November 15, 2009

GET IT IN WRITING:

This Way to the Ruin: a review of The British Constitution by Anthony King (David Runciman, London Review of Books)

Does Britain need a written constitution? Of course it does, which is why, as Anthony King points out at the start of this readable and illuminating book, it has one already. Whatever its detractors might think, Britain is not some folkloric society governed according to immemorial custom on the nod and the wink of the people in the know. Most of the rules of modern British political life, from the 1701 Act of Settlement on, are set down in statutes, which in total run to many hundreds of pages and cover everything from the maximum duration of Parliaments to the relationship between British and EU law. Not everything is written down – there are no statutes determining the role of the prime minister or fixing the responsibilities of cabinet government – but then again, no constitution has everything written down. The American constitution, which is often held up as a model of all-seeing sufficiency, leaves a great deal out, including the rules governing the country’s electoral system: the principle of first past the post is an integral feature of the constitutional order, but nowhere is this actually specified. In fact, it is rare for modern constitutions to fix the details of the electoral system. This is perhaps because one of the few that tried – the Weimar constitution, Articles 17 and 22 of which established that all federal elections should be conducted according to the principle of proportional representation – was such a disaster.

What Britain lacks is not a written constitution, but a codified one. Codification – or what King calls ‘Constitutions with a capital C’ – joins all the different written provisions together, and tries to provide them with some underlying coherence. Where that coherence is lacking, the process of codification requires some of the existing documents to be rewritten or jettisoned altogether. The distinctive character of Britain’s constitutional arrangements is a reflection of the fact that it has never been through such a process, and so it is not really clear how all its different bits do fit together. Britain also lacks a set of written rules that establish how the constitution can be changed. Almost all capital-C constitutions have provisions of this kind; the business of codification encourages people to reflect on the circumstances in which it is appropriate to rewrite a constitution, and this usually means removing the drafting of constitutional amendments from the normal political process. But in Britain, Parliament can draft new statutes amending the constitution any time it likes, and it does not have to worry whether these new statutes can be justified in relation to what exists already. The result is that, to many eyes, the British constitution is just too easy to tinker with.

But despite the fact that the British constitution has been tinkered with a great deal over the past generation, and the past decade in particular, this is probably the wrong lesson to draw. The salient feature of British constitutional politics is that it is just an extension of politics per se, and how easy it is to change things depends on how the political stars are aligned.


The most useful thing they could do is enumerate and enhance the monarch's power.



Posted by Orrin Judd at November 15, 2009 12:35 AM
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