By stewartb – a long read

The constitution of a nation-state ‘sets the rules according to which a society is organised’ – ‘constitutions reflect a country’s history, traditions and circumstances’.  

These are shorthand characterisations offered in the first (50 page long) report to emerge from an ongoing Review of the UK Constitution by the Institute for Government (IfG) and the Bennett Institute for Public Policy, University of Cambridge. Their aims are to examine the purpose of constitutions; to assess how the UK constitution fulfils that purpose; to highlight problems with the UK’s constitution that are being revealed; and to offer views on whether and how it needs to be reformed.

Source: Jack et al (2022) A framework for reviewing the UK constitution. Institute for Government report 50pp. (https://www.instituteforgovernment.org.uk/sites/default/files/publications/framework-reviewing-uk-constitution.pdf )

Scene setting

The London-based IfG and its collaborator, the Bennett Institute are, it seems reasonable to assert, embedded in and credible with the British/English political establishment: see the membership of the IfG’s board! They also undoubtedly have intellectual heft. Therefore, it’s reasonable to assume they are well informed on Westminster and Whitehall views on the working of the UK constitution. And it MAY also be reasonable to assume they have no immediate ‘skin in the game’ regarding Scotland’s independence, other than perhaps to favour, if asked, continuation of the Union, albeit a Union reformed.

For these reasons, insights from this Review have credibility and value. It’s also timely to post on this subject given the latest Scottish Government paper on a new constitution for an independent Scotland.

Why does this matter?

The IfG/Bennett Institute report asks: ‘What is the purpose of a constitution?’ It offers two different but not mutually exclusive concepts:

Report Page 13: ‘The first is to place limits on the power of the state and protect citizens from arbitrary power. …  a well-functioning constitution will protect individual rights and liberties and prevent democratic systems from descending into autocracy’.

‘The second conception is that constitutions empower the state to act on behalf of citizens’. …. a good constitution needs to facilitate effective government and be capable of bringing about the common good.’

Both concepts confirm that a constitution is important to all citizens and at all times. A constitution is really NOT some ‘high-flown’ or ‘academic’, remote legal construct: on the contrary, it is fundamental to the rules and practices under which governments and parliaments operate to the benefit – or dis-benefit – of citizens. It is intimately involved in the political conduct of the UK’s democracy with all the engrained limitations that we in Scotland experience within this Union.

As will become clear, and notwithstanding the merits of these basic concepts, the historical evolution of the UK’s constitution has been, its present working is, and any future reform (or barrier to reform) will be determined by choices made in England. And when the IfG/Bennett Institute report notes ‘Whether playing a limiting or harnessing role, constitutions deal with where power lies, who can exercise it and under what conditions’, the significance of the absence of power, the absence of effective agency for Scotland’s residents and voters in Westminster becomes palpable! 

Why this Review now?

As the IfG/Bennett Institute report explains (Page 10): ’.. the last five years have reignited questions about the proper functioning of the UK constitution. This debate is not new, but Brexit has served as a catalyst for experts, academics and practitioners to re-examine parts of the constitution and consider how it should function as the UK adapts to life outside the EU political institutions.’

And also on Page 10: ‘The public’s lack of faith in the UK’s system of government is startling; in the 2019 Hansard annual engagement survey, opinions of government were at the lowest they had ever been in the 15 years the survey has been running. Failure to tackle the question of whether the UK’s constitution is functioning well could allow public doubts about the legitimacy of the governance of the UK to grow.’

So right up front, in the report’s introduction, the negative, destabilising constitutional impact of an event that was ‘England’s choice’ is made explicit!  From reading the whole report, it is notable that an event in 2014 – the one when c. 45% of a constituent part of the UK voted to dissolve the Union – (apparently) did not similarly ‘reignite questions’ about the functioning of the UK constitution, at least in the view of these authors. Revealing another facet of an Anglo-centric viewpoint?

And of course the concerning results of the Hansard survey can only be the legacy of successive Westminster governments i.e. ones that were elected by majorities in England, because since 2010, and often beforehand, ‘England’s choices’ of government have most certainly not beenScotland’s!

Characteristics of the UK constitution

As one reads the following, it’s worth keeping in mind the agency (or more correctly, the lack of it) in relation to Scotland’s representation in the Westminster parliament and in the workings of Whitehall – both historically and presently.

P12: ‘… the UK constitution is unusual in that it has no codified set of fundamental or basic laws. Instead, there are many texts and sources – dating back as far as 1215 and Magna Carta – including ordinary legislation, conventions understood through precedent and set out in various executive and parliamentary sources, unwritten rules and practices, and formal codes of conduct. No constitutional documents set out all possible applications, but most set down the rules and principles of government and rights in writing. There are not many other countries that have uncodified constitutions.’

P13: ‘The absence of a single document in the UK could be attributed to the fact that, unlike many other states, it has not had a single constitutional moment at which the state has been created or reborn. Early political upheavals such as the English Civil Warof the 1640s and the 1688 ‘glorious revolution’ resulted in changes to England’s governing arrangements, and were followed shortly by the 1689 Bill of Rights. But both of these predated the conception of a modern constitution and as the constitutional academic Martin Loughlin has observed: “Since the 17th century, there has been no fundamental breakdown in governmental authority that would cause the English to reconstitute themselves politically.’  It’s worth re-reading the last sentence – with its ‘would cause the English’ – and then reflect on the meaning of ‘Union’!

Moreover, for the 21st Century this is a remarkable characterisation of the constitution under which the residents of Scotland are governed: ‘no codified set of fundamental or basic laws’; reliant on ‘conventions understood through precedent’; reliant on ‘unwritten rules and practices’. And all of these established through choices made by institutions dominated by England. The vast majority of residents of Scotland – even since universal suffrage – have NEVER had an effective input to how all this has come about.

Secondly, two things are notable from the account given in the IfG/Bennett Institute report: (a) the 1707 Acts and Treaty of Union are not mentioned: by implication, 1707 was NOT a ‘constitutional moment at which the state (the UK) has been created or reborn’; and indeed (b) all the events that are mentioned pre-date the Treaty of Union, i.e. they refer to the origins of England’s – now the UK’s – constitution!

The report also explains at length that:

• the absence of codification and the principle of UK parliamentary sovereignty mean that constitutional norms and conventions are the primary means of ensuring appropriate limits on the exercise of power within the UK
• these are subject to interpretation, and debate over what is and is not, or ought or ought not be, a constitutional rule is a consistent feature of UK politics
• many of the checks and balances in the UK political system rely on individuals exerting a type of ‘soft power’ – preventing others from pursuing a particular course of action or exercising their powers to excess for fear of political, rather than legal, consequences
• where there are guidelines, for example the ministerial code, decisions to censure misbehaviour come down to politicians’ judgment rather than any legal process; in the case of the ministerial code this falls to the prime minister
  • the Whitehall historian Peter Hennessy refers to this as the “good chaps” theory of UK government – that those who enter high office know what the unwritten rules, conventions and norms are and are willing to follow them. (This) is central to maintaining broader trust in the way the UK is governed.

This is working out so well! Having emphasised the importance of norms and conventions in the working of the UK constitution, the authors conclude (P24): ‘Constitutional actors are able to ignore norms and conventions – and appear to have an increasing appetite for doing so’.

The report argues that checks on power are effective ‘only as long as constitutional actors feel bound by them.’ And it notes (P25):  ‘in recent years some of this group have shown an increased willingness to push constitutional boundaries, with the risk of inadvertently altering them in the process. In 2019, Hennessy and the political scientist Andrew Blick argued the political upheaval during the Brexit process exposed the limits of this constitutional model, offering various possible explanations: that it is increasingly difficult for actors to identify the correct course of action; that there are fewer “good chaps” in this political environment; or that there are fundamental flaws in this system of governance.’ 

In a ‘guest’ contribution to the IfG/Bennett Institute Review, Philip Rycroft, the former senior civil servant who played leading roles on behalf of the UK government in preparing for the 2014 Scottish independence and then 2016 EU referendums, states:

‘Despite periodic bursts of reform, much of the constitutional architecture remains deeply contested and lacks a basic coherence. More erratic than systematic, evolution has not delivered fitness for purpose.’

Source: Rycroft, P. (2022) Not by design – the erratic evolution of the British constitution since 1997. (https://www.instituteforgovernment.org.uk/sites/default/files/publications/IfG-Bennett-guest-paper-philip-rycroft.pdf )

His critique of the status quo continues: ’The ramshackle nature of the British constitution may not be a direct driver of popular discontent, but there is evidence that the democratic fabric is wearing thin. Trust in politics and politicians is plumbing new depths. … Whatever the merits of specific constitutional reforms, the net result has not left the British constitution in a state of robust health, capable of commanding assent and respect across the country.’

Rycroft again emphasises political factors, the very ones where Scotland’s input will always be severely limited by electoral arithmetic: ‘.. there has been a marked failure to deliver a coherent and enduring outcome. Why is this so? With no written constitution, there are no set guiderails to marshal constitutional change, either in terms of the process to follow or to force systemic coherence. But the lack of a written constitution is more a symptom than a cause. The way in which constitutional change is managed is ultimately a consequence of political culture. That is the core issue this paper seeks to address – the relationship between the political process and constitutional change – to seek an explanation as to why constitutional change in the UK has been so inchoate, inconsistent and contingent.’ 

One might ask: ‘who’s is the dominating political culture being referred to here?’ It can hardly be attributed to Scotland, again because of electoral arithmetic alone!

Rycroft adds: ‘With no wider checks or balances, there are only weak incentives on political actors to subordinate short-term political calculation for long-term constitutional coherence. As a consequence, even major constitutional decisions can be motivated by narrow party advantage and can be taken by very small cliques of politicians who hold the keys to power.’  Scotland’s residents and voters have precious little impact on the Westminster Parliament as a whole so what impact can they have on ‘small cliques of politicians who hold the keys to power’? Zero?

Rycroft expands: ’The signs of erosion are clear. The Boris Johnson government, with a majority exaggerated by the first-past-the-post system, on a mission to deliver a hard Brexit outcome in the teeth of opposition from nearly half the population and explicit rejection from two parts of the UK, did not show itself sensitive to the niceties of constitutional convention. Attempting to prorogue parliament in defiance of accepted norms, threatening to break international law, having a cavalier attitude to the enforcement of parliamentary standards, undermining the devolution settlements through the United Kingdom Internal Market Act 2020 and introducing laws such as the requirement to show ID in polling stations, all chipped away at confidence in the constitutional framework.’

And crucially in the face of all this, Rycroft notes: ‘Parliament itself has not asserted its prerogatives against a drift towards greater executive supremacy’.  He is of course referring to that parliament where Scotland’s elected representation must always be tiny.

End note

The commentary on the UK constitution is especially remarkable in a report from a body such as the IfG. All of what is written here may well be true – and yes, even very troubling for the more enlightened citizens of the UK who live and vote in England. However, residents of England at least have the ‘comfort’ – due to weight of numbers – of having been involved, of having democratic agency, in endorsing or at least acquiescing to the continuation of this problematic constitutional situation since the introduction of universal suffrage.

These matters have a markedly different democratic significance when viewed from the perspective of Scotland’s electorate. Quite simply, no effective agency for Scotland’s residents on important UK constitutional matters has EVER existed within the Union, before or after universal suffrage – except, arguably, on three individual days separated by decades when referenda (two on devolution and one on independence) were held!

And as the Labour Party’s man in Scotland has just stated – you’ve had your last referendum. You may have seen reports of a recent TV interview with the Shadow Secretary of State for Scotland, Ian Murray MP in which he states, in terms, that a Westminster Labour government ‘would not give them another referendum’ on Scottish independence. Here the Labour leadership is relying on what is effectively England’s chosen constitution where ‘small cliques of politicians’ can themselves choose what democratic principles to set, to follow or flagrantly to disregard!

Interestingly, Rycroft’s paper has this: ‘The sovereignty of the Scottish people had long been recognised, at least in theory, by British prime ministers, including Margaret Thatcher. But the Scottish devolution settlement contained no clause akin to the Border Poll clause in the Northern Ireland Act 1998 that determined when that sovereignty might be exercised.’ 

Labour seems determined (just like the leadership of the Tories and the Lib Dems) to ensure that such sovereignty and its exercise henceforth is simply and always to be denied to the people of Scotland. A constitutional outrage perpetrated within a nation-state with a ‘ramshackle constitution’ in which small political cliques hold the keys to power!