Clarity and the Constitution

Among the spate of initiatives announced by Andy Burnham in his first week as the UK’s Prime Minister is his proposal for greater devolution of powers to the regions and the idea of codifying the constitution. This is a particularly exciting move for those, like me, who have been urging this for a long time. During Gordon Brown’s time as Prime Minister I had the interesting experience of being invited to participate in a discussion at No 10 about codification; Brown intended to announce moves towards codification on the anniversary of Magna Carta if he had a second term, but alas his time at No 10 was too short.

A preliminary essential: if people use the expression ‘a written constitution’ it is a signal that they don’t really know what they are talking about. The correct expression is ‘codified constitution’. In the UK’s case, part of the constitution is indeed already written, in the form of statutes and other instruments; but too much of it consists in traditions and ‘understandings’ – as has been well said, ‘understandings that no-one understands’. ‘Codification’ means setting everything out with clarity and order, so that everyone knows their rights, people elected or appointed to positions of authority know their duties and the limit of their powers, and the rule of law prevails.

At that No 10 meeting Brown’s advisors who sat with a small group of us in the State Dining Room opened the meeting by talking of a ‘written constitution’, which immediately rang alarm bells for me. So I asked ‘Do you mean that we should write down the constitution as it stands – a messy and prolonged business, with much disambiguation and historical analysis to be done, though not too politically contentious; or do you mean, write a constitution, in which case we could take Germany’s Basic Law (Grundgesetz) – which British lawyers had such a significant role in shaping in 1948-9, laying down the principles, reviewing the document as the Parlamentarischer Rat produced drafts, and eventually (with the other Allies) signing off on it on 12 May 1949 – and work from the rather good format thus provided. This would be the more contentious, but better, option. Which?’ I was met with a somewhat bewildered stare, the distinction involved apparently not having registered until that point.

The case for a codified constitution, providing that it contains good means within itself for periodic renewal and refreshment by a due process, is powerful. Moreover, the history of constitution-making since the inception of the US in the late eighteenth century teaches excellent lessons about what and what not a constitution should look like. This is the right moment in the UK’s history for the blurry shambles of its arrangements to get a thorough makeover. Andy Burnham is right, and this is one of the half-dozen things he is proposing to do, and/or could do, that would lock his place in history.

Both the US and the UK constitutions as they presently stand are the extremes of what not to do. Jill Lepore’s outstanding book We The People explains most of why this applies to the US Constitution, the good things in which come dragging chains – literally, in the case of its initial drastic failure to deal with slavery. For the inadequacies of the UK constitution one has to rummage about in history and the writings of constitutional nerds to get the full unpleasant picture; public understanding of it is next to nil, which is much less the case in the US where certain of the provisions and the amendments are very much alive in public debate.

In thinking about what a codified constitution should look like, one has to put it in the context of considerations about the real effects of politics, economics and social complexities and the motives and goals that are their dynamics – not in the parochial sense of how these currently are in a given country at a given moment, but in the sense of the larger patterns they exemplify. This is one of the reasons why a constitution has to specify means for its own periodic renewal and refreshment. Some of the US founders proposed a mechanism for formally revisiting the Constitution every twenty years to adjust it according to evolving circumstances, a wise idea that was alas not adopted. The time frame is a matter for debate, but the principle is good. But the idea of placing the fundamentals of a constitutional arrangement within a wider conspectus of its setting is why, in my The Good State (Oneworld 2020), I do so. As happened with the writing of federal Germany’s Grundgesetz after the Second World War, the aim was to identify the principles of democracy and human rights that provide the parameters within which the specific provisions for governance and political activity are best shaped. Entrenching the rights and civil liberties of citizens, placing the law above the whims of individuals or the agendas of factions, and ensuring that government has the expressed consent of the people, are key.^[1]

Two illustrative (and in the US case, familiar) examples of why having a good constitution matters are as follows.

As remarked, the constitutions of the US and the UK stand at opposite ends of a polarity, the one fixed almost to the point of fossilization, the other uncodified, opaque, and labile to the point of vacuity. Examples that prove these points are respectively American gun laws and British referendums.

The US Constitution, adopted in 1789 and amended twenty-seven times, has the character of holy writ, sometimes defensibly so – as with the First Amendment rights of free speech, freedom of assembly, and entrenchment of secularism – and sometimes indefensibly so – as with the Second Amendment ‘right to bear arms’, an outstanding example of how a constitutional provision can subvert its raison d’être and do harm.

In the case of the Second Amendment the harm consists in gun-caused fatalities amounting, at time of writing, to 40,000 per annum – 110 a day, nearly five an hour, about one every twelve minutes. The text of the Second Amendment reads, ‘A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ The great debate over whether this was a right of individuals or a right for ‘the people’ to maintain a perpetually armed militia, was settled in 2008 by a Supreme Court judgment in favour of the ‘individual right’ reading, reversing a 1939 Supreme Court decision that went the other ‘collective right’ way.

The constitutional point that needs to be made about the Second Amendment concerns not just the intentions of its drafters, but more materially the fact that when it was adopted the ‘arms’ in question were muzzle-loading muskets. Today the arms bought by people who commit mass murders at schools and elsewhere include automatic assault weapons such as the AR-15 rifle. This weapon, which comes in a number of varieties, can be legally purchased at the age of eighteen in states where it is illegal to purchase any alcoholic drink, including beer, under the age of twenty-one. Enthusiastically described by the National Rifle Association (NRA) as ‘America’s rifle’, it was used in the following massacres: the Sandy Hook Elementary School shooting in 2012 (in which 20 children aged six and seven were killed), the San Bernardino shooting in 2015 (14 killed, 22 seriously injured), the Las Vegas shooting in 2017 (58 killed, 422 wounded), the Sutherland Springs church shooting in 2017 (26 killed, 22 injured), and the Stoneman Douglas High School shooting in 2018 (17 students and teachers killed, 17 injured). This is not an exhaustive list. The Columbine High School killing of ten students in 1999 prompted Michael Moore’s film Bowling for Columbine (2002), which challenged American gun culture and therefore the tenability of the Second Amendment; it was a powerful indictment, but it changed nothing.

Expressions of horror and sadness pour out on every occasion of the gratuitous loss of life to gun violence; yet the tragedies continue, and the Second Amendment stands. This is an example of how a constitutional provision which is no longer fit for purpose is kept in being because it serves the interests of a powerful lobby able to thwart efforts to amend it. The NRA argues that ‘it is not guns that kill people but people who kill people’, a claim whose spuriousness is immediately obvious when one ponders this: imagine two equally populous countries with equal numbers of murderous individuals in them. In one, it is fairly easy to get guns. In the other, there are no guns, so the murderous have to resort to knives and baseball bats. Consider the relative effectiveness of the means available to these murderers. It is hard to see how an individual with a knife could achieve what the mass murderer in Norway did in 2011, killing 69 young people in a shooting rampage at a Youth League summer camp, or what the mass murderer in Las Vegas achieved in 2017 in killing 58 people, or the mass murderer who shot to death 51 people in two mosques in Christchurch, New Zealand, in 2019. (Among the five weapons used by this murderer was an AR-15 rifle.) Compare the action of the Australians following the use of an AR-15-type weapon in the shooting at Port Arthur in Tasmania in 1996, in which 35 people were killed and 23 wounded; Australia imposed gun controls, banning private ownership of weapons with a capacity of more than five rounds.

At the opposite end of the spectrum, and far worse, is the UK’s ‘unwritten’ – more accurately, uncodified – constitution, consisting partly of statute and in significant part of conventions and traditions. The fault of a constitution that is as ambiguous and misty as this is that it is open to manipulation. This consideration is not merely theoretical. Here is a pertinent concrete example: the innovation of referendums in the UK. Until 1973 referendums were not part of constitutional practice in the UK, given that they are inconsistent with the concept of representative democracy in general, and the original Westminster Model’s own doctrine of parliamentary sovereignty in particular. But the major change portended by joining the then European Economic Community in 1973 caused such divisions within the governing party – the Labour Party – that its leader, Harold Wilson, decided to take the matter out of politicians’ hands and put it to the people. On 5 June 1975 the people approved the change by 67% to 33% on a turnout of 64%.

Wilson was able to do this because of a precedent-breaking decision to hold a referendum in 1973 in Northern Ireland on whether it should reunite with the rest of Ireland or remain part of the UK. Until that point, great matters requiring non-partisan consideration outside the adversarial arena of politics were considered by specially appointed Royal Commissions, panels of representative experts who took their time to scrutinize options, take specialist advice, discuss and reflect, and then report their recommendations to Parliament. At times Royal Commissions were used as a way of kicking temporarily difficult topics into the long grass, so that when at last a report was submitted the matter would have gone cold or been forgotten.

Since 1975 referendums have taken the place of Royal Commissions as ways of dealing with matters that a government, or Parliament as a whole, cannot or will not decide – even though in a representative system it is precisely Parliament’s duty to do so. Indeed, prior to 1973 referendums were regarded as unconstitutional and ‘alien’ to the system of representative democracy in the UK. Winston Churchill proposed holding a referendum in 1945 to see whether the people wished his coalition government to remain in office until Japan was defeated, but the Labour Party leader Clement Attlee, serving as Deputy Prime Minister in the war-time coalition, said, ‘I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum which has only too often been the instrument of Nazism and Fascism.’

Some think that referendums are par excellence instruments of democracy. To think this is to fail to see the force of arguments for representative democracy. The complexity of most matters to be decided and acted upon by government requires consideration, expert testimony, discussion, and judgment. That is why the enfranchised elect representatives – not delegates or messengers – to attend the legislature and to do a job of work on the electors’ behalf: the work of getting the facts, exploring them, listening to argument, debating, and deciding on the course of action to be taken. Very simple matters that can be formulated as unambiguous questions admitting of yes–no answers are suitable for referendums; when complex matters of constitutional significance are at stake, a referendum has to be very fully prepared with copious opportunities for information and discussion beforehand, and full and accurate assessments of what would follow if a change were made. Switzerland is offered as the principal example of a democracy based on frequent referendums, but it proves instead to be an example of low turnouts and conservative outcomes as the norm. Worst of all, by their very nature referendums cannot reflect diversity and nuance of opinion, and therefore violate the democratic principle of representation itself. Their utility as instruments of ‘Nazism and Fascism’, as Attlee put it – more generally, of populism – resides precisely in the crude character of binary options in response to necessarily simplistic questions.

There have been eleven referendums between 1973 and 2016 in the UK. Three of them have been on a nationwide basis (1975 on EEC membership, 2011 on proportional representation, 2016 on EU membership); most of the others were regional, mainly concerned with devolution of government powers to Scotland and Wales. Despite general provisions for the conduct of referendums in the Political Parties, Elections and Referendums Act 2000, relating to financial limitations and the duties of Counting Officers, there is no blueprint prescribing a consistent format for the conduct of referendums and a clear account of what will follow on their outcome.

Technically, all referendums can only be advisory because Parliament is sovereign; this leaves it open that Parliament might or might not act on the outcome of a referendum depending on its degree of willingness in either direction. Parliament could decide to act in a manner contrary to a referendum result and legitimately claim that it was fulfilling its representative duty to act in the best interests of the country. Or a government in power could make a political undertaking to regard itself as mandated by an outcome to act one way or another, even though constitutionally it is not so obliged. As a result there have been formal and informal inconsistencies in the way that referendums have been run and their outcomes treated. The referendum on devolution for Scotland in 1979 required a minimum threshold for a Yes vote of 40% of the electorate for devolution to happen; on the day of the vote a majority was in favour, but the threshold was not reached so devolution did not happen: 51.6% supported the proposal, but this was only 32.9% of the electorate given the turnout of 64%. That percentage of the electorate would rightly be considered wholly insufficient for major constitutional change.

In the nationwide 2011 referendum on proportional voting, the Act of Enablement for the referendum stipulated that the outcome of the referendum would be binding on the government. This provision is unique among the referendums held to date in the UK. The level of public information and preparation for the referendum was extremely poor and the turnout low at 42%; the only regions of the UK declaring themselves in favour of proportional representation were Oxford, Cambridge, and central London – a speaking fact.

In the 2016 referendum on EU membership, 37% of the electorate voted in favour of leaving; on the day this amounted to 51.89% of votes cast. The government had pledged itself politically to be bound by the outcome though the referendum was officially ‘advisory only’, so even though the 37% result would in all other circumstance be regarded as wholly inadequate for major constitutional change – indeed, even if the 51.89% had been of the total electorate, the question of legitimacy would remain – the government immediately and without due preparation plunged into the upheaval of the Brexit process.^[2]

The Brexit example is by itself a stark example of the need for the clarity and propriety of democratic processes. On a not-too-jaundiced view, the Brexit vote of 2016 was a coup, one which – if referendums were regarded as legitimate, and a standard process existed for the franchise, the threshold required, and the duties of the sitting government to consider whether and if so how to administer the outcome – were set and clear, would not have happened.^[3] The UK was unprotected because it did not have a clear constitutional arrangement in place, leaving it open to highly partisan actors to manipulate the situation and put in train the major damage that is now, as the succeeding decade shows, an empirical and undeniable fact.

Tom Paine described a constitution as being ‘to liberty what grammar is to language’. That is a good analogy. It is high time that the language of the UK’s method of governing itself for the benefit of all its people had a grammar.

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^[1] The Good State is not intended as a technical book about constitutions and voting systems, but about the need for identifying the overarching considerations that need to govern the formulation of constitutional technicalities – a point some reviewers, writing from among the weeds of technicality, missed. (Philosophers are apt to poach on experts’ territories, to the latter’s irritation.) A project for a constitution has to start top-down from principles, not bottom-up from the mathematics of voting systems; I started from the top. Chapter 5 does, however, get a little closer to the weeds, but specifically in light of the key principles mentioned.

^[2] These illustrative passages are reprised from op. cit.

^[3] The case for this claim is Democracy and its Crisis (Oneworld 2017); and prompted the writing of its successor book.