As the self-styled ‘home’ of parliamentary sovereignty, Britain has commonly been assumed to have a system of government is rational, ordered and organised with sufficient checks and balances that we have never really had to trouble ourselves to find out how it all worked. Yet as Brexit has drawn more attention to daily parliamentary goings-on, we have found that it is, in fact, wrapped up in pageantry, ritual and confusion, with even the participants unsure of what happens next. Now the question of constitutional reform is being raised with an intensity previously unseen in post-imperial Britain.
Constitutions are made and remade in periods of crisis, so perhaps it is testament to the UK’s history of avoiding, externalising or supressing major crises that it has resisted serious examination of its idiosyncratic constitution. While the likes of Germany, South Africa and the US have re-written their constitutions in the shadows of fascism, apartheid and a war of independence, Britain’s uncodified constitution has not faced an equivalent existential challenge and therefore continues to contain a host of pre-modern technologies of government.
From our archaic first-past-the-post electoral system to the persisting presence of hereditary peers in the upper house of parliament and the preserve of royal prerogative power, the UK is bound by a distinctly antidemocratic core.
This core is the zombie-like relic of what was, and in many ways still is, an imperial state. As the great scholar of British nationalism, Tom Nairn, says about the British constitution, ‘Only the most successful and long-lived of modern empires could have preserved such an anomaly and kept it in working order until the 1970s.’ The UK’s 20th-century transition from an empire state to a nation state was not accompanied by a comprehensive review of its constitution and its institutions, and in many ways we can understand the crisis it is facing now as the manifestation of ignoring endemic problems for too long.
The current debate provoked by Brexit rarely highlights the fact that for most of the major moments of the British constitution, from the 1688 ‘Glorious Revolution’ to the 1707 Act of Union, England, and then Britain, was an imperial realm and not just a national one. By the time of the unification of England and Scotland, England had already established legal jurisdiction over Barbados (1627), Jamaica (1670) and the Virginia slave colonies in what would eventually become the USA, as well as having forts in what are today Accra, Ghana, and Bunce Island, Sierra Leone.
Much of Britain’s uncodified constitution was key to cohering the expansion of its empire over the next couple of centuries. Today we forget how the constitution was informed by the unarticulated desire to be flexible enough to bind together the differing polities of the empire – crown colonies, settled colonies, dominions, protectorates and so on – but with an authoritative centre in terms of parliamentary and executive power, protected, in part, to serve the interests of the empire-at-large.
Lauren Benton and Lisa Ford’s recent book Rage for Order, on British imperial constitutionalism, helps to show how the excesses of the British system stood in relation to the imperial objective. For instance, while the Glorious Revolution had sought to place constitutional limits on royal prerogative, the crown retained the absolute authority of the state within what were termed ‘crown colonies’ and its wielding of its royal prerogative within the imperial realm began to expand the scope of that power again.
With the changing winds of the post-war world ushering in decolonisation, the 1950s would appear to have been the obvious time for a re-writing of Britain’s constitutional system, revisiting questions such as the status of Northern Ireland or the division of power between Westminster and regional bodies – issues that without the empire had lost their explanatory foundations. Yet Britain suppressed the decolonial moment. Even today, the story of the end of the empire is far less known than older events such as Britain’s role in the world wars, the Tudor dynasty or the Norman invasion.
By not confronting the full reality of the end of empire, Britain let the undead imperial state trudge forward, failing to deal with issues such as Northern Ireland or devolution until the end of the century. One reason is that its centralisation of power has been useful for both major political parties, allowing them to enact sweeping changes whenever they got their hands on the instruments of government. Attlee’s government used it to impose the welfare state on the country before Thatcher used many of the same tools to dismantle it. Each party was comfortable with a status quo whose archaic electoral system could deliver large parliamentary majorities, along with a surplus of executive power for whichever side could win those majorities.
Yet Britain needed constitutional reform as much as the swathes of the globe that would undertake it in the latter half of the 20th century, from decolonised Africa to post-Soviet eastern Europe. As Tom Nairn explains, Britain never actually managed to become a modern nation state. Its early conversion to liberal constitutionalism combined with outrageous imperial success meant that, like a Hollywood child-star, it was stunted in its overall development, shielded by early wealth and privilege from the growing pains that its neighbours had to endure to gain independence.
While the idea of a liberal-constitutional state developed, Britain rested on its laurels, confident that the success of its imperial project was proof of the genius and superiority of its pre-modern, unknowable constitution.
It would appear that the long delayed moment of crisis for the zombie imperial constitution has now arrived. Even the Brexiters who sold their campaign on the inherent superiority of the UK’s uncodified constitution – parliamentary sovereignty, the rule of law and so on – now seem to despise parts of it. Parliament is the enemy for failing to deliver Brexit, judges are ’traitors’ for giving the final say to MPs. The right has already begun to talk the language of constitutional reform, of making supreme court judges subject to government appointment and/or producing a Brexit constitution.
In this context, let us remind ourselves of what a constitution does. In short, it should have three objectives: 1) to detail the relations between different bodies of the state; 2) to detail the relations between the state and citizens; and 3) to provide some cohering vision of what kind of community the country is trying to produce.
With all of these fundamental questions up for grabs, it is essential that the left takes this opportunity to try to reframe the scope of power in Britain to serve in producing a more just and egalitarian society.
Kojo Koram is Lecturer in Law at Birkbeck, University of London.
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