very real implications for day to day life.  If the majority of people feel that it is absolutely essential for the NHS to remain in public hands then why not constitutionally protect it from privitisation? The idea of a constitutional convention’ type process where ordinary people are the central part of that process may also dent the idea that politics in this country is necessarily a sort of “us v them” activity where a ‘Westminster elite’ conspires to disenfranchise the people.

Most nations write constitutions after revolutions or bloody upheavals where lots of people lose their lives but in the UK there is a very good chance that we are about to see power shift from the centre and it seems like an opportune moment to write ourselves a constitution peacefully. Traditionally there has been no desire for a written constitution as there has been no pressing need for one, even though the democratic advantages of a constitution are desirable. However, a UK wide devolutionary process could provide the catalyst as we restructure how we want the UK to look.

* Hamish Mackenzie is a Liberal Democrat member who works for a Liberal Democrat MP

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8 Comments

  • David Evershed 2nd Oct '14 - 3:35pm

    My suggestion is that rather than having a codified constitution we should have a (short) set of principles which can be applied to situations as they arise.

    Codified rules are generally applicable to past known problems not the next unknown and unknowable situation.

  • jedibeeftrix 2nd Oct '14 - 4:22pm

    I still don’t see the need for a written constitution.

  • Perhaps we should have a referendum on whether the UK should have a written constitution?

  • David Allen 2nd Oct '14 - 5:47pm

    Basically, we don’t need a written constitution. We do, however, need to stop the headlong rush to replace an unwritten constitution that “sort of works” with back-of-fag-packet devolution measures which will prove to be a disaster. Demanding a written constitution, in these special circumstances, makes very good sense. It will slow things down, make people think about the problems, and probably stop the lemmings short of the cliff edge.

  • A constitution is a dead letter unless it supersedes and permanently replaces Parliamentary supremacy (which is itself theoretically derived from royal supremacy) with constitutional supremacy. In a true constitutional régime, the institutions of monarchy, government, parliament, courts, and so forth derive their authority from the document (which in turn takes its authority from the endorsement of the people), rather than the constitution taking its authority from Parliamentary act and royal assent. Such a constitution could not be unilaterally abrogated or emended by any one authority, including Parliament.

    If, however, the constitution is just a unified code of existing law promulgated by Parliament for the sake of simplicity, then it is not really a constitution; it is just another law that Parliament can repeal or replace or alter or emend or supersede at its whim, and as such rather pointless.

  • jedibeeftrix 2nd Oct '14 - 6:19pm

    “A constitution is a dead letter unless it supersedes and permanently replaces Parliamentary supremacy (which is itself theoretically derived from royal supremacy) with constitutional supremacy”

    ^ This is exactly why i don’t want a constitutional federal state. ^

  • Hamish
    Your assertion that —“…Traditionally there has been no desire for a written constitution as there has been no pressing need for one….” is just not true.

    At the time of The English Civil War people argued for a “proper settlement” to prevent the return of over-mighty Kings or tyrants.
    The 1688 so-called Glorious Revolution (which I recall Jo Grimond describing as neither glorious nor a revolution) was believed by some to have been a step in that direction.
    The arrival of George the first from Hanover resulted in further demands to clear up the constitutional mess.
    The examples of the USA and then France in the latter part of the eighteenth century were much quoted in discussion in this country.
    In the nineteenth century The Chartists listed a number of simple demands (annual parliaments, universal suffrage etc) which would have been the basis for a written constitution.
    Republicans in England in the latter years of Queen Victoria demanded a proper written constitution.

    So there has been a running demand over the centuries from people who wanted to regularise the constitutional arrangements of this country and move on from the nonsense of semi-feudal arrangements which were sufficiently vague to enable the rich and powerful to hang on to their privileged positions.

    Unfortunately so many schools do not teach history but instead fill our children’s heads with a bromide of ‘Stories of Kings and Queens’ .
    It is just not true to say that there has never been a demand for a written constitution.
    There have been plenty of demands, but they are air-brushed out of history with every royal wedding and royal jubilee.
    These royal bread and circuses seem to work for those who do not wish to bring about a more equal or more efficient society.
    Perhaps instead of learning about constitutions at school you should have spent a bit more time on history.

  • The Commonwealth of England, Scotland, and Ireland was governed (at least nominally) under a written constitution from 1653 to 1659.

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