Written evidence submitted by Dr. Andrew Blick (AMC 87)
Evidence submission to the House of Commons Political and Constitutional Reform Committee “Consultation on a New Magna Carta”
Dr. Andrew Blick
Lecturer in Politics and Contemporary History
Institute of Contemporary British History, King’s College London
Submitted in a personal capacity
1. I have been research fellow to the project based at King’s College London providing support to the present the Political and Constitutional Reform Committee inquiry. The following submission, made in a personal capacity, draws on my parallel investigations into documents from United Kingdom (UK) and English constitutional history. A number of points significant to debates about the possibility of codifying the UK constitution emerge from this study. They draw on my forthcoming work on this subject, Beyond Magna Carta: a constitution for the United Kingdom (2015 forthcoming).
2. It is appropriate that this stage of the inquiry should use the phrase ‘New Magna Carta’. Magna Carta appeared in its original form in 1215 and celebrates its 800th anniversary next year. It is one of a number of documents recurring through English and UK history that possess some of the qualities of a written constitution, even if not necessarily fully attaining this status. (I leave consideration of the other parts of the UK, an important subject, to others better qualified to do so). They date back as far as the law code King Ethelbert of Kent issued at the turn of the sixth/seventh centuries. Numerous texts followed, including:
3. In the post-Conquest era, documents include:
4. A consideration of these instruments and others has a bearing on each of the consultation questions, responses to which now follow.
Does the UK need a codified constitution?
5. It is clear that on many occasions in UK and English past, numerous documents performing functions associated with a codified constitution have existed. They do so because they deal with multiple aspects of the political system, such as:
(a) the institutions of governance. Magna Carta, for instance, deals with matters such as local government, the legal system, and mechanisms by which the ruler should consult with his subjects over the raising of taxes. The Instrument of Government provides for a Parliament and a Lord Protector; while the Treaty and Acts of Union of both 1706-7 and then 1800 provide for a Parliament and make arrangements for the legal systems of the new kingdoms they establish.
(b) rights. At the very earliest stage, the Ethelbert code provided for the privileges of certain groups, most notably women. It is important to stress that rights at this points rights did not have the universal quality that the term implies now. But successive documents through English history contributed to the development of this more modern conception. They include Magna Carta, which eventually inspired ideas about rights to due process; the Instrument of Government and its limited but significant provision for religious freedom; and the Bill of Rights, that enjoys an international influence rivalling even that of Magna Carta.
(c) the underlying values of the polity. Often these texts contain a preamble setting out their central purpose, as codified constitutions often do. The Ethelbert document sought to ensure a social order that ensured redress for criminal injuries, preventing their escalation into escalating revenge attacks. One of the purposes of King Alfred in introducing his law code may have been to achieve a degree of shared identity and cohesion among the English people during a period of external Viking threat. Texts such as the Cnut code, Magna Carta, the Petition of Right and the Act of Settlement promoted the idea of limitations upon executive government, feeding into the development of the principle of the rule of law. Texts could contain a strong religious purpose that might – as in the case of the Bill of Rights and the Act of Settlement – involve discrimination against denominations deemed dangerous. The Parliament Act enforced the principle of the primacy of the House of Commons, the elected chamber, over the House of Lords, then the hereditary chamber.
6. From this historical perspective it is clear that many in England and the UK have seen a need for documents providing some of the qualities that might now be derived from a codified constitution. Furthermore, for those who place a premium on precedent, it is plain that the concept of a codified constitution is not as alien to this country as is generally believed. Furthermore, the texts discussed here were crucial to the development of the concept of the codified constitution internationally. Most importantly, they provided inspiration for those engaged in events leading to the appearance of the constitution of the United States, the most celebrated text of its type internationally. Such texts as Magna Carta, the Instrument of Government and the Bill of Rights were all important influences the colonists, who believed that ancient rights had followed them across the Atlantic, which they eventually set about expressing in new documents. In this sense, a codified constitution for the UK would represent a return of this concept to its source.
If so, which of the three options offers the best way forward?
7. Consideration of these historical documents suggests the existence of a powerful and longstanding urge, in the UK and England as elsewhere, to attain certain qualities that are best obtained from fully-blown written constitution. They have long sought to provide crucial rules with a fundamental status. Magna Carta and the Treaty and Acts of Union assert that they will remain in force forever. A perennial legal debate surrounds whether the UK Parliament is able fundamentally to alter the terms of the union between Scotland and England. The Instrument of Government is more sophisticated, seemingly making its amendment subject to a more demanding level of approval than normal legislation. Modern written constitutions use similar mechanisms to provide their contents with a status superseding that of regular law.
8. Another sense in which historic texts resemble complete written constitutions is that they have often rested on wide engagement of social groups, judging by the norms of their time. In his sense they were the expression of a group wider than one leader. Anglo-saxon rulers based their law codes on consultation with their ‘witan’ of magnates; and after the Conquest kings still felt obliged to follow this precedent to some extent. A flaw in the Instrument of Government was that only a small group of army officers took part in devising it. The 1689 Bill of Rights was initiated by a Convention (in the form of a Declaration of Rights) that eventually decided it was a Parliament. Subsequent assemblies internationally engaged in constitution-building of various kinds have used the label ‘convention’. The use of this term in England in 1689 was a direct influence on those who first adapted it in America the following century. Written constitutions today are typically the work of conventions, that seek to speak for the people as a whole, infusing the documents they produce with popular sovereignty.
9. As previously discussed, a number of English texts have been part of an historical process culminating in the appearance of the written constitution. The Henry I Charter of Liberties, Magna Carta, the Petition of Right, the Instrument of Government and the Bill of Rights were all influential upon the fuller development of the written constitution in America, culminating in the Declaration of Independence, the constitution itself, and the first batch of amendments to it, comprising the US Bill of Rights. In this sense the idea of a full written constitution is not – as sometimes claimed – alien to the UK, and represents the fulfillment of values that have their genesis here. However, especially from the seventeenth century, the doctrine of a supreme or ‘sovereign’ Parliament seemed to attain supremacy over the texts discussed here. Even Magna Carta was clearly subordinate to the Westminster legislature, that repealed most of its provisions from the late nineteenth century onwards. A UK written constitution that provided firmly for entrenchment through heightened amendment procedures, and judicial enforcement, even to the point of courts being able to disapply or strike down parliamentary enactmnents that were incompatible with the constitutional text, would give expression to the current of English and UK constitutional thought that has so far not found a full outlet in the UK.
What changes would you like to be made to your favoured option if you have one?
10. Without making specific recommendations for inclusion, it is certain that these documents from our past suggest a wide range of possible options. For instance:
11. As these provisions show, while reference to the past is sometimes used as a means of rejecting the concept of a written constitution for the UK, it can in fact suggest that such a text would be in keeping with past practice in the UK, and help us determine its possible form and content.