A Ramshackle Constitution

by Joseph Farrell

There is an odd parallel between Britain's venerable and venerated constitution and a ruined castle which carries the scars of past invasions, sieges and wars. It is easy to be enchanted by the poetry of places like the castle in Bothwell, where history is visible in stone, even if the history is of blood and conflict. New corners come to light on successive visits, new angles of vision enhance the romance but pieces of masonry are liable to detach themselves without warning, causing injury or damage. No sane individual would view it as a modern habitation. In its unreconstructed state, it is a relic, not a living thing.

Experts on British constitutional law from Walter Bagehot onwards have delighted in the mystical antiquity of Britain's 'unwritten' constitution, boasting of its flexibility and adaptability, unlike the rigidity found in the basic law of other nations like France or the USA, which are compelled to debate and justify changes they wish to introduce or implement. Similarly, right-wing ideologues like Roger Scruton tell us English concepts of jurisprudence are based on the glory of common law which grows old and wise with time, all by its itself.

This facile romanticism can conceal the fact that the British constitution was constructed in strife and conflict. In history power was wrested from one privileged group, the monarchy or the House of Lords, by a new emerging force. The problem is that unreformed relics left in place unexpectedly force themselves on the attention of the public, especially over such fundamental questions as sovereignty. The UK constitution is not so much unwritten as ramshackle.

It cannot be repeated often enough that the central question in politics concerns power. Sovereignty is a grand word for power. Every demand for reform by the poor or under-privileged, every resistance to reform by those who enjoy the privileges of the status quo is settled by a decision on who holds ultimate power. Who whom?, in Lenin's succinct formula.

Troubling conflicts regarding the constitution, and thus the basis of power, have emerged between the lines of the decision of the Supreme Court to compel Theresa May to seek the approval of Parliament before proceeding with Brexit measures. Such difficulties could have been foreseen at the establishment of a Supreme Court for the whole of the UK, and with the introduction into political life of referendums. Some problems concern differing Scottish and English concepts of sovereignty, others the exercise of power in a representative democracy.

It had long been taken for granted that all vestige of sovereignty exercised in the name of the monarchy had been eliminated. Only fanatics like Tom Nairn pointed to the fact that the monarchy bestowed dignity on privilege or archaic practices which, had they been called by plainer names, would have been branded archaic and anti-democratic. Few people who were not parliamentarians will have been aware that a strange beast called the Royal Prerogative still roamed around the corridors of Westminster or Whitehall, and that the cabinet was at liberty to call on it without paying heed to elected representatives. If (subject to the decision of the Appeal Court), May lost before the court this time, she could win on future occasions.

The Royal Prerogative is a relic of the theory of the Divine Right of Kings, so dear to the Stuarts when they transferred to London. Of course, it is now exercised not by the resident of Buckingham Palace but by the resident of Downing Street, but it conceals a deeper conundrum, one which divides Scotland from England and should divide Right and Left. Where does sovereignty really lie under Britain's ramshackle constitution? After the Enlightenment, it became the basis of democracy that the repository of sovereignty (power) was the people inside a nation-state. The opening words of the American Bill of Rights state unequivocally 'We the peopleā€¦' Forget Trump for a moment. That is a statement of democracy.

What happens when the people express a view via a plebiscite, as has long been the case in Switzerland? What status does it have? If we have moved into an era of referendums, fundamental notions on representative democracy must be rethought. A notion that the people are sovereign is incompatible with a belief, an English belief, that sovereignty lies with Parliament, at least when the two are in conflict, as seems to be the case over Brexit. For what it is worth, on the specific issue I voted to remain in the EU. I believe deeply in the process which is, (was?), bringing European people together. We are in dangerous waters now, but that is for another day.

The traditions of Scotland and England on sovereignty diverge. Jim Sillars in an earlier article on this site put the divide trenchantly as a clash between the Scottish Lord Cooper and the English Lord Dicey. Cooper stated that the idea that sovereignty resided in Parliament was foreign to the Scottish tradition. He could not have foreseen that the English tradition would have a problem in incorporating the idea of a referendum. The idea that sovereignty lies ultimately with the people clashes with the idea that a referendum can only be advisory, as we are now told the referendum on the EU was.

Referendums were introduced into British political life, first by Harold Wilson and more recently by David Cameron as a matter not of principle but of expediency. In both cases, it provided a convenient way of resolving splits inside their parties. But a referendum is incompatible with the notion of purely parliamentary sovereignty. Recourse to referendum changes the nature of the constitution, at least as it was understood in England. This dilemma did not surface in the previous referendums when the elected elite were happy with the people's choices. The outcome of Cameron's referendum puts the question on the agenda. The judges did not face this dilemma, and MPs on both sides wash their hands of it by stating that it is politically unthinkable for Westminster to go against the wishes of the electorate. Perhaps it is, but this evasion leaves the status of a referendum unresolved. Advisory or statutory?

What justification, moral or political, can there be for viewing an expression of the people's will as a word in the ear of occupants of the benches in Westminster? And people in Scotland who might be happy to see the Brexit reversed must consider the implications when the second independence referendum takes place, as it will. Could the combined House of Commons and House of Lords listen politely to the advice of the Scottish people, cough quietly or snigger noisily, and disregard it. The advisory referendum, and the untrammelled sovereignty of Westminster are incompatible with popular sovereignty.

There is nothing of iconoclastic radicalism in this view. Mary Stuart was Queen of Scots when Elizabeth was Queen of England, and historians and jurisprudential thinkers have stated that sovereignty in Scotland lies with the people. That means that a referendum can never be only advisory. This a valuable heritage, which must be protected. For future use.