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We need to talk about the Deep Constitution of Britain

Does anyone really have any idea about the constitutional changes taking place in Britain, or the impact they will have on people’s lives? The constitution is changing fundamentally as a result of devolution to Scotland, Wales and Northern Ireland; our membership of the European Union, World Trade Organisation, and other measures. Devolution to city regions, the EU referendum, the Transatlantic Trade and Investment Partnership (TTIP) Investment Court, and climate change treaties will bring about even bigger constitutional changes.

These radical changes are being negotiated in silos, with little connection between them and no shared vision for the future of these islands. Far from a shared vision, these changes are being driven by political calculations about competing visions for Britain. Rival political movements are campaigning hard for Britain to leave the EU, independence Scotland, greater social solidarity, or a smaller state and competitive economy. Each of these movements share some common ground but are also fiercely opposed, so that the Conservatives and UKIP want a smaller state and competitive economy but compete for votes and are likely to be opposed over the EU, while Jeremy Corbyn’s Labour and the SNP share a commitment to social solidarity but compete for power in Scotland. Meanwhile growing numbers of citizens feel that no party represents them.

Conflicts over the constitution reflect wider changes in society, to do with globalisation and the economy more than party politics. To engage democratically with what is happening, we need to understand the “deep constitution” of Britain and create new ways for citizens to have a voice – and power – in decisions about how these islands are governed.

What is the deep constitution?

A constitution is a set of fundamental principles and precedents according to which people govern their state (or any organisation). Whether or not a constitution is written matters less than the powers and principles that govern people in practice. The constitution of the Soviet Union enshrined freedom of assembly and speech, but unwritten rules set strict boundaries on what was permitted. The US Constitution was founded on a declaration that all men are created equal, but permitted slavery and the development of extreme inequality.

Conventional constitutions set out powers of the principle offices and institutions of the state as well as the rights and freedoms of citizens. Constitutional measures are above statutory law, so that laws which violate them can be ruled unconstitutional, particularly in countries which have a written constitution and constitutional court. This is less clear in the UK, because we do not have a written constitution, but treaty commitments such as the Acts of Union with Scotland (1706/7), membership of Nato and the European Union, international trade agreements, conventions on human rights, judicial review and many other measures can be used to overrule domestic law and force UK law makers to comply with constitutional principles. Some of these measures are not formal or even legal. Civil disobedience and riots against the poll tax, for example, stopped measures which many people saw as breaching a fundamental principles of fairness.

These measures are part of what I call the “deep constitution”, which create the ‘system conditions’ for governing the country and people’s lives within it. These are like the operating system and core applications on a computer, which enable people to make and carry out everyday decisions. Conventional political constitutions and treaty obligations are a subset of the deep constitution, which include all elements of the frameworks governing the nation at all levels.

These elements of Britain’s deep constitution today include:

  1. Core enforceable political principles such as the rule of law, taxation, property rights, canon law, civil liberties and freedom of information;
  2. Social and economic principles and rights governing employment, housing, social welfare, income distribution, social solidarity and the treatment of minorities, some of which are enforceable, while others are embedded in custom, convention and social conditions;
  3. Core institutions including the monarchy, Parliaments and national assemblies, local authorities, courts, Church of England, armed forces, charities, universities, Bank of England, civil service, secret services, police, prisons, political parties, limited liability, cooperatives, national parks; private, state or free schools; the BBC, NHS and access to the internet;
  4. The accepted powers of different institutions and groups, including the ‘social licence’ and trust extended to institutions, professions and sections of society;
  5. Legal principles and precedents which are upheld and enforced;
  6. The institutions and sanctions for accountability and enforcement, both formal and informal, including courts, regulators, inspectors, and tribunals;
  7. Procedures for law-making: how and by whom rules are made, by Parliament as well as judges, local authorities, companies, trade unions and other institutions;
  8. How law-makers are appointed, scrutinised, held to account or removed;
  9. Enforceable limits on powers of the state, rulers and others, including judicial review;
  10. Treaty obligations in international law and membership of the United Nations and other institutions of global governance;
  11. Legal tender and the management of money in all its forms;
  12. Languages of the state and in society;
  13. Fundamental values which inform the conduct of government and society;
  14. Rules and procedures for changing the constitution, which in the UK are diverse, including Orders in Council, Parliamentary legislation, judicial rulings and referendums.

These elements are much broader than our conventional understanding of the constitution, but they constitute the nation more profoundly than any legal document. The state is clearly central to the constitution (points 5 – 10), but it is not necessarily the most powerful governing institution: in some countries religious authorities, the royal family, military, private companies, unions, a political party or other interests exercise more power, in their own right or through the state. It also acknowledges our global interdependence.

Origins of Britain’s constitution

Britain’s constitution has deep roots in the arrival of Christianity, establishment of churches and monasteries; Anglo-Saxon kingdoms, Norman conquest and development of the English language; the freedoms of market towns, craft guilds and sheriffs; the development of London as a financial centre, the Bank of England, sterling gold standard, and limit liability; independence of universities, establishment of public schools, printing and a free press; the Scottish Enlightenment, royal societies, industrial revolution, empire, civil service reform among others. All of these contributed to Britain’s constitution by setting system conditions that govern society and make it possible for people to do some things while limiting their power to do other things.

It includes changes in the legal status of Catholics, Jews and colonial citizens over many centuries. Immigrant communities have also brought changes to the deep constitution, such as the use of other languages in official documents, respect for kosher and halal food, or even limited use of Shari law by some communities. Equality laws and the nine “protected characteristics” such as age, disability, pregnancy, race, religion, sex or sexual orientation are new features of the deep constitution.

Every constitution represents a political settlement between groups in response to particular political problems. When power and interests in society change, then the constitution is changed, usually by stealth, sometimes through a new political settlement. In Britain classical constitutional settlements are recorded in documents such as the Magna Carta, the Bill of Rights, Acts of Union between Scotland and England or laws extending the franchise. The Good Friday Agreement of 1998 included both a multi-party agreement by most of Northern Ireland’s political parties and an international agreement between the British and Irish governments, confirmed by a referendum in both jurisdictions of Ireland. It also established the British-Irish Council of the eight administrations for the British Isles. Some constitutional measures are conventions or inventions, such as relationships between the upper and lower houses of Parliament or the role of the Monarch, the Nolan Principles of Public Life, and the Ministerial Handbook.

Many elements of Britain’s deep constitution do not appear in conventional constitutional documents, although the Magna Carta and other key documents did include social and economic rights which have not been recognised for their constitutional importance (see Linebaugh 2008). However, social and economic rights govern the conditions of life for most people more profoundly than purely political rights. Thus provisions for working conditions, employment, social housing, welfare rights and the National Health Service were significant changes in the deep constitution which had a material influence on peoples’ lives.

These measures are more than ordinary statute law because they fundamentally change the balance of power between interests in society, permanently transferring power and resources between groups. The details of welfare benefits, employment rights or health services are matters of policy, but the principle that people should not be utterly destitute, that employers do not have unlimited power over staff, or that health services are provided on the basis of need, not income, and are free at the point of use, are constitutional matters.

Britain’s deep constitution also includes the complex governance arrangements for local areas and public services, which are a patchwork elected councils, mayors and commissioners for Crime and Community Safety; interest groups such GPs on Clinic Commissioning Groups and business people on Local Economic Partnerships; government agencies (Quangos), Regional Schools Commissioners, regulators like Ofgen and inspectors like Ofsted. The Geneva Conventions, United Nations, Nato, European Union, World Trade Organisation and other institutions of global governance also put significant constraints and responsibilities on both citizens and rulers.

It is noteworthy that domestic constitutional arrangements, such as the powers, boundaries and assets of local governance can be changed more easily than international obligations through the EU, NATO, IMF or World Trade Organisations. This reflects the deep integration of the modern world and necessities of global governance.

Sifting foundations of the constitution

Codification of the constitution is an attempt to protect certain principles and powers as well as control the process of constitutional change, but it only succeeds to the extent that it is accepted by both the powerful and the population. Constitutions that lack consent or are forced on people, as Southern Ireland before 1921, apartheid South Africa and many other countries, are eventually overthrown. In the original US Constitution the article permitting the slave trade was unamendable until 1808 and slavery was only abolished as a result of a brutal civil war from 1861 to 1865. China has changed its constitution several times to accommodate the transformation from a Soviet-style centralised state to a capitalist economy governed by a centralised nationalist party.

Aspects of the constitution that are not codified or protected in law are easier to change. This can be an advantage, enabling societies to adapt their governing principles to changing circumstances. Much of the deep constitution is not codified anyway, so that profound changes such as the introduction of welfare rights, trade treaties and same-sex marriage could be relatively easily. But the ability to change other areas to the deep constitution so easily may not be so desirable.

Britain today is experiencing immense changes in the interests, power and conditions for different groups. There have been far-reaching changes in almost every element of the deep constitution, which is driving change in the conventional constitution as well. As Professor James Mitchell wrote in Scotland, citizenship and choice: the deep constitution (Open Democracy, 5 April 2013), “the question of the Scottish constitution goes far beyond the domain of institutional relations. Crucial to this is the shape and nature of the welfare state envisioned.” The campaigns for devolution and impendence are essentially a response to changes to the deep constitution, such as the council housing, industrial restructuring, poll tax and welfare rights. These are much more than policy issues, but parts of the deep constitution which govern people’s lives and set the framework for national decision-making. By changing the social contract between citizens and the state without the consent of most people in Scotland, the UK government changed the national frame of reference, so that many felt they no longer belong to the same country as England. Decisions on EU membership, nuclear weapons and constituency boundaries could put the question of independence on the agenda again by the time Scotland celebrates the 700 anniversary of Declaration of Arbroath in 2020.

Some of the conventional constitutional changes currently taking place in Britain include:

  • English Votes for English Laws.
  • Greater devolution to Scotland, Wales and Northern Ireland;
  • “Devolution Deals” between central government and different regions;
  • Elected Mayors for more cities and cities regions from 2017;
  • A referendum on EU membership before 2017;
  • A reduction in MPs from 650 to 600 and changes to constituency boundaries.
  • Replacement of the Human Rights Act with a ‘British Bill of Rights’.

Other deep constitutional changes currently underway include:

  • Review of the BBC Charter
  • Transformation of NHS England, including the NHS Constitution, Foundation Trust hospitals, Clinical Commissioning Groups, the NHS Citizens’ Assembly, Health Watch and many other bodies in health and social care;
  • The growth of free schools and academies, overseen by Regional Schools Commissioners for England
  • The creation of competitive markets in public services and the growth of independent providers including charities, transnational corporations and foreign state agencies.
  • The fundamental shift in housing tenure, started under Mrs Thatcher, to reduce social housing, increase in the private rented sector and use home ownership as a store of value for citizens;
  • Restructuring of the pensions system;
  • Outcomes from the Speaker’s Commission on Digital Democracy
  • A reduction in the size of the state.

These changes could be seen as policy issues, but they are changing the system conditions which determine what kind of country we become. Several of these changes also widen the gap between the deep constitutions of England and Scotland or Wales, which will almost certainly affect the formal constitutional relationships between the nations of Britain.

It could be argued that this piecemeal, parliamentary route to constitutional change is the British way. This widened the franchise during the 19th and 20th century, brought in the welfare state after 1945, the Thatcher revolution after 1979 and the constitutional reforms of the Blair government after 1997. But it is also possible that the current scale of constitutional changes means people no longer have any control over the direction or governance of the country. These ad hoc piecemeal changes are creating jigsaw pieces that no longer fit, so that the United Kingdom will inevitably break up. This may be the preferred option for Scotland, particularly if England votes to leave the EU, but it would be better if the people of these isles could have a proper conversation about the kind of country they want and the constitutional arrangements which would make it possible.

One constitutional convention or many conversations?

It is tempting to conclude that the constitutional challenges facing Britain means that we need a constitutional convention. Although the idea of a convention is supported by most opposition parties, the Conservative government does not think it is necessary and would be highly unlikely to implement recommendations from an independent assembly. No British government would implement major constitutional changes without clear electoral advantages or a major political threat. The response of Parliament to demands for Irish home rule, House of Lords reform and proportional representation shows how difficult conventional constitution change can be.

However, the complexity and diversity of Britain’s constitutional issues and the wide differences of opinion about them make it highly unlikely that a convention is likely to reach agreement.

Formal constitutional changes usually respond to a crisis, as in 1689-90, 1832, 1911 and 1914. In What’s Wrong with the British Constitution? Professor Iain McLean calls these ‘constitutional moments’, when “the People overcame the veto of a non-elected player” (2010: 44). The steady increase in devolution of powers to the Scottish Parliament can also be seen as a response to the ‘will of the people’ expressed through support for the SNP and the referendums of 1979, 1997 and 2014.

Changes to the deep constitution are less clear cut, but 1945 and 1979 were clearly turning points, and it is possible that 2015 will be seen as another. These are not been seen as constitutional changes, but their impact on the governance of Britain was no less profound than the Glorious Revolution or Great Reform Acts. These changes were proceeded by a great deal of deliberation as well as experiment by local authorities, who pioneered both the welfare state and the privatisation of public services. The Scottish parliament, Human Rights Act and freedom of information are also examples of significant constructional change following citizens’ deliberation, through the Scottish Constitutional Convention and Charter 88 respectively. In both case they responded to changes in the deep constitution and gained enough political support to be carried out.

The many constitutional changes pursued by the government could result in a constitutional crisis – England votes to leave the EU, Scotland votes to leave the UK, and leaders of regional devolution deals gang up against the government to demand greater powers. But it is just as likely that a crisis is averted and a new settlement is achieved by subterfuge.

Citizens can influence the current constitutional changes by lobbying local councils over their devolution deal and lobbying parliament over legislation for Scotland, the EU, Human Rights Act, etc. But these piecemeal campaigns could have more impact by focusing on the separate stands in a more coherent and coordinated way. A joined up conversation about the specific changes proposed by the government, particularly the city devolution deals, Scotland Bill and EU membership, could give citizens a more effective voice than a formal convention.

This would mean a series of deliberative meetings at a local, regional and national level, through which ordinary citizens as well as councillors and members of political parties can have an informed discussion of the issues and produce recommendations for local councils, Members of Parliament and the public to debate. Deliberative meetings, over a few days or spread over a longer period, could consider the top constitutional issues being debated. This would inform and deepen the public debate so that citizens can influence the outcome. Such meetings would draw on experiences of the recent Citizens’ Assembly pilots, the Oregon Citizens’ Initiative Review and many other democratic innovations, and connected by an online crowd-sourcing platform.

It would be possible to develop a flexible package of information and activities that could be adapted for different areas, and run by trained volunteer facilitators in community premises, schools and town halls at relatively low cost. Materials and guidelines could also be provided for self-organised discussion-action groups.

The constitutional conversation could be widened through exhibitions, performances, broadcasts and public events marking anniversaries, such as votes for women in 1918, 25th Signature of the Maastricht Treaty in (7th Feb 1992), independence of the Bank of England (6th May 1997), or the Declaration of Arbroath in 2020 – and many more.

Who could run a national constitutional conversation in Britain?

In Scotland the constitutional convention was run by an alliance of political parties, churches, academics, trades unions, business organisations and other civic groups. It was a self-selecting and fairly elite group. It did not involve a wide cross section of citizens, although most participants were connected with local communities in many different ways and drew on a wide range of public opinion. The Scottish constitutional convention was driven by changes to the deep constitution by the policies of Mrs Thatcher’s government; the rise of the SNP, which threatened the Labour Party; the failure of the 1979 devolution referendum; and a sense of Scottish identity, regardless of party. These factors do not exist in England today, which has ten times more people than Scotland and therefore much harder to engage.

Nevertheless, changes to the constitution will affect many groups across Britain, who could benefit from a joined-up constitutional conversation, including:

  1. Local authorities who are developing devolution deals with the Treasury at the same time as their finances are being squeezed: public engagement would help to improve these deals and strengthen their bargaining position, even if local people do not support the specific details proposed by them in the first instance;
  2. Nations and regions of the British Isles, including Eire, Northern Ireland, Scotland and Wales, which are undergoing deep constitutional changes themselves;
  3. Businesses: the lack of clarity or autonomy in local governance and the uncertainty over Europe is a concern for many businesses;
  4. Trades unions and their members have been particularly affected by policies of austerity and changes to the deep constitution;
  5. Churches and faith communities have an interest in strong local communities and social cohesion;
  6. Academics working on constitutional issues and social policies affected by the deep constitution;
  7. Adult and community educators and youth workers engaged in social purpose education
  8. BBC may be interested in filming, covering or sponsoring citizens’ deliberations as part of their coverage of the devolution deals and EU referendum;
  9. Democracy organisations such as the ERS, Involve, Democratic Society, Locality, Thirty Eight Degrees, Unlock Democracy and Democracy Matters.

An alliance drawn from these sectors, including councillors from across the party political spectrum in local government, could create an independent, citizen-led, broad-based conversation about constitutional issues facing Britain today and set the agenda for tomorrow.

Outcomes

A connected series of structured, in-depth conversations along these lines could produce several tangible outcomes:

  1. A statement of shared values, principles and core institutions which people recognise as fundamental to their way of life, representing the deep constitution of the British Isles;
  2. Specific recommendations to improve the details and democratic accountability of constitutional changes currently under way, particularly on devolution to regions and nations and the European Union;
  3. Better informed citizens who are more deeply engaged in the political process.

This process could identify some core principles and institutions which we recognise as a “declaration of Britain” or even a constitutional code describing the actual governance of Britain and its deep constitution. This would not look like any conventional constitution, but it might be the basis of a new kind of constitution for an interdependent world.

If a future government does hold a constitutional convention, these conversations will have laid the ground work. But in the absence of a convention or coherent approach to constitutional change, a systematic programme of deliberation could be a catalyst for local communities to engage with the current changes. They will, at very least, strengthen the voices of citizens’ in the process

References

  1. Linebaugh, Peter (2008) The Magna Carta Manifesto: Liberties and Commons for All, University of California Press, Berkley, CA, USA
  2. McLean, Iain (2010) What’s Wrong with the British Constitution? Oxford University Press
  3. Mitchell, James (2013) Scotland, citizenship and choice: the deep constitution, Open Democracy, accessed Nov 2015
  4. Smith, Graham (2009) Democratic Innovations: Designing Institutions for Citizen Participation, Cambridge University Press

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