The constitution

Powerhouses: Strength in a constitution quick to reflect social change, like the Marriage (Same-Sex Couples) Act.

Conflict between the Government, Parliament and the courts is still raw. Calling an election has not resolved the issues. It has merely postponed them until the next Government is formed.

  • Why are prorogation and the Fixed-term Parliaments Act important?

    The biggest areas of controversy in the period before the election revolved around two issues — the Fixed-term Parliaments Act of 2011 and the prorogation of Parliament.

    The Fixed-term Parliaments Act was introduced in 2011 to do two things: first, to ensure that the Liberal Democrat-Conservative coalition Government ran for the full five years of the Parliament.

    And second, to remove the power to call an election from the Prime Minister and place it into the hands of the House of Commons.

    The act contained two ways an election could be called by votes in the House of Commons: one needing two-thirds of all MPs to vote for it; the other — a vote of no confidence — needing only a simple majority.

  • So, what happened?

    What no-one expected when Boris Johnson wanted to trigger an election — the House of Commons refused to vote for it.

    The other big issue was the decision by the Prime Minister to prorogue (completely suspend) the whole of Parliament for five weeks.

    This was challenged through the courts, ending with the Supreme Court decision that the prorogation was unlawful. Again, this seriously curtailed the powers of the Prime Minister — although, this time, via the courts.

  • If the UK does not have a constitution, how can we have a crisis?

    The UK famously does not, almost uniquely amongst advanced democracies, have a written constitution.

    Instead it has a mixture of laws, conventions and codes.

    Pieces of legislation, such as the Fixed-term Parliaments Act; the Human Rights Act; the Freedom of Information Act, or the Constitutional Reform and Governance Act of 2010, all have some constitutional as well as legal force.

    But, unlike a written constitution, these pieces of legislation do not draw a clear line between what is constitutional or merely law. And, unlike constitutions, they can be amended or even overturned by simple majority votes in Parliament.

    So-called constitutional conventions are even less clear-cut.

    Some are not written down at all, but some are in a variety of documents, such as the Ministerial Code of Conduct, the Cabinet Manual, the Civil Service Code, and so on. But none of these have the force of law and can be rewritten at any time by the Government without any reference to Parliament.

  • Is constitutional change an issue in the election?

    It has become so. Labour’s manifesto states it “will repeal the Fixed-term Parliaments Act, which has stifled democracy and propped up weak governments”.

    The Conservatives say almost the same in theirs: “We will get rid of the Fixed-term Parliaments Act — it has led to paralysis at a time the country needed decisive action.”

    The Liberal Democrats would keep it.

    While this may seem like a consensus between the two bigger parties, it really isn’t because we don’t know what they would replace the act with.

    Labour is also proposing a much more fundamental look at the UK’s constitutional arrangements.

    Its manifesto says the “renewal of our Parliament will be subject to recommendations made by a UK-wide constitutional convention, led by a citizens’ assembly”.

    It also goes on to propose a whole series of possible changes, including votes at 16.

  • What is a constitutional convention and citizens’ assembly?

    A constitutional convention usually takes place when a country wants to write, or rewrite, its constitution.

    It is most often a meeting of all the political parties and civil society organisations, like trade unions, business and religious groups, local governments and others. An example was the Scottish constitutional convention from 1989 to 1995, which drew up a constitution for devolved government.

    It is not clear from Labour’s manifesto if this is what it intends. But if it does, it requires widespread agreement from all the potential interest groups which certainly has yet to happen.

    Labour is talking about a citizens’ assembly. This is a very different institution. It is usually a group of a few hundred ordinary citizens, selected rather like a jury. They meet to consider options for solving an issue. An example would be the Citizens’ Assembly established in Ireland in 2016 to consider a number of contentious issues, like abortion and the constitution.

    Again, it is not clear if this is what Labour means by its proposal.

  • So, what might happen?

    Given the stances of both the larger parties, it seems highly likely that the UK will be heading into a period of constitutional change. But with neither setting out much detail about what they want, or how they propose to get agreement for such important changes.

    In a fascinating paper for the Constitution Society, two constitutional historians, Dr Andrew Blick and Lord Peter Hennessy, have set out some of the issues as they see them.

    They conclude that much as the UK’s unwritten constitutional arrangements may have worked in the past, but that time is gone.

    The shake-up caused by Brexit, and politicians’ reactions to it, now require a more fundamental rethink about the need for a more written constitution. But there is little sign of an emerging consensus of even the need to do so, much less what and how to do it.

    This briefing is produced by The Day in association with ENGAGE Public Policy.

You Decide

  1. Who benefits most from an unwritten, flexible constitution? The Government or the public?

Activities

  1. Research the advantages and disadvantages of an unwritten constitution. Take a class vote on the option you consider better.

Word Watch

Supreme Court
The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.
Curtailed
Reduce in amount; impose a restriction on.
Almost uniquely
The UK along with New Zealand and Israel are the only three countries in the world to have an ‘unwritten’ constitution.
Conventions
Constitutional conventions are rules that are observed even though they are not written in any document having legal authority.

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