Published on 16 November 2022
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Not by design: the erratic evolution of the British constitution since 1997

In a new paper on UK constitutional change, Philip Rycroft questions just how robust is our democratic infrastructure and the constitution that underpins it. In considering the UK’s ramshackle history of constitutional change, he makes the case for a series of modest steps to help increase the self-reflection of Parliament and the political process in constitutional reform, ensuring that it is fit for purpose in the twenty-first century.

An enduring feature of the British view of ourselves has been an innate pride in our democracy and the example it has set. Westminster has carried the tag ‘mother of parliaments’ since the 1860s. A notion that Britain has exported democratic norms around the world is an established part of our national myth. For many decades, the British have looked on as other countries have struggled to achieve the democratic stability we believe we have long enjoyed.

But just how robust is our democratic infrastructure and the constitution that underpins it? That pride in British democracy belies a loss of trust in politicians and the political process. In no election this century has turnout exceeded 70%, the norm that prevailed through the twentieth century, with turnout in younger age groups consistently under 60%. The union that makes up the United Kingdom (UK) is under stress as never before; persistent demand from Scotland, Wales and Northern Ireland to leave the UK is met with growing indifference in England.

This disconnect between people and constitution has happened in spite of numerous attempts at reform over the last 25 years. In a guest paper, I argue that the way we manage constitutional change in this country has not been fit for purpose. Instead, the constitution we once took pride in looks more and more ramshackle and out of kilter with twenty-first century democratic needs.

Why have the reforms of the last few decades failed to deliver system coherence?

With no special status for constitutional legislation, the constitution is treated to the same vagaries of political fortune and the political cycle as other policies and subjects. Checks and balances, both within the governance system and from external civic society, are weak. As a consequence, even major constitutional decisions can be driven by narrow party interest. This has created a political culture that is resistant to taking an enduring approach to constitutional reform.

Despite numerous attempts at reform, the House of Lords remains broadly untroubled by democratic process; bloated by any international measure, the way in which new members are appointed slips further into disrepute. The UK has experienced two seismic referendums, on Scotland leaving the UK in 2014 and the UK leaving the European Union (EU) in 2016. Both generated deep divisions, and neither commanded the consent of the losing side. Substantial devolution of power to Scotland, Wales and Northern Ireland has barely impacted the way Whitehall and Westminster go about their business. England remains one of the most centralised polities in the developed world and one of the most unequal. In an increasingly plural age, the first-past-the-post electoral system continues to drive narrow partisan politics.

This is of more than academic interest. The UK constitution relies on respect for its conventions and precedents; there are few other buttresses to protect it from a government that wears its constitutional responsibilities lightly. Command of a majority in the House of Commons is all; Parliament has not been able to assert its prerogatives in the face of a drift towards greater supremacy for the Executive arm of government.

The government led by Boris Johnson, with a majority exaggerated by first-past-the-post, on a mission to deliver a hard Brexit in the teeth of opposition from close on half the population and two of the four nations of the UK, did not show much sensitivity to constitutional niceties. Attempting an illegal prorogation, undermining the devolution settlements through the Internal Market Act, repealing the Fixed-term Parliaments Act, clipping the independent wings of the Electoral Commission, threatening to renege on international obligations, requiring ID in polling stations in GB and ending a proportional system of election for mayors and police commissioners, all work to partisan advantage in a way that risks eroding broad consent for democratic process.

What is the solution?

There is a cogent argument that long-term the UK should follow the majority of democratic nations by framing for itself a written constitution. But this would be a massive and controversial undertaking. Without a moment of nation-forming crisis, it is unlikely that there will be the political will to commit to such a process. In any event, codification in and of itself is no guarantee of respect for the democracy; codes too can be undone.

Instead, I argue for a series of more modest steps, the aim of which are to increase the self-reflection of Parliament and the political process on responsibility for the constitutional framework. Changes should require more check points and increased external scrutiny and engagement, while leaving decisions ultimately to democratically elected politicians. Such changes could include using Citizen’s Assemblies to generate considered public debate about reform proposals; entrenching constitutional legislation in a way which raises the political bar to any change that does not command broad support; using a reformed second chamber as a guardian of the constitution; creating an extra-Parliamentary body to advise on constitutional issues; and improving the capability, and authority, of the civil service to safeguard constitutional boundaries.

Such changes would make the process better informed, more subject to public engagement, and more open to challenge, particularly in Parliament. This will not be the whole answer but might be a part of it. Ultimately, all constitutional change should be for elected politicians to determine. Responsible politicians will recognise their duty to sustain the democratic infrastructure. This they should see as a primary role. The constitution, after all, is there to serve the people, not politicians.

Guest paper: Not by design: the erratic evolution of the British constitution since 1997

News release: Philip Rycroft: Politicians must recognise their duty to protect the UK constitution

Authors

Philip Rycroft

Philip Rycroft

Distinguished Honorary Researcher at the Bennett Institute for Public Policy and POLIS

Philip Rycroft worked in DExEU from March 2017 to March 2019, from October 2017 as its Permanent Secretary. He was responsible for leading the department in all its work on the...

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