Opinion: Planning a new constitution for the United Kingdom

This is the time of year when there is much political reflection. The Queen’s Christmas message this year was one of Her Majesty’s best. Whilst not everyone listens avidly to our Monarch’s words, the tone and its conciliatory notes encourage sanguine thoughts.

I wish the Queen long life and look forward to a reign that significantly exceeds that of Queen Victoria, or even Louis le Grand.

The effects on the psyche of the United Kingdom of the Queen’s long reign undoubtedly run deep, especially in providing a canopy of permanence and stability. In today’s ephemeral world of celebrity, it is almost certainly fair to say that monarchists and anti-monarchists alike possess cognizance of the Queen’s remarkable behind-the-scenes subtlety and wisdom.

My New Year reflection is that there are strong arguments in favour of starting the development in 2014 of a special constitutional law – which brings together the current complex web of UK constitutional customs, quasi-constitutional legislation, and historical precedents, into a Únited Kingdom Constitution.

Such a project is likely to take more than a decade to complete, and there are significant stability-orientated reasons why such a process should best occur under this ‘canopy’ and in the presence of such ‘cognizance’. If such matters are brushed under the carpet and away from public view, any poorly-planned shorter term efforts are likely to have extremely serious effects on UK economic stability.

There would be potential threats to the nation’s role as a global financial & scientific centre and as a pivotal United Nations Security Council power in global security and governance, if public desire for constitutional clarity became dangerously messy.

There are many arguments in favour of a consolidated special UK constitutional law. I refer to three.

Firstly, whichever way the Scottish and EU-membership referenda go, there will be acquired a public taste for questioning the current constitutional system. The problem here is that the UK is not only one of three countries in the world without formal special constitutional law, it is also a country where the vast majority of its population know almost nothing about its constitutional structures, making for very serious unpredictability. How many people know what Orders in Council are, how treaties & legislation interact, or how the functions of the Head of State are exercised in practice?

Secondly, whilst nevertheless in need of major systemic reform, the UK has a military which is admired by the rest of the world with often astonishing capability given its budgets. The general public is acutely – but politely – aware that it has been deployed in three recent conflicts where the outcomes have been broadly negative – Iraq, Afghanistan and Libya. Whilst the military are not necessarily the cause of the ‘failure’ (see my Huffington Post article on South Sudan),  the public have sought better control over decisions to commit the UK military to new conflicts, and the Syria parliamentary debate was an earthquake in constitutional terms. It is irresponsible, and disrespectful to our military, to just let his issue loiter around.

Finally, with some transatlantic encouragement, the UK administrative system has been insufficiently resisted by the political and legal classes when ancient public protections have been chipped away at. Furious judges have been treated with some disdain for questioning why certain trials should be held in secret – and where both charges and evidence are withheld from defendants. Senior counsel have also publicly worried whether in some international cases, the ‘legalities are being fixed around the policy’. The disquiet among the UK’s senior legal figures has been gathering momentum. Absence of recourse to consolidated special constitutional law is starting to create a simmering crisis.

So my reflection for 2014 is that in the national interest, I wish to encourage the UK’s administrative and military elite, and our rival political parties, to consider carefully these arguments for constitutional development sooner rather than later.

* Paul Reynolds works with multilateral organisations as an independent adviser on international relations, economics, and senior governance.

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  • Max Wilkinson 29th Dec '13 - 10:57am

    “The effects on the psyche of the United Kingdom of the Queen’s long reign undoubtedly run deep, especially in providing a canopy of permanence and stability. In today’s ephemeral world of celebrity, it is almost certainly fair to say that monarchists and anti-monarchists alike possess cognizance of the Queen’s remarkable behind-the-scenes subtlety and wisdom.”

    Surely this ‘canopy of stability’ is unproven and, by virtue of the nature of the role of the monarch, can never be proven. We know little of the Queen’s behind-the-scenes work, other than unofficial and unverified fluff provided by establishment commentators.

    I have nothing against the royals personally and I’m sure they work very hard. But their continued presence at the top of our society is unacceptable to me.

  • Callum Hawthorne 29th Dec '13 - 11:07am

    That was utter policy wonk psychobabble. So much for reconnecting with the electorate through simple language and concrete values. Also the monarchy is anachronous and should be immediately removed.

  • jedibeeftrix 29th Dec '13 - 3:46pm

    “So much for reconnecting with the electorate through simple language and concrete values. Also the monarchy is anachronous and should be immediately removed.”

    I read the first sentence, and then the second, and then I laughed.

    you is funny!

  • Callum Hawthorne 29th Dec '13 - 8:50pm

    Regarding the disparaging remarks by the fellow member to my above post. Can I ask if the technical terminology and characteristic idioms used by our political and academic classes does concern them? Critical and controlled vocabulary is acceptable within the confines limpid prose, but not when it descends to the level of an argot.
    Thank you.

  • If we’re going to have a decade faffing around writing impenetrable constitutional documents, we’d better make them revolutionary. Learn the mistakes from the USA that a constitutionally limited government is not limited by much at all and will eventually grow to surpass the wildest fantasies of its authors.

    Also, there are some on the shelf from previous thoughts of change that could work quite well, such as Hume’s “Idea of a Perfect Commonwealth” or Fred Foldvary’s “cellular democracy”.

    The last thing we want is to codify the rubbish we have now.

  • Simon Banks 30th Dec '13 - 9:40am

    Paul has raised an important issue. As I read, though, I was puzzled by the almost exclusive focus on military matters and the lack of any suggestion of what the settlement might contain or how the debate might be structured and promoted.

    Jock has learnt some strange lessons from the U.S. experience. The American constitution has worked remarkably well in some respects, delivering a fair and searching presidential election during a civil war (states still mainly controlled by the Confederacy couldn’t be included for obvious reasons) and delivering rebuffs to presidents who got above themselves, notably by the mere existence of the impeachment power, which brought down Nixon when he saw he would lose. Other countries with written constitutions, for example the Bundesrepublik, have found them effective: the trick is in writing a sensible document!

    The US government is far more trammeled than ours: Watergate would almost certainly never have surfaced in the U.K. and the Snowden revelations have led to a vigorous debate on misuse of surveillance powers in the U.S., but smug indifference in the U.K., including with most M.P.s. In fact, the growing ineffectiveness of the U.S. government, so easily locked in immobility, can be blamed partly on its constitution and specifically the separation of powers as well as on cultural factors which have led to an exceptionally sharp political divide for only the third time in U.S. history (the others being the build-up to the Civil War and the reaction to the Great Depression). The answer to the deep problems of U.S. politics, though, would involve a new constitutional convention rather than an abandonment of written constitutions.

    Perhaps Jock has bought Tea Party and Fox News propaganda?

  • Christopher M Robins 30th Dec '13 - 10:21am

    I am a Brit living in the US.
    To have a constitution such as the US one is an invitation to make the government incapable of governing.
    An hour of Prime Minister’s Question Time has more life in it than a year in the US Congress.
    The US Constitution is engraved in granite and is incapable of being changed when required.
    The British “muddle-through” is much better.

  • Paul Reynolds 30th Dec '13 - 11:03am

    Two conclusions might be summarized from my short article…
    — Following the two referenda there will be need for a proper UK constitution for practical as well as political reasons
    — It will be preferable to start working on this PUBLICLY now while we have the monarch of the last 60 years still on the throne
    Thus I am disagreeing with the approach of recent years which had been to plan for a possible new constitution afyer the reign of Elizabeth II, away from public view.

    Incidentally the US Constitution is rather unusual since it serves both as a bill of rights and a treaty-like document which creates the union and defines the relative roles of Federal and State government. There is not even an appropriate reference to local government and is thus silent on the sub-state structures like counties that deliver all the services. The treaty-like characteristics also mean that it does not sufficiently confine the role of the Executive… a flaw which has permitted the President to act outside of the constitution. For example the full extent of decrees on Continuity of Government (51) are concealed from the legislature.

  • Paul Reynolds 30th Dec '13 - 4:06pm

    Carl makes some fair points. Indeed the case for a special constitutional law (we have lots of written constitutional law now – often misunderstood) will always be shades of grey.

    BTW I was partly schooled in the US and we were taught a lot about the constitution and debated it. Thus there is widespread awareness of the salient bits of it – unlike in the UK…. where there numerous and often extraordinary misconceptions. In the UK for example there is little awareness that a majority of legislation goes nowhere near parliament.

  • You are so right, Paul Reynolds. The amazing thing is that our show stays on the road. The 2 houses of parliament need a massive shake-up, the voting system for the HofC and for English local government is a catastrophe, and civics should be a subject in GCSE taken by all.

    Paul King

  • As someone specialising in Constitutional Law, it may surprise many (or may not) that I am incredulous of two points often raised in relation to this issue:

    1=That Britain does not have a written constitution.

    2=That Britain needs entrenched laws.

    Britain does have a written constitution; it is entrenched laws that it ‘generally’ lacks. Yes, our constitution is found scattered throughout hundreds of different texts, statute books and procedural codes (as opposed to one concise document), some of which are arcane to say the least, but it does exist in a written form.

    In relation to whether Britain needs entrenched laws, or not, two vital points are often taken for granted:

    i – that entrenched laws are inherently a good thing

    ii – that entrenched laws are fixed

    First, entrenched laws are like anything; they have some positive and some negative aspects. So, really, it comes down to whether one believes their positives to outweigh their negatives. I, personally, do not because I believe that the Law should be codes which govern the practical running of society. Society is is fluid and protean thing, so the Law, in my opinion, must be adaptable. When we write a piece of legislation, today, we should be doing so with the expressed knowledge that this may need changing, altering or even receding in the face of future challenges – or risk leaving our Laws facing the problems we have in relation to digital and instant communication, where Laws made decades before the first brick of a mobile was ever even seen are cumbersomely trying to govern the practices and usage of increasingly advanced and multifaceted devices. I feel that many entrenched laws by their very nature lack the flexibly and adaptability required to meet the constantly shifting needs of society; this is especially problematic when we consider just how unpredictable, violate and rapid the fluctuating nature of society is becoming. Now, more than ever, the Law needs to open to change.

    Now, I do realise there are some rights and concepts that we – as liberals – consider to be so innate as to be almost sacred. However, I feel these rights are better served and ensured as higher rights encapsulated in international articulates and treaties that provide principles that judges can draw from and put into the Law as necessary, as opposed to being constitutional rights. This is because this takes out of the hands of the legislature and executive and makes them accountable to higher international communities. Constitutions are by their very nature only as strong as the government is virtuous.

    This leads me onto my next point quite nicely. Entrenched laws are far from sacrosanct. Yes, they sometimes make it difficult to change their wording. The problem with words is that they are elastic and not just able to change, but subject to it. Words cannot survive without changing and altering over the decades. This means that whilst it is hard to change what it is written on the paper, it is not difficult to shift the meaning of that text. Many people harp on about the USA’s constitution and its immutable right to ‘own guns’. Actually, the ‘forefathers’ banned the ownership of guns; the constitution existed to protect the right defend the nation from totalitarianism and the right to bear arms was a part of that. bear meant something very different to own. However, individuals over time what used the sponge like nature of language to change that part of the constitution to mean something new – and many people’s eyes, something nefarious.

    It is for these reasons (and more) that I am somewhat sceptical of whether entrenched laws are an ageless and inalienable good.

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