Published on 4 March 2020
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Brexit  •  Democracy  •  Government

Britain’s constitution after Brexit – the case for codification

Josh Simons gives his perspective on the case to codify the constitution of the UK and why the UK must now reach an enduring constitutional settlement.

Brexit stimulated broad engagement with the politics of Britain’s constitution. For three years, citizens who felt they had made a constitutional decision, and those who sought to reverse it, were animated by and engaged with constitutional issues. But Brexit also drew attention to several structural constitutional challenges: competing sites of sovereign authority, the changing scope of judicial and executive power, and opaque rules about parliamentary process and referendums.

The UK must now reach an enduring constitutional settlement. Constitutional reform is inevitable. The question is whether reforms will consist of temporary fixes imposed by a narrow band of elites or whether an energized public will be engaged in the politics of constitutional reform. In a new policy briefing published by the Bennett Institute, I defend the latter path. I outline three principles that should guide constitutional reform, arguing that the best way to give these principles force would be to begin the process of codifying Britain’s constitution.

The first principle is that the people are sovereign, not parliament. Sir David Davis, former Secretary of State for Brexit, infamously said: “Parliament is sovereign, has been sovereign, but of course the people are sovereign.” For three years, parliament, which did not want to leave, confronted the authority of the people, who had voted to leave. 

The resolution was clear. Parliament did not want Brexit, but because the people had voted for it, parliament could not stop it. MPs felt it was politically inconceivable to revoke Article 50 and the Liberal Democrats were punished in the ballot box for suggesting it. Brexit affirmed that parliamentary sovereignty is a narrow legal doctrine which obscures as much as it illuminates about how our constitution works in practice. At the same time, Brexit confirmed that British democracy, like all modern democracies, ultimately rests on popular sovereignty.

The second principle is that the UK is a union of nations, not a nation-state, which depends on the ongoing consent of its nations and parts. The UK must confront a simple choice. The United Kingdom can disintegrate into smaller sovereign political units, each confined to narrower ambitions and separated by boarders defined by the European Union. Or the United Kingdom can self-consciously create a political unit that intentionally pools sovereignty and forges a common civic identity. Without such a deliberate act of self-creation, lethargy and fear will edge us gradually towards disintegration.

The third principle is that our democracy needs bold reform. Democratic reform should empower citizen participation, giving institutional structure to local forms of decision-making, and it should force elected representatives to deliberate, abandoning the myth that government without deliberation is “strong” and “effective”. By promoting widespread awareness that how we are governed matters, Brexit has presented an opportunity for democratic reform. A moment to strengthen and re-energize our democracy and sense of common purpose.

The most powerful act of self-creation, and the best way to avert the disintegration of the UK, would be to begin the process of codifying the UK constitution. 

A codified constitution would recognize that the UK depends on the consent of the people of England, Scotland, Wales, and Northern Ireland. It would shift from a principle of devolution to a principle of self-determination, a politics of resisting reform to a politics of transformation. It would enable the people of the UK to once again feel as if they own their political system. Political actors cannot create nations but they can create constitutions.

A constitution binds the living to the dead. It forges a civic bond among the peoples of a multi-national state. A codified constitution could restructure representation in the UK, addressing the relationship between national legislatures and the UK Parliament, confronting the English question, and promoting greater fiscal autonomy, driven by the principle of self-determination not the technocratic delivery of public services. The UK may not survive without truly risking its dissolution. The process of codifying a constitution structures this risk within a process that has a clear timetable and agreed rules.

I respond to the familiar objection that codification is too risky and politically impossible.

First, the politics of codification depends on the process of codification. I outline a workable process of three stages. First, a Royal Commission would produce an initial draft of the constitution. This Royal Commission would last for two years, travelling up and down the country taking evidence from local community leaders, citizens, companies, and other kinds of stakeholders. After a pause, a Constitutional Assembly would then vote on amendments and produce a near-final draft of the Constitution of the United Kingdom, which would be printed and sent to every UK citizen. The Constitution would then require ratification by the people of each of the nations and parts of the United Kingdom. The clearer the indication of consent the more secure and enduring the allegiance it would secure.

Second, the last few years suggest that ignoring difficult issues does not solve them. Codification would force a confrontation with intractable questions that have been neglected for too long, encouraging a broad debate about different visions of citizenship and democracy across the United Kingdom. Forged through the political process of codification and ratification, a codified constitution would affirm that the UK’s political system is the joint enterprise of its citizens, requiring ongoing consent and broad participation, articulating a shared civic purpose for the world’s oldest multi-national democracy.

Above all, and third, swift dismissal of codification rests on an overly risk averse approach to democratic politics. Until a few years ago, our politics had become profoundly risk averse. But risk is the essence of democratic politics. It is what produces the feeling of collective will, the tingle of putting a cross in a ballot, the fury at having a political promise ignored. The outcomes of a process of codification cannot be preordained, controlled, legislated for, or determined in court. The process of codification would require a particular kind of trust in the citizens of the United Kingdom, a willingness to begin a collective journey whose destination cannot be known. Perhaps Brexit will in the end prove to be the beginning of that journey, rather than the end.

Read Josh Simons’ policy brief “The British Constitution after Brexit – The case for popular codification”.

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