The British Constitution

To be codified or not to be codified? That is the question

Dr Brian Brown, Going Postal

“The ultimate authority in the English Constitution is a newly elected House of Commons”. Walter Bagehot, 1867.

“It is not for the benefit of those who exercise the powers of government, that constitutions, and the governments issuing from them, are established”. Thomas Paine, 1792.

“Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”. Benjamin Franklin, 1755.

(NB. EU Remainer Lord David Puttnam, stated the UK surrendered its liberty and democracy to the EU in return for a perceived economic safety and security, July, 2018).

The refusal by the then Prime Minister, Gordon Brown, to allow a people’s referendum on the New Union Reform Treaty (Treaty of Lisbon), 2007, was undoubtedly one of the most significant acts of betrayal in modern British political history. The Conservative party proposal to hold a popular people’s vote on the implications of the Lisbon Treaty was defeated in the House of Commons by 311 votes against to 248 in favour; 63 votes won the debate. The Lisbon Treaty entailed the British Government signing away British Parliamentary sovereignty to an unelected Brussels based EU bureaucracy, without any recourse to the democratic will of the British electorate. The Lisbon Treaty represents a new version of the rejected EU Constitution. The EU Constitution was rejected following referenda in France, Netherlands and Luxembourg in 2005 resulting in the further planned referenda in EU states being cancelled. It was noted by the Parliamentary European Scrutiny Committee that only two of the Lisbon treaty’s 440 provisions were not contained in the original EU constitution document. This level of deception played out against the electorates of all EU states is deplorable and demonstrates the contempt held by elected politicians and the EU bureaucrats for anything democratic.

The question is, ‘How did the people’s elected representatives in Parliament get away with such betrayal’? I believe the answer likely lies in the way the British constitution has evolved over the centuries and ultimately has apportioned and concentrated too much power and authority in the concept and embodiment of ‘Parliamentary Sovereignty’.

The British Constitution

Unlike most other nations the British Constitution is not a single document but rather a vast array of statutes/laws, legal precedents and conventions which have evolved over centuries. However over recent decades EU treaties have been accommodated within this unconventional constitution. There is no definitive constitutional document to clearly set out the relationship between the British electorate and the elected politicians in Parliament. Thus, the British Constitution is referred to as an ‘uncodified’ constitution.

According to Prof. Andrew Blick (2011) the doctrine of ‘Parliamentary Sovereignty’ lies at the centre of most interpretations of the British constitution. Parliamentary sovereignty is underpinned by the notion that Parliament, primarily the House of Commons, can legislate freely and how it chooses, there is no higher authority to supersede Parliament and the UK courts must apply the laws made by Parliament. However this doctrine has been surrounded by controversy with many commentators disputing its desirability in a democratic society given that so much power and authority is concentrated in the House of Commons and in the hands of so few elected representatives.

Historically this concentration of power and authority was wielded by the British Monarch (King or Queen) who believed it was their divine God given right to hold absolute power over their subjects. This status afforded the Monarch was referred to as ‘Absolutism’ and was successfully challenged by the aristocracy in the 13th century leading to King John being forced to cede some power to a rebel group of barons following the signing of Magna Carta, 1215. Over the following centuries this transfer of power and authority continued with the monarchy being forced or obliged to accept a series of key change statutes leading to a complete transfer of legislative authority to the House of Commons following the enactment of the Parliament Acts 1911 and 1949. David Cameron stated that the established principle of Parliamentary Sovereignty enabled Parliament to pass any EU treaty or constitution into law, or repeal it. The key statutes are set out below in Table 1.

Table 1: Overview of Key English and British Statutes (basis for uncodified British constitution).

Statute Outcome
Magna Carta Libertatum,1215 Provided liberties and protection for a group of Barons. Implemented through a council of 25 Barons.
Petition of Rights, 1628 English constitutional document that sets out the liberties of the subject (individual) prohibiting the Monarch from infringing.
Instrument of Government, 1653 Establishes the House of Commons as a law making body able to pass acts of Parliament without consent from House of Lords or the Monarchy.
Bill of Rights, 1689 (the ‘Glorious Revolution) Lays down limits on the powers of the Monarch and sets the rights of Parliament including free elections at regular intervals and freedom of speech in Parliament. Codified certain individual rights and liberties. No Parliament can bind a future Parliament.
Parliament Acts, 1911 & 1949 The 1949 Act combines both Acts. Asserts the supremacy of the House of Commons (Parliamentary Sovereignty) – limits the blocking capacity or veto of the House of Lords. Elected MPs in government have the ultimate power and authority to pass laws. The courts must uphold these laws.

Transfer of power and authority complete.

David Barnby (2015) argues that complete unchallengeable Parliamentary Sovereignty, employed rigorously by the House of Commons, is contrived and incompatible with the Bill of Rights, 1689. The political elites prefer to adhere to the views and teaching of constitutional scholars like Walter Bagehot and A V Dicey who were both highly influential in advocating and installing the supremacy of Parliamentary Sovereignty. Historically, “No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea” (Chrimes, 1967). Unlike countries that have a codified constitution that prohibits the government from passing laws incompatible with the constitution, the British Parliament make laws as it thinks fit. In essence it has taken a few centuries for the absolute power of an individual (Monarch) to be transferred to the absolute of a few (House of Commons). This travesty was captured in the words of Pitt the Elder;

“….instead of the arbitrary power of the King, we must submit to the arbitrary power of the House of Commons? If this is true, what benefit do we have from the exchange? Tyranny, my lords, is detestable in every shape, but none so formidable as when it is assumed and exercised by a number of tyrants”.

It would seem Parliament, more apt the House of Commons, is dominated by the political party with the largest majority who form a government and then have unfettered power and authority to pass legislation without any further consultation with the electorate. The former Lord Chancellor, Lord Hailsham, referred to this phenomenon as “elective dictatorship” (Richard Dimbleby Lecture, 1976). What an apt description.

While this power evolution was occurring the right to vote on who was elected to Parliament was confined to a relatively small number of the British population based on wealth, privilege and position. The Representation of the People Act (Great Reform Act), 1832 represented a breakthrough for British democracy with the electoral base increased from 400,000 to 650,000 equating to 1 in 5 adult males being eligible to vote. A further 6 Reform Acts were passed in the next 167 years culminating in the Representation of the People Act, 1969 which introduced universal suffrage; voting rights for all adults 18 years and over. Democratic authority still lies within the people of the UK as the 2016 EU referendum demonstrated. The electorate vote MPs into Parliament, thus ‘lending’ them authority to legislate, according to their written party manifesto, for a period up to five years. Unfortunately not every voter will read a political party manifesto thoroughly; even so the ‘spin’ language used disguises the true meaning and extent of the proposals. For example, I am not aware of any party manifesto pledge that advocated uncontrolled migration into the UK; yet we got it. The great irony associated with this monumental achievement is that the enacting of the Communities Act, 1972 (UK membership of the European community) commenced the process of giving away our democratic rights as our election vote is now nearly meaningless.

The case for a codified constitution has gathered momentum since the 1970s, particularly during the 1990s onwards, as a consequence of successive UK governments ceding more and more parliamentary sovereignty and electoral democracy to the unelected European Union bureaucracy. The signing of the Lisbon Treaty effectively signed away parliamentary sovereignty to the EU. The UK courts are now more predisposed to ruling by applying EU law when this contradicts existing UK law. Prof. Bogdanor (2009) argues that parliamentary sovereignty is no longer the governing principle of the British constitution. David Barnby suggests that giant corporations now wield huge power over decision making through the EU bureaucrats located in Brussels while the people of the UK and Europe have witnessed their democratic rights ebb away.

Analysis and Comment

There is little doubt that for many decades an unhealthy concentration of power and authority has been held by politicians in the UK Parliament. This power and authority has been brutally employed to take the UK into the European Union via the signing of successive EU treaties that have effectively de-democratised the UK. The EU represents the most undemocratic institution in modern European governance. Many commentators view this power concentration in Parliament as a misinterpretation and abuse of the UK constitution. The ordinary British person has little insight to the appropriate or misappropriate use of the instruments of our constitution, thus constitutional scholars and elected representatives have found it relatively easy to interpret in their own self-interest.

The last vestige of British democracy was exercised by the people on 23rd June, 2016 in the EU Referendum; democracy was victorious. Since this historic event the Europhile elites have done everything in their power to overturn this democratic vote, with the most recent ploy to call for a ‘people’s vote’ on the final Brexit deal. This is perhaps the most critical period in the history of UK democracy. After centuries of conflict and protest that saw universal suffrage finally achieved in 1969 we cannot succumb to the anti-democratic forces of the EU and the ‘enemies within’ our own institutions. The 2016 referendum will no doubt be termed ‘Cameron’s Folly’ but from this folly the British people have one last chance to regain national sovereignty. I am convinced that the British political elite will at the first opportunity legislate the UK back into the EU, that is, if we ever leave. There is only one real secure way of future proofing our regained democracy; the drafting of a codified UK constitution. A codified constitution if properly drafted will establish a governance framework that prevents politicians from acting against the wishes of the British electorate. It will bring back true direct direct democracy. The British public need to decide how the future British constitution should work; ‘To be codified or not to be codified, that is the question?

The only solution to keeping Britain out of the EU in the future is to vote for a party and candidates who believe in British democratic values.

© Dr Brian Brown, Democrats & Veterans Party, for Direct Democracy. dvparty.uk
 

References

Barnby, D. (2015) – The EU: A Corporatist Racket. The June Press.

Bogdanor, V (2009) – The New British Constitution. Hart Publishing.

Blick, A. (2011) – Codifying – or not codifying – the UK Constitution: A Literature Review. Centre for Political and Constitutional Studies Kings College London. www.parliament.uk/pagefiles/56954

Chrimes, S. B. (1967) – English Constitutional History. London; New York: Oxford U. P.
 

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