Introduction
A constitution refers to the set of the most important rules and common understandings in any given country, that regulate the relations among that country’s governing institutions (King, 2010). Thus, the British constitution in itself fashions a legal framework, where rules and understandings are indebted to centuries of customs and traditions. One well-supported interpretation is that Britain’s constitution has been a story of progress and evolution, unpunctuated by revolutionary upheaval or foreign occupation (Bogdanor, 1988). An alternative, more recent line of thought goes that Britain’s constitution, once revered for its heuristic and continuous nature, has become outdated and dysfunctional. This view is gathering increasing support, leading political commentator to write that the United Kingdom could be on the verge of a fresh constitutional “crisis” as a result of the 2016 EU referendum (Peston, 2018). Others believe so-called constitutional dysfunctionality is far from fresh. Since 1988, the pressure group Unlock Democracy have maintained advocacy of further constitutional reform. This essay will assess issues such as adopting an entrenched constitution, further devolution and reforming the electoral system. It will carefully measure whether each of these is fit for purpose or not.
A Codified Constitution
As leading authority on the constitution Vernon Bogdanor has observed, Britain’s constitution today has been a long-running evolutionary process which has its roots in the thirteenth century. From the prominent charter of rights, the Magna Carter in 1215, to the much more recent ratification of the Human Rights Act in 1998. Many writers have often ascribed to Parliament the function of protecting individual liberties, but there is no constitutional law in the United Kingdom to prevent a majority of parliamentarians failing or refusing to fill such a function (Norton, 1982). To remedy this, many scholars have argued that the United Kingdom should either codify its constitution into a single document or entrench suitable areas. Entrenchment rules are at their most attractive where there is a connection between the reason for entrenchment—the reason why the normal rules of legal change are problematic in a particular area of law—the type of entrenchment rule adopted, and the area of law entrenched (Barber, 2016). In the context of the United Kingdom’s unwritten constitution, this remedy becomes far more difficult. Britain is neither a newly independent state, nor a reconstituted state (Brazier, 2008), making the need for a codified constitution somewhat unique. However, entrenchment may bring a new sense of identity and stability, the latter being most significant for the judiciary. Under Section 4 of the Human Rights Act, it is noted that if a piece of primary legislation contravenes with the European Convention of Human Rights, then a judge can issue a ‘declaration of incompatibility’. This undoubtedly prolongs the judicial process, as can be seen with the ‘A v Secretary of State for the Home Department’ in 2004. An entrenched and sovereign ‘Bill of Rights’ would rectify this by establishing a clear enumeration of civil liberties that a single government cannot detract.
Britain under Gordon Brown’s Labour administration flirted with the installation of an entrenched Bill of Rights continuously since ratifying the Human Rights Act in 1998. In ‘The Governance of Britain’ White Paper, the Brown wrote that a ‘A Bill of Rights and Duties could give people a clear idea of what we can expect from public authorities, and from each other, and a framework for giving practical effect to our common values’. Though it is not contested that codifying a constitution built upon customs and conventions would be strenuous, the Bill of Rights that Brown described would effectively complete the groundwork made with the Human Rights Act. This can be supported by the state of flux and uncertainty over the long-term direction of travel of the United Kingdom constitution outlined in this essay are in. For codification to be a worthwhile task, the direction of travel ought ideally fairly well settled (Brazier, 2008). Both devolution and electoral reform reveal that there is far too little consensus in the lower house to justify complete codification. Therefore, limited codification may appear a sensible route. Finally, the best known and perhaps most pungent argument has been that advanced by Lord Hailsham in his ‘elective dictatorship’ thesis (Norton, 1982). With the establishment of party whips driving collective cabinet and acts like the Salisbury Convention limiting a governments accountability, parliamentary sovereignty grants governments of the day the authority in the lower house to potentially dictate Parliament as it wishes. Through the act of limited codification, Prime Ministerial and executive power can be restrained. As it is in the United States.
Devolution
With Parliament granting further devolution in 1998, Britain has constitutionally become a half-way house between a unitary and federal state. Scholars often use the phrase ‘Union state’ to describe this (Mitchell, 2011). In reality it embodies a form of asymmetrical devolution where Scotland, Wales and Northern Ireland all obtain a certain amount of autonomy. This power, however, can be restored to Westminster at any given moment as a right of Parliamentary sovereignty, similar to powers the EU currently has over certain policy areas. This is the selected area that vindicates reform. In Scotland, Gordon Brown presents the idea for full fiscal autonomy, otherwise known as ‘devo-max’. Devo-max plans to grant Scotland total control over taxation and further control over spending. But, ultimately, Westminster still remains sovereign over binding issues like foreign policy and defence. In 2010, the Scottish Social Attitudes Survey found that the citizens overwhelmingly supported being ‘part of the UK, with elected Parliament with some taxation powers’. Simultaneously, the Scottish independence referendum results are indicative of a nation’s desire for greater autonomy but uncertainty over independence. Moreover, to support this the Scottish Government suggest there is political support ‘for greater tax, spending and borrowing powers, commonly known as fiscal autonomy for the Scottish Parliament’ (Scottish Government, 2009a).
In 1977, Labour MP Tam Dalyell made a crucial observation which has thus become popularised as the ‘West Lothian question’. It refers to the constitutional quirk which allows MPs belonging to a devolved country to vote on English laws but not the other way around. Whilst presenting a disparity between devolved nations and England, it has since been used as political tool to pass domestic legislation with the support of Scottish, Welsh and Northern Irish MPs. A prime example of this includes Tony Blair’s attempt to introduce tuition fees in 2004. The Conservative Party highlighted this area for subsequent reform and, in October 2015, developed the procedure, ‘English Votes for English Laws’, also abbreviated to EVEL. The Labour Party led by Ed Miliband refused contributing to William Hague’s committee on the issue. Therefore, by lacking in bipartisan support, and subtracting power from each devolved member, the procedure appears politically vulnerable and means the West Lothian Question could return. There are, however, alternatives to the system in place. It can be argued that the creation of an English Parliament would wipe out the question all together. The Adam Smith Institute (2010) found that 68% of English voters supported this theory. Finally, It is said that the representation of English interests in UK Parliament have been exaggerated (Gover et al. 2018). Therefore, the creation of an English Parliament would guarantee England its voice (Bryant, 2008).
Electoral Reform
If a constitution outlines rules and regulations regarding how a political party may govern, then a voting system allows said party to govern authentically, exercising the being of a representative democracy. It is the ability afforded to the people to choose their representatives, that constitutes the distinguishing mark of a democratic state (Bogdanor, 1981). In 1884, Britain popularised the use of the single member plurality system through the Representation of the People Act. Most notably returning single member constituencies – a previous flaw that once saw Charles Howard, 11th Duke of Norfolk control eleven boroughs. In short, the system is lauded for its ability to elect clear representatives, its simplicity at the voting booth and its natural subversion from radical or extreme party politics. However, after a defeat in the 1983 general election, it was said that the existing electoral system no longer ‘worked for Labour’. (Hart, 1992) Talk of removing the ‘winner takes it all’ procedure subsequently increased.
During the life of a Parliament, the Member owes a duty to represent (in whatever fashion is appropriate) all his or her constituents, rather than just those who voted for him or her (Brazier, 2008). This is the fundamental and democratic flaw of the single member plurality system. The existing method of election, coupled with the distribution of party support in the country, favours disproportionately the two major parties. It produces only a very rough correlation between the proportion of votes cast in the country for a party and the proportion of seats received by that party in the House of Commons (Norton, 1982). Examples of this can be seen in 1983 and 2015. Parties from both the nineteenth century and twentieth century alike have, in a measured demonstration of liberalism, aligned support behind proportional representation (P.R) – a principle or yardstick by which to test the degree of representative proportionality between citizens votes and successful party candidates (Blackburn). By 1920 P.R had been adopted by all western European countries except Britain and is now used by each devolved member of the union for a form of local election. (Brazier, 2008) [footnote]. Thus, it only makes sense to introduce P.R in UK general elections, in order to recognise and legitimise these members and their electorate. Equally, systems such as Single Transferrable Vote and Additional Member System eliminate the threat of a ‘wasted vote’. This will not only discourage tactical voting but will also move away from a ‘tyranny of the majority’ party system. A prime example of this can be seen in the 2011 election to the Scottish Parliament where the Labour Party , Conservative party, Scottish National Party and the Green Party all had representatives elected to the Glasgow region. Finally, another area of reform to the voting system worth noting, is the eligible age to vote. In the Scottish independence referendum of 2014, 16 and 17 year olds were allowed to vote. However, 16 and 17 year olds across the UK were denied a vote in the EU referendum and in the 2015 and 2017 General Election. This presents a disparity similar to that of the voting system. For Westminster to align itself in support of its devolved members and present itself as a union. It must follow suit.
Conclusion
This essay has presented ways in which Parliament is infatuated with micro-managing the Constitution which favours short-term political gain over long-term constitutional stability. The extent to which political debate over Britain’s constitutional affairs has overshadowed, distracted and prevented successive governments from implementing the policies of their party’s manifesto suggests that there is evidence of a constitutional crisis. Proposals like ‘English Votes for English Laws’ may offer a short term fix. However, these proposals remedy the symptom not the cause of constitutional crisis which remains unremedied. For a constitution to be functional, it must be sustainable, I.e. not subject to constant, unpredictable change. Therefore, a design is urgently required. This essay has proposed a set og sustainable constitutional reforms whilst identifying why said reforms are required. Limited codification allows the UK to sensibly entrench areas of the constitution settled by consensus, whilst offering an established form of accountability through a Bill of Rights. This will also aim to prevent elective dictatorship. Meanwhile, further autonomy given to devolved countries e.g. ‘Full Fiscal Autonomy’ will settle political unrest that can be seen through the increasing membership of nationalist parties like Sinn Fein, Plaid Cymru and the Scottish National Party. Together, these changes would increase the functionality of Britain’s constitution.