Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading

Election replay with the experts: looking back at the 2019 general election

luke_moore1_500x625_0.jpgThe 2019 general election is now complete, but there is still plenty to say about the campaign, the rules that governed it, and the new parliament it has produced. Luke Moore summarises the contributions at our final seminar of 2019, where Unit staff were joined by other experts to dicuss the lessons of the election.

On Monday 16 December the Constitution United hosted an event entitled Election Replay with the Experts, at which four leading political scientists, including the Director and Deputy Director of the Constitution Unit, looked back on the 2019 general election. The issues discussed included polling, women’s representation, the rules of the electoral game, and the effect of the election on the new parliament. The event was chaired by Unit Research Associate Lisa James

Ben Lauderdale – polling 

Ben Lauderdale, Professor of Political Science at UCL, started the evening by discussing the performance of polling at the election. During the election campaign Lauderdale had been involved in producing the much-discussed ‘MRP’ (multilevel regression and post-stratification) polling used to predict constituency results. His central message was that after two general elections — in 2015 and 2017 — in which some of the polls proved to be significantly out of step with the results, polling for the 2019 election is largely a non-story, as most pollsters were on target in their predictions. Further, the accuracy of the polls meant that the media was (in retrospect and in Lauderdale’s view) discussing the right topics during the election campaign. The most important of these was the prospect of a Conservative majority, but also the specific demographic and geographic weaknesses of the 2017 Labour coalition. While the terminology was a bit reductive and silly, it was not wrong to have focused on the vulnerability of Labour’s ‘red wall’ and Conservative appeals to ‘Workington man’.  Continue reading

Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading

If there is a snap election, what can we do to improve the campaign?

JennyH.picture.jpgA snap election looks highly likely in the coming months. The UK’s rules for election campaigns have widely been branded as ‘not fit for purpose’, yet they will not be changed in time for an early poll. The Constitution Unit therefore convened a seminar to examine what else can be done. Jenny Holloway summarises the discussion.

The Constitution Unit held a seminar on 12 September asking ‘If there is a snap election, what can we do to improve the campaign?’ Focusing on ways both to tackle misinformation and to promote greater availability of good information, the event brought together four leading authorities in their respective fields: Dorothy Byrne, Head of News and Current Affairs at Channel 4; Ed Humpherson, Director General for Regulation at the UK Statistics Authority; Joe Mitchell, director of Democracy Club; and Will Moy, Chief Executive of Full Fact. It drew on many of the themes addressed in the Unit’s March 2019 report Doing Democracy Better, co-authored by Alan Renwick and Michela Palese. Given that changes to the legislative framework for election campaigns will not happen before a snap election, it focused particularly on strategies for improving the campaign within existing rules.

Dorothy Byrne

Building on her recent McTaggart Lecture, Dorothy Byrne argued that politicians and journalists both have crucial roles to play in improving the state of democracy and increasing public trust in politics. Politicians must be willing to submit themselves to scrutiny through the media. Broadcasters have a responsibility to actively call out lies and untruthful statements made by politicians. Continue reading

Who should pick party leaders: MPs, members or a wider public?

The Conservatives and Liberal Democrats are currently in the midst of party leadership campaigns that could change the country’s political course. The winner of the former will likely succeed Theresa May as Prime Minister, whilst the next Lib Dem leader could lend a crucial number of votes to the largest minority party in the event of a hung parliament. On 17 June the Constitution Unit hosted four experts in political party processes to discuss the question, ‘Who should pick party leaders: MPs, members or a wider public?’. Lorenzo Leoni summarises the speakers’ contributions.

The question of how parties elect their leaders has perhaps never been so pertinent to the wider political process. For the first time, the decision of who becomes the country’s next Prime Minister looks likely to be decided as a consequence of a party membership choosing their party leader, without the intervening event of a general election. The implications of this (and the growing influence of memberships in party leadership elections more generally) for our system of representative democracy have perhaps not been sufficiently articulated before now. This well timed seminar sought to address some of these issues by bringing together four party experts to help make sense of leadership elections:  Tim Bale, Professor of Politics, Queen Mary University of London; Mark Pack, editor of Liberal Democrat Newswire and former Head of Innovations at the Liberal Democrats; Jess Garland, Director of Policy and Research at the Electoral Reform Society and Paul Webb, Professor of Politics at the Sussex European Institute.

Tim Bale, Professor of Politics, Queen Mary University of London

Tim Bale opened the evening with what was perhaps the most timely analysis: that of how the Conservative Party chooses its leader. Unlike members of other parties, they have no direct influence on policy, so leadership elections are one of the only ways in which they can influence the party’s direction. Beginning with a brief pen-portrait of the party, he illustrated how the 160,000 or so members of the party are unrepresentative of the population as a whole: demographically they are middle class, over 50, white, and geographically concentrated in the South; ideologically they generally identify as either ‘fairly or very right-wing’.

Bale was sanguine about the fact that a small group of people are responsible for electing not only their party leader but the country’s Prime Minister. Whilst divergent from the wider population, Bale noted that Conservative members are not too dissimilar from the larger group of people who vote for the party at a general election: they are not a ‘breed apart’ from those who support the party come polling day. He also sought to remind the audience that the UK is a democracy that relies on party strength within the House of Commons to determine who should be Prime Minister. In that context, he argued, allowing the party to select their own leader (and therefore the Prime Minister) was not automatically a cause for concern.  

Bale argued that it is imperative that parties remain organisations of civil society rather than drifting into a position where they are over-regulated and closely entwined with the apparatus of the state. It is crucial they have agency to do as they wish and, as the ‘movers and shakers’ in our system, if the party commands a majority in parliament it is quite natural that their leader should also become Prime Minister.  Continue reading