The Economist - UK (2019-06-01)

The EconomistJune 1st 2019 BriefingThe British constitution 19

2

1

standing. Statutes such as the Bill of Rights

(1689) rub up against the Human Rights Act

(1998) in a manner scholars call “uncodi-

fied”, which means messy. Many of the

conventions for how Parliament goes

about adding to such statutes are to be

found in written references, such as the

works of Thomas Erskine May, a Victorian

clerk of the Commons. A few, such as who

the monarch calls on to form a govern-

ment, are indeed unwritten.

Peter Hennessy, a British historian who

sits in the Lords without party affiliation,

argues that law, precedent and procedure

provide a constitution which is as much a

“state of mind” as anything else. For de-

cades, the men who dominated Britain’s

ruling class felt they knew what was in and

out of bounds in politics just as they did in

cricket. It was a constitutional approach

which relied more than that of any other

country, in the words of William Glad-

stone, on “the good faith of those who work

it”. Lord Hennessy calls this the “Good

Chap” theory of government.

Over the past few centuries, the Good

Chaps have mostly behaved themselves.

They reformed the system in which they

operated rarely, piecemeal and mostly in

response to strong feelings among the pub-

lic. The Representation of the People Acts

of 1832 (the Great Reform Act), 1867 and 1918

expanded the franchise to all men not

peers, incarcerated or insane; the Repre-

sentation of the People Act of 1928 saw all

women enjoy the same rights. Over the

20th century hereditary peers had their

powers and their number reduced.

Under Tony Blair’s Labour government

this restraint disappeared. In its 1997 mani-

festo Labour promised to formalise the

rights of the people and offer devolved

power to the various nations and provinces

of the United Kingdom. After referendums

in Scotland and Wales a revived Scottish

Parliament received significant powers, a

brand new assembly in Wales rather less.

The Good Friday Agreement which brought

peace to Northern Ireland changed its con-

stitutional status, too, in various ways. Lat-

er, new statutory instruments ensured that

laws affecting only England had to have the

consent of a majority of the mps represent-

ing English constituencies.

The Human Rights Act of 1998 and the

ratification of the European Charter of Fun-

damental Rights in 2000 beefed up the

rights of citizens. Freedoms that previous-

ly depended on Good Chaps in Parliament

became protected by increased powers for

the judiciary instead. The conflict inherent

in the fact that the Law Lords sat astride

both parliamentary and judicial horses was

resolved when their judicial role was hived

off to a new Supreme Court.

Almost as striking as the breadth of the

reforms was the insouciance with which

they were carried out. When he recalls the

day he introduced legislation for referen-

dums on devolution in Scotland and Wales

in his memoirs, Tony Blair chirpily adds

“and we announced a seven-point plan to

revive the British film industry”. Richard

Wilson, who was Britain’s top civil servant

at the time, recalls the speed at which the

legislation flew through Westminster as

“breath-taking”. The hurried inception of

the Supreme Court was, in the mocking

words of its former president, David Neu-

berger, “a last-minute decision over a glass

of whisky”.

When David Cameron took office in

2010 he kept up the pace. But whereas most

of Mr Blair’s reforms had the legitimacy

that comes from being outlined in a mani-

festo, Mr Cameron’s did not. They were for

the most part stop-gaps to convince the

Liberal Democrats to enter a coalition with

Mr Cameron’s Conservatives. The Fixed-

term Parliaments Act got rid of the power

that prime ministers had previously en-

joyed to call an election at any time, thus

reassuring the Lib Dems that the Tories

would not cut and run as soon as they fan-

cied their chances. A referendum on elec-

toral reform—only the second ever nation-

wide referendum—was further Lib Dem

bait, though Mr Cameron led the No side

and won. When faced with an snp majority

in the Scottish Parliament, Mr Cameron

agreed to a referendum on Scottish inde-

pendence. Again, he won.

Why did the long years of constitutional

stasis come to an end? One answer is that

there were fewer lessons in constitutional

instability to learn from. In the 19th cen-

tury Britons watched countries such as

France and the United States tear them-

selves apart. In the first part of the 20th

century, they saw the rise of totalitarian-

ism. They recognised that the delicate Brit-

ish constitution had to be taken seriously,

argues Robert Saunders, a historian at

Queen Mary University of London.

Mr Blair and Mr Cameron, by contrast,

came to power when history was said to

have come to an end. They saw no need to

take particular care of the constitution. The

constitution was just another archaic part

of public life to modernise according to the

dehistoricised dictates of the age—or to

mess with for short-term advantage. Mr

Cameron is said to have first hatched the

idea of an eureferendum over a pizza in

Chicago O’Hare airport.

The Dicey is thrown

“Time and again we do constitutional

change as if we were anaesthetised, and

then we slowly wake up,” says Lord Wilson,

the former cabinet secretary. “It is painful.”

It can be worse than that. Some of the

wounds left by the recent impromptu sur-

gery are re-opened and infected by Brexit.

Take the relationship between West-

minster and the devolved institutions. In-

stead of providing a clear differentiation of

powers, devolution brought a fudge where-

by Westminster would “not normally” leg-

islate on devolved matters without permis-

sion from the relevant institutions. When

the Brexit vote showed that Scotland (62%

against) and England (53% for) differed on

something fundamental, that fudge be-

came inedible. Many Scots felt that Mrs

May’s insistence that the United Kingdom

which had joined the eu as one country

would leave it as one country ignored two

decades of devolution. “It is constitutional

illiteracy,” harrumphs Michael Russell, the

snp’s minister for constitutional affairs.

But when the question ended up with the

Supreme Court, the judges ducked. The

fudging convention, they ruled, was a mat-

ter of politics, not law. Keep us out of it.

Attempts to leave the eushow up con-

stitutional shortcomings in part because

membership helped to hide them. De-

volved policy areas often overlapped with

eu competencies, and Scotland was happi-

er under the euyoke than the English one.

The Good Friday Agreement was made fea-

sible by the fact that Ireland and Britain

were both eumembers sharing eurules

and both happy to be under the aegis of the

European Court of Human Rights.

Season of change

Britain,parliamentaryeventsandreferendums

Source:TheEconomist

1969 75 80 85 90 95 2000 05 10 15 19

RepresentationofthePeopleAct

Lowersvotingageto 18

Europe

Voteto

remaininEEC

Passed

Scottishdevolution

Rejected

Welshdevolution

Rejected

Scottishdevolution

Passed

Welshdevolution

Passed

HumanRightsAct

IncorporatesEuropeanconvention

NorthernIrishdevolution

IncludingGoodFridayAgreement

Passed

House of Lords Act

Reduces number

of hereditary peers

PoliticalParties,

Electionsand

ReferendumsAct

Freedomof

InformationAct

EU membership

referendum

Voted to leave

EnglishVotes

forEnglishLaws

Scottish

independence

Rejected

Fixed-termParliamentAct

Conservative Labour Conservative/

Lib Dem

Ruling party:

Accession to the

European Economic

Community

Voting reform

(Alternative Vote)

Rejected

Plus

DUP