Beyond Magna Carta

A Constitution for the United Kingdom

Andrew Blick

• Publisher: Hart Publishing
• Year: 2015
• ISBN:
  9781849469647
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The 800th anniversary of Magna Carta falls in June 2015. In this work Dr Blick argues that this event should be the occasion for a reassessment of the past, present and future of the UK constitution. He draws on his experience as research fellow to the first ever parliamentary inquiry into the possibility of a written constitution for the UK. Dr Blick considers a series of English and UK historical texts from Anglo-Saxon times onwards, among which Magna Carta is the most prominent, which sought to set out arrangements for the governance of England and later the UK as a whole. He argues that they comprise a powerful tradition of written constitutional documents, and stresses the importance of the European dimension to their introduction and content. The author then considers the present nature of the UK constitution, describing the period of immense flux through which it has passed in recent decades, and the implications of this phase of change. Dr Blick identifies a need for a full written constitution for the UK as the next appropriate step. Finally, he discusses the democratic processes suitable to devising such a text, and what its contents might be. 'With this book Andrew Blick has made a major contribution to our understanding of how our system of government has worked in the past, how it is working – or not working – now, and what it could be in the future. Combing the centuries, he challenges many misconceptions and makes a powerful case for a written constitution. This volume is absolutely essential to anyone who wants to appreciate the real meaning of Magna Carta and why we should celebrate it.'
Graham Allen MP, Chair, House of Commons Political and Constitutional Reform Committee
' Beyond Magna Carta brings together the utility of a road map with the fascination of a changing cartography of political thought – all part of the constitutional development of these islands from the Great Charter of 1215 to the confusing aftermath of the Scottish Referendum of 2014. It is a superb work of explanation capped by intriguing suggestions of future possibilities.'
Lord Hennessy of Nympsfield, FBA, Attlee Professor of Contemporary British History, Queen Mary, University of London.

1

Introduction

THE ‘VOW’

FUTURE HISTORIANS WILL certainly regard 18 September 2014 as an important date in the history of the United Kingdom (UK). On this day, they will record, Scotland voted (by approximately 55 per cent to 45 percent) to reject independence. What is not yet clear is whether, in such narratives, the decision will appear as a lasting reprieve for the UK, or a stage in its unravelling. The referendum and its aftermath revealed fundamental flaws in the UK system. In retrospect, it may even be seen as a crisis of legitimacy. Methods through which constitutional change could come about were unsatisfactory. The system of governance as a whole was becoming imbalanced. A viable means of stabilising it was difficult to discern, and the task of doing so made more problematic by conflicting sectional interests. An exemplar of these defects came with a joint statement in the closing stages of the campaign by the leaders of the main parties in Westminster: the Conservative Prime Minister David Cameron; the Liberal Democrat Deputy Prime Minister Nick Clegg; and the Labour Leader of the Opposition Ed Miliband. It was called the ‘Vow’.¹

Issued at a point when the outcome of the vote seemed in doubt, the Vow made a series of pledges regarding the autonomy of Scotland. They would come into force if the referendum produced a ‘no’ verdict. Rather than through an official outlet, it appeared as a statement in the Daily Record newspaper on 16 September 2014. Despite the informal setting it immediately assumed a quasi-constitutional status. The three politicians began by iterating their agreement that the ‘Scottish Parliament is permanent’. This statement, in the UK context, was dramatic. The Cabinet Manual, an official publication dating from 2011 describing itself as a ‘guide to the laws, conventions and rules on the operation of government’ puts forward what is a conventional—if contested—view on this subject. Its first paragraph refers to the existence of a ‘sovereign [UK] Parliament, which is supreme to all other government institutions’. Shortly afterwards, the manual claims that ‘Parliament is sovereign and it has provided by Acts of Parliament—which, by their nature, may be repealed—for certain issues to be considered and determined at different levels’. Among the beneficiaries of this contingent benevolence were ‘the Devolved Administrations’.² The Vow, though not in itself amounting to a legal curb on the Westminster legislature, surely suggested a need to qualify such accounts of UK parliamentary authority. If Parliament genuinely was in possession of a theoretical legislative omnipotence, what was to prevent it overriding the Vow at some point in the future, even if it had gone as far as to enact it in statutory form?³ And if the Vow did prove to be in some way binding, how valuable was the doctrine of parliamentary sovereignty as a means of describing the UK constitution?

The Vow not only promised security for the Scottish Parliament, but guaranteed it the transfer of ‘extensive new powers’, in accordance with a tight timetable that would commence the day after the referendum. In a passage resembling the preamble of a written constitution, the text then went on to describe the purpose of the UK as being ‘to secure opportunity and security for all’ with ‘resources’ shared ‘equitably’ among Wales, Scotland, Northern Ireland and England. The end goal was the ‘defence, prosperity and welfare of every citizen’. This suggestion of a fundamental socio-economic purpose was in conflict with more orthodox UK constitutional conceptions. The statement also referred to the maintenance of the ‘Barnett’ formula for allocating expenditure between the four components of the UK, and guaranteed Scottish parliamentary control over expenditure on the National Health Service.

While the Vow arose in the circumstances of a vote held in Scotland it had sprawling implications for the UK. The manner of its appearance served to demonstrate some of the problems associated with constitutional change in this country. As the late ‘yes’ surge that occurred during the referendum campaign demonstrates, sometimes popular dynamics can develop that are hard to control from above. Nonetheless, the Vow—though the product of panic—was a manifestation of the discretion that political leaders can wield in shaping the underlying system, potentially to detrimental effect. A hurried product, it had no prior authorisation from the UK Parliament or anyone else outside the group of politicians responsible for it. Only the Scottish electorate was given the chance to approve or reject it, and then only in the negative sense that it would be implemented if it chose not to support independence.

As soon as the ‘no’ result was known on the morning of 19 September, a number of constitutional issues immediately appeared on the agenda for the whole UK. Cameron announced his intention that accompanying the changes foreshadowed in the Vow would be a package for the entire UK, proceeding at the same pace as the Scottish reforms.⁴ It would include enhanced devolution for Wales and improvements for the system of self-government of Northern Ireland. The most significant portion of his announcement related to the part of the UK where there was as yet no devolution outside Greater London: England. Cameron knew that he would be under pressure from Conservative English MPs who felt he had ceded too much to Scotland, in particular over public expenditure. He needed to quell these criticisms by showing he was asserting the cause of England. Stating that the ‘millions of voices of England must … be heard’, Cameron indicated his support for the adoption of a system known as ‘English Votes for English Laws’ (EVEL) in the UK Parliament. At his party conference the following month he confirmed this position, describing his ‘vow to the people of England … English votes for English laws—the Conservatives will deliver it’.⁵ This untried concept involved giving English MPs in the Commons an exclusive role in determining business that affected only England. Depending on the precise method of implementation it could mean the appearance of a Parliament within a Parliament at Westminster, and even a government within a government at Whitehall.⁶ It would also create problems for the Labour Party if it held a majority of UK but not of English MPs. If Labour formed a government in such circumstances its non-English representatives would not be able to support it in the Commons in crucial policy areas such as English education and health.

With this concern surely influencing him, Miliband came forward with his own proposals later on the same day.⁷ While Cameron had expressed a desire for ‘cross-party’ and ‘civic’ involvement in the process of change, the Miliband scheme placed far greater emphasis on the importance of inclusiveness, calling for a programme of national and regional discussion involving both politicians and the wider public, leading to a Constitutional Convention. Miliband focused primarily on the ideas of regional and ‘sub-national devolution’, not—as Cameron had done—an ‘English voice’. The Miliband time frame was longer than that of Cameron, with the full Constitutional Convention projected for October 2015. Miliband believed that there might be a need for a ‘regionally representative Senate’—presumably replacing the House of Lords. This view pointed towards a federal system for the UK, though he did not define it expressly in these terms. Finally, Miliband suggested his process could possibly lead to ‘codifying the constitution’. Earlier in his career, Miliband had been a special adviser to Gordon Brown when Brown was the Labour Chancellor of the Exchequer. As Prime Minister from 2007–10, Brown had explored the possibility of a written constitution. He made no progress. But during the referendum campaign in 2014 it was Brown who brokered the Vow. In doing so, he triggered wider developments that might in turn lead on to the attainment of this earlier idea.

At the time of writing, the outcome of this constitutional upheaval is impossible to predict with certainty, involving a complex interaction of ideas and political forces. Many concepts, not all of which are compatible, are in play. They include accelerated devolution, EVEL, the promotion of English regions, the holding of a constitutional convention, the increased adoption of a federal model for the UK, and the establishment of a written constitution. It is clear that dynamic and destabilising tendencies are at work. Serious systemic malfunction is a possibility. The Union, despite the ‘no’ vote in Scotland, remains insecure. The UK reached this difficult position at the very moment when it was poised to celebrate the 800th anniversary of a document—of English provenance—often held as central to a supposedly superior and steady constitutional system. This book argues that, by taking Magna Carta as our cue, we can use the past to assist us in understanding how we came to be where we are, and the way forward. Problems the UK faces at present are part of a process that stretches back to the 1950s and the beginnings of the full post-imperial era. The hunt for clues to potential solutions can begin far earlier still, in the sixth or seventh centuries. Rather than imprisoning us, the past can offer release.

CONSTITUTIONAL PERCEPTIONS

Many common understandings of our constitution are flawed. So too is the system itself. The 800th anniversary of Magna Carta presents an opportunity to begin correcting these defects. This ancient text is regarded as emblematic of democracy and liberty not only in its home country but internationally. We are right in the UK to mark its importance. Yet in doing so we should not only celebrate, but take the opportunity for a critical assessment of the way we are governed. The agreement that John Lackland and the leaders of the rebellion against him struck in June 1215 provides us with a portal. Through it we can perceive at once the constitutional past, present and possible future. But what is the nature of the set of understandings in need of reconsideration, and the difficulties requiring attention? They are discernable through some of the words of our political leaders spread over nearly seven decades down to the present, within the time span that historians delineate as the contemporary period. Not all the accounts considered in the passages that follow are entirely flawed, nor do they represent a single consistent stream of thought. Nevertheless, each of them is chosen because it is a statement by a holder of a prominent political position (or a leading party), for the particular ideas it presents, and because of the important tendencies and developments which it serves to accentuate. They begin with a speech given at a time when the democratic future of the UK and the whole of Europe was uncertain.

On 4 June 1940, following the British Expeditionary Force evacuation via Dunkirk, Churchill made his ‘fight on the beaches’ speech in the House of Commons.⁸ He referred to ‘long centuries of which we boast’ when conquest had not taken place, though stressing that such safety had never been certain. Here is the first example of a widespread, misleading perception. In reality foreign invasion has been as much a defining feature of the history of the British Isles as avoidance of it. Moreover, the sea surrounding the ‘island’ Churchill referred to repeatedly in his address to the Commons (though the state he governed occupied more than one island) could in earlier times facilitate rather than protect against incursion. As the historian Jonathan Scott writes: ‘In pre-modern Europe, where transport was efficient only upon water, the Channel was (as it were) a bridge, not a moat’.⁹

Two weeks later, on 18 June, France had a new Prime Minister, Marshal Philippe Petain, replacing Paul Reynaud, and was seeking peace terms from the Germans. Churchill gave his ‘finest hour’ address to the Commons. He asserted that ‘we in this island and in the British Empire’ were in solidarity with the conquered European nations. The ‘Battle of France’ had come to an end and Churchill anticipated that the ‘Battle of Britain’ would follow. The outcome would determine the survival of ‘the long continuity of our institutions and our Empire’. He concluded that if it was possible to achieve victory, then ‘if the British Empire and its Commonwealth last for a thousand years, men will still say, This was their finest hour’.

The power and value of the speech at the time Churchill delivered it are beyond question. Yet the claim about the ‘long continuity of our institutions’ does not withstand close scrutiny. The UK state began with the union between England (including Wales) and Scotland of 1706–07, too recent to claim a history of ‘long centuries’. Churchill may have had English ‘institutions’ in mind, but their incorporation with Scotland was itself an abrupt change, particularly if it is accepted that the Union was not simply an English absorption of the kingdom lying to the north. A further jolt came in 1800–01, with the joining of Great Britain with Ireland—most of which then left the Union in 1922. These changes alone serve to deny a smooth existence. Moreover, Churchill himself was at times an advocate of further dramatic shifts. In 1912, in a speech in his Dundee constituency (a city that would vote for independence in 2014), he had proposed a system intended to reconcile Irish pressure for Home Rule with UK constitutional balance, through a symmetrical decentralisation of power. Building on ideas he had put forward within government the previous year, Churchill argued that Ireland, Scotland and Wales should each have parliaments, with perhaps between 10 and 12 English regional bodies, all under the Westminster Parliament. Here was a quasi-federal model similar to that later pursued, not wholly successfully, under the Labour government first elected in 1997. Churchill left open the possibility of an even grander project, a politically integrated empire.¹⁰

The Home Rule idea of which this scheme was a manifestation did not ultimately succeed in preventing the most blatant interruption of continuity in UK history: the departure of all but six counties of Ireland that Churchill witnessed from the vantage point of the coalition Cabinet of David Lloyd George. Two decades later, as the Germans overran Western Europe in the early phase of his premiership desperate circumstances drove Churchill to become associated with further plans that, if implemented, would have meant further ruptures with past practice. In May, the War Cabinet sought to bring about Irish entry into the conflict through offering the Republic subsequent reunification with the North. The Republic declined.¹¹ Then on 16 June 1940, two days before the ‘Finest Hour’ speech, the War Cabinet had agreed a proposal intended to create a basis for continued French participation in the war. The terms were that ‘France and Britain shall no longer be two nations, but one Franco-British Union’ with ‘joint organs of defence, foreign, financial and economic policies’. It would have linked legislatures, a single form of citizenship and a unified War Cabinet.¹²

The Reynaud Government fell and the plan faltered with it. But the idea of European supra-nationalism persisted, manifesting itself in a continental integration project after the war. The UK was reluctant to participate in some of the key early initiatives such as the European Coal and Steel Community (ECSC) and the European Economic Community (EEC) (1957). But in 1961 the UK applied for EEC membership, following a reorientation of policy under the Conservative Prime Minister Harold Macmillan. Speaking to his party conference in October 1962, the Labour Leader of the Opposition, Hugh Gaitskell, explained his reservations about this development.¹³ His words demonstrate that the ideas and interpretations regarding the UK constitution this book seeks to reassess are not connected to any one party.

Gaitskell cast doubt on the idea that membership of the EEC was an economic imperative for the UK, and stressed the consequent impact on trade connections with the C...

Table of contents

• Cover
• Title Page
• Dedication
• Contents
• 1. Introduction
• Part I: The Written Constitutional Tradition
• Part II: A System in Turmoil
• Part III: A Constitution for the United Kingdom
• Acknowledgements
• eCopyright