Britain’s mutilated constitution

For most of its three hundred year history, Britain has been a constitutional success story. The constitutional settlement arrived at in the wake of the Civil War and the Glorious Revolution has proven extraordinarily adaptable. The balance between King, Commons and Lords, and the dynamic, blended harmony between executive, judicial and legislative functions, was a system amenable to continual reinvention, changing in order to remain the same. This political homeostasis saw British institutions survive the rise of trade unionism and mass democracy, surmounting crises from the French Revolution to triumph in two devastating World Wars. 

For those in the years following the last of those World Wars, it must have seemed like it was a system destined to thrive for centuries more. The British state, in all its mongrel feudalism, had managed to navigate the end of Empire, and the building of an egalitarian social democracy. As late as the 1980s, new hereditary peers were being created. 

30 years on, and the British constitution has been torn to incoherent tatters. This week saw the last time the hereditary peers would sit in parliament. It stands at the end of a long line of constitutional tinkering and vandalism. Of the old pillars of the second chamber, only the bishops remain, with the British aristocracy removed, and the Law Lords rendered as a European style “supreme court”. 

National parliaments have been established in Scotland and Wales, but not in England, and their powers are on effective loan from Westminster, rather than as part of a coherent federal system, creating a recipe for separatism. The first past the post voting system, once a way of securing stable governing majorities, now generates massive uncertainty and upheaval, as voters split five different ways, and small shifts in voting flip hundreds of seats. 

National sovereignty is itself no longer a surety. The exposure of Britain to international courts and regulators was enough to bring about the end of EU membership, but this has simply exposed the division and incoherence of British politics. A decade after leaving the EU, British fishing rights are still sold off, a Labour government is quietly seeking regulatory alignment, and the ECHR is still hamstringing British policy makers. 

Quite apart from these transnational courts, British justice itself is a frozen hell. Vast backlogs see justice deferred and denied, with sluggish courts, lax sentencing and overspilling prisons allowing violent criminals to go free on a regular basis. Equalities and human rights laws have long since shifted from the narrow venture of sheltering people from abuse, and are now serving to cripple major parts of the public and private sector through equal pay judgments that run into the billions. Even as mass migration swells to crisis proportions, the courts struggle to deport criminals and illegal immigrants thanks to a deluge of unfalsifiable human rights claims. 

The British state’s ability to do things practically, quite apart from this litany of unforced errors, is further constrained by dire global conditions. War, energy politics, globalisation and debt have decimated British sovereignty and state capacity, meaning that promises and policies made in parliament come to nothing in practice. The civil service, that stalwart foundation of British policymaking, is now fundamentally unsound. Anything that goes before British administration is lost in committees, quangos and the tyranny of process over practicality. Costs and timelines explode into absurdity. Every year HS2 becomes shorter, slower, and dearer. 

At the root of all this misery is a mutilated constitution. Clear sources of authority and action, once hitched coherently together, are now set at war with one another. The Treasury is at odds with No 10. The Prime Minister agrees policy with his civil servants rather than his cabinet. Decisions are no longer made in consultation with Parliament, which is now a place for politicians to shout and scream into the void. Even if these warring elements can produce something resembling a plan, it risks being torn down by the courts, blocked by civil servants, or vetoed by the money markets. Even should it limp into being, it will likely go unimplemented in Scotland and Wales, and unenforced by absent police or regulators, before being undone by the next government. 

The problem with all the changes of the past decades is not the usual tweedy complaint that all change is for the bad, or that the British state must be frozen in aspic. The problem is that the changes were done in desperate folly and ignorance of the nature of the British constitution — what makes it work, and what allowed it to adapt to every prior challenge.

In the first instance, Britain, and England before it, has long had a mixed constitution. Yet unlike the Montesquieu-inspired constitution of nations like the United States of America, it is built on a “fusion” rather than separation of powers. Whilst America has a series of powerful branches, which different factions struggle to control and weaponise, with baleful results increasingly visible today, the British constitution attempted to reconcile potentially diverging interests. 

This has meant that historically three “regimes” — monarchic, aristocratic and democratic — three “powers” — executive, judicial and legislative — and three “orders” — the nobility, the clergy and the commons — all combined in a single parliament which sort to harmonise and balance these interests within its walls. 

Put in general terms, you can think of this as the nature of government, the different aspects of governance, and the representation of the governed all converging into a single discursive and law-bound constitutional space. 

Whilst fusionism is often wrongly thought of as risking authoritarianism, because of the “unwritten” nature of its constitutionalism and the concentration of power, this is a fundamental misreading. In fact many of the world’s dictatorships have a division of powers, and this division can be as much or more as a spur to authoritarianism, because it sets the executive apart from other stakeholders, and allows it to operate independently. 

This misapprehension about democracy and constitutionalism can be traced back to the shift away from class and economic issues on the left in the 1980s, with a new emphasis on human rights, social liberalism and constitutional reform, as seen in examples like the Charter 88 movement, which explicitly advocated for an activist constitutional court along a German model. This torch was taken up by Tony Blair, whose government implemented much of the most suicidal and ill-advised elements of Charter 88, attempting to stitch the sturdy flesh of centuries old political order into a Frankenstien-like semblance of continental constitutionalism.  

The British constitution, once highly valued by Liberal and Labour politicians, and seen by the latter as an effective tool for building a social democracy, had come to be perceived as an impediment to the sweeping cultural changes that now substituted for the old class-based politics. Ironically, far from liberating the individual, this created a labyrinthine and unaccountable system that intrudes far more vigorously into the lives and choices of its citizens than ever before. 

Can all the King’s horses and all the King’s men put the constitutional Humpty Dumpty back together again?

One reason that our tradition-wracked constitution was so curiously suited to post-war socialism was its strong emphasis on representation. As well as dynamically aligning converging powers, it acted to arbitrate between different classes and stakeholders in the British state. This allowed the governing “regime” to organically shift over the centuries from the royal power of the Stuart monarchy, to the aristocratic monopoly of the Whig ascendancy, and to ever more democratic rule over the course of the 19th century and beyond. For a mass movement like the mid century Labour party, it offered an effective means to implement sweeping reforms, but without alienating important sections of the country. The presence of hereditary aristocrats in both chambers, including Prime Minister Clement Atlee himself, added to the legitimacy of such radical proposals as nationalised industries and universal public services. 

Can all the King’s horses and all the King’s men put the constitutional Humpty Dumpty back together again? Perhaps, but only if they understand his inner workings. The point of having everyone in the room isn’t simply to give them influence over policy — which they can have anyway by sabotaging or opposing it externally — but rather to secure their cooperation and agreement in making policy work. Hereditary peers were arguably elements of a governing elite that no longer exists as it once did, but the successors to the aristocracy of old are strikingly and disturbingly absent from public life and service. 

The sons of hedge fund managers and property developers are not, by and large, leading men into battle, nor taking their place in parliament. Indeed, an alarmingly large portion of the wealthiest and most influential Britons are tax exiles, or not British at all, treating the country as a handy place in which to park cash in property, play a round of golf, or go for a shop. Assets are bought up, but there is no deep personal investment in Britain, only a vestigial haunting of the “global city” that is London. If this is true of individuals, it is just as true of corporate entities, with headquarters and factories drifting overseas, and millions of workers dependent on foreign firms for employment. 

Forget about the old toffs. We desperately need to get the people who run our economy to contribute to public policy, and to shoulder their share of responsibility and accountability for the country. But there is no mechanism for this to happen. Wealth taxes will only make the problem worse, as individuals and organisations go offshore, or regard their social obligations as ending with the taxman. 

The current system of political appointments to the Lords ensures that there is at least some representation of business leaders, but this route is gatekept such that only party toadies and donors make the cut. Rather than the catastrophe of a powerless chamber of the “nations and regions” (just exactly what is our multinational commons if not that?), we should shape the Lords into a corporatist second chamber with representation of workers councils, trade unions, business leaders, financiers, charity heads, religious leaders (including of course the Lords Spiritual) and so on. Hereditary peers could be a part of this picture, representing a deep familial and institutional investment in the country. Such peerages could be revived starting with the best and most well-established examples, but new ones might be established from time to time as a supreme reward for exceptional public service, and to closely align family-owned firms with the interests of the country.

Divergent and conflicting elements must all be pulled back into the constitutional singularity that powers the British state. Judges must come back. Federalism must be rethought, and the West Lothian question permanently resolved, such that Westminster sets policy for every nation, with much more powers devolved to local councils rather than pseudo-Westminsters. Cabinet government should be reasserted, and the treasury and civil service severely reined in. The culture of parliament must be reinvigorated, and decision making should become a matter of great public debates, with parliament as the natural central arena, rather than made behind closed doors. Sovereignty, both de facto and de jure, must be reasserted. All judicial rulings must be finally appealed to the Law Lords, so that ECHR rulings, for example, would be subject to British judicial review before being accepted. Equalities and human rights law must be substantially rewritten or entirely replaced, so that its scope is severely limited, and not treated as a special branch of law set above all others. Sovereignty over energy, food, and manufacture must be asserted, achieving either self sufficiency or secure supply chains with close allies and trusted trade partners. 

Britain has to go back to the future — and restore its ancient constitution

As Britain enters a crisis of democratic legitimacy, and politicians and voters consistently fail to address structural flaws and unfairnesses like the unfunded liabilities of state and public pensions, or the systematic injustice of young people in the housing system, new thinking and structures will be needed. The advantage of the British constitution in its core form is its dynamism. If the commons and the democratic process weaken, we have a second chamber, and a monarchy. Non-partisan bodies can be appointed to manage politically toxic issues like pensions or healthcare reform, coming up with fair solutions that elected politicians are too scared to propose, and considering the good of future generations rather than the loud and aging voting majority currently holding that future to ransom. 

There is no easy or simple path to national renewal. But we have an established starting point; a proven recipe for success that has withstood the most ferocious testing. When working at peak efficiency, the British system is a kind of constitutional cold fusion, producing limitless national energy by combining the combustive elements that compose the country as a whole. Britain has to go back to the future — and restore its ancient constitution.