Written evidence submitted by Dominic Brown (AMC 98)

 

‘A New Magna Carta?’

 

 

 

Introduction

 

  1.          My name is Dominic Brown and I am an undergraduate student level 3, studying politics and international relations at the University of Manchester. This submission is part of my module Poli32401 Contemporary Parliamentary Studies and the British Political Tradition.  It is a privilege to be able to submit evidence to a select committee not only as a student of politics but as somebody who is actively involved in politics in my role as constituency chair for my party where I live. I hope my comments and ideas will be of interest to the committee.

 

  1.          This submission deals with the three main questions concerning a codified constitution. It will discuss why the UK needs a codified constitution and due to the current advantages of an unwritten constitution will explain why a constitutional code is the best way forward for the UK. The submission will then examine areas in which the Kings College proposal regarding the constitutional code could possibly be changed with a focus on the parliamentary term and the calling of elections. The submission will conclude by arguing that the flexibility and protection of a constitutional code will be an advantage for the public.

 

Does the UK need a codified constitution?

 

  1.          The UK is one of the few democracies in the world to not have a codified constitution along with New Zealand and Israel. The UK’s constitution is unwritten and is based on conventions, procedures and acts of parliament that have gradually come together throughout the years and formed the basis of our constitution.

 

  1.          The fact that the UK is amongst a small minority not to have a codified constitution and the fact that the conventions and procedures are not collected in one single document are strong reasons why the UK needs to address this issue with a codified constitution. 

 

  1.          An area which could be helped by a codified constitution is the boosting of national pride and getting the public interested in politics when a constitution is available for them to study. This must be tempered by the fact that it won’t necessarily solve the issue of declining voter participation as even though countries like Germany have a strong constitution with high levels of voter participation you have countries like the United States whose constitution is equally strong but the levels of voter participation remain low.

 

  1.          With the current situation of the voting system not producing a clear winner a codified constitution would be a benefit to the public and those observing the election. An election resulting in a coalition is a difficult process to follow and conventions like the Prime Minister having the first opportunity in attempting to form a coalition and ultimately acting as a caretaker Prime Minister during opposition negotiations would have been better served by the conventions appearing in a codified constitution.

 

  1.          The entrenching of certain conventions in a codified constitution will mean decisions taken will need strong support from parliament and the public to proceed instead of relying on manifesto pledges that may not be widely known by the public.

 

What kind of constitution?

 

  1.          The arguments above have highlighted reasons why a form of codified constitution would be beneficial. But these reasons do not go deep into the argument in favour as there are still merits of the current uncodified constitution. In that case the form of constitution this submission believes would suit the UK best and would be a necessary start point for a full written constitution is a constitutional code, which has been well defined by Kings College in the ‘A New Magna Carta’ report (2014).

 

  1.          A constitutional code would give the people of the UK their own document and will explain how their country operates. It being a constitutional code and not enshrined in law also means it comes with a degree of flexibility which allows changes that are natural through the passage of time. A recent example is the Succession to the Crown Act 2013, which removed male primogeniture from succession to the British throne. But the fact that the constitutional code will be an elevated document and not simply a mass of conventions not known to the wider public will guarantee what is contained within it has a certain degree of protection.

 

  1.      Other countries adopting a written constitution have done so historically from a position of crisis and therefore a rigid constitution is easier to accept for them than the UK. Also in a modern world when boundaries are blurred by globalisation and sovereignty is uncertain because of supranational organizations, having a rigid constitution may not be helpful as it could be based on short term decisions that soon look out of place, so a constitution that can be altered is important for the UK

 

  1.      A politicised judiciary is another significant reason for having not having a constitutional code enshrined by law. The UK has a system of political primacy and having a written constitution would change this. A possible solution would be to elect the judiciary although it would be a complex election to place in the hands of the public and could suffer the same problems as the Police and Crime Commissioner election in that it’s not fully understood. In their blueprint for a full written constitution Kings College suggest that the judiciary be selected by the Head of State on advice from the Prime Minister, this is also undesirable as this could result in political selections.

 

  1.      The problem of a politicised jury has been seen in countries with strong constitutions arguably one of the most famous examples being the United States Presidential election of 2000 and the vital Florida recount. The final decision on this recount found its way to the US Supreme Court, made up of nine judges who had been nominated for the role by previous Presidents. Their decision was 5-4 in favour of stopping the recount handing the election to George W. Bush, but the issue with the Supreme Courts decision was the partisan nature of it with the conservative judges effectively finding in favour of the conservative candidate. This example shows the danger of a constitution giving unelected officials the ultimate say.

 

  1.      The constitutional code is also a valid choice as it would act as a stepping stone for any further constitutional reform. A constitutional code would be unlike what is seen in other countries but this is mainly due to the almost unique situation of the UK having an uncodified constitution. This submission believes a full written constitution is a step too far but if that was the ultimate goal then a constitutional code would be a necessary stepping stone in defining the conventions that are most important to the UK.

 

What goes in the constitutional code?

14.        The constitutional code would be flexible but there are important conventions that need extra protection. In order to do this it should adopt similar measures as the New Zealand Electoral Act 1993, specifically section 268 which protects certain provisions contained within the rest of the act against amendment or repeal unless there is a vote to do so by two-thirds of parliament or support from the public in a referendum. Unlike section 268 in New Zealand the UK version should be protected from repeal by the same measures as the other provisions. The addition of this measure means that significant conventions would be entrenched but changing them would still be possible democratically.

 

  1.      There are parts of the code that are regularly debated like paragraph 16 contains both the voting age and votes for prisoner’s question. It is areas like this that may benefit from being entrenched so as to allow a greater debate if any change is planned. Also there is a constant debate about the House of Lords with parties taking different stances on its future. If the governing party wants to abolish the House of Lords and this was part of their manifesto, it being such a drastic change to the constitution it would probably be suitable for the role of the House of Lords to also be entrenched in the code with the governments program to be decided via referendum. Some areas of the code like police and crime commissioners may not even be in place after the next election.

 

  1.      The specific arguments for what changes should be made to the code would take up a larger debate than this submission can provide so instead it will be focusing on one specific area in the code that should be revaluated, paragraph 26, fixed-term parliaments.

 

Fixed-term parliaments and what they replaced.

 

  1.      The length of parliament is an important part of the constitutional conventions of the UK. This is seen by the Parliament Act 1911 which removed the veto power of the House of Lords except over any attempt to extend the life of parliament over five years. The parliamentary term since 1911, whilst being a maximum of five years was at the disposal of the Prime Minister and they could advise the monarch on dissolution of Parliament at any point within those five years. The Fixed-term Parliaments Act 2011 has changed this with the only two possibilities of an early election being a vote of no confidence against the government, or a two thirds majority voting in favour of an early dissolution.

 

  1.      One of the main charges levelled at the old convention was that it placed too much power in the hands of the executive. The Prime Minister could call an election whenever they wanted but a full five year term had negative connotations and was often seen as a sign of a government with poor election prospects (Wheeler, 2014). This was the case with the governments of 1964, 1979, 1997 and 2010 that were all defeated and also the parliaments of 1950 and 1992 saw heavy losses for the governing parties. So the executive could be penalised by the voters for not calling an early election.

 

  1.      It is the significance of the previous parliamentary term, which had been in place since 1911 and has been the only system that any elector in the UK alive today has ever taken part in that this submission believes is an important reason why the conventions of the UK need to be put into a constitutional code with certain conventions like those enacted in the Parliament Act 1911 being entrenched. The lack of opportunity for the public to have a say in big constitutional moments that are instead enacted by a commons majority would not be the case with a codified constitution.

 

Fixed-term problems.

 

  1.      With the average length of parliament less than four years, changing to a five year fixed-term creates a democratic problem; the public now have fewer opportunities to vote. If the two 1974 elections count as one a 21 year old voting for the first time in 1945 has had the opportunity to vote in 17 general elections until 2010. That same period of time for a 21 year old voting for the first time in 2010 would allow them to vote in 14 general elections. The five year fixed-term also guarantees more young people will have to wait until they are 22 to be able to cast their vote for the first time. These are two areas of concern in regard to democracy as it means less participation and would suggest entrenching the Prime Ministers ability to dissolve parliament could resolve it.

 

  1.      The removal of the dissolution means the Prime Minister can no longer go to the country to gain a workable majority if in a coalition or minority government. This calls into question if the UK is happy with coalitions or not. Coalitions are popular in countries like Germany where they are almost ever present and part of the political landscape. But this isn’t the case in the UK with recent polling suggesting the public do not favour coalitions (Ipsos MORI, 2014, p.4). With dissolution in the hands of the Prime Minister the chances of majority governments being formed seemingly in line with what the public want. The Westminster model of the UK, defined by Liphart (1999) is gradually changing and becoming more like a consensus model, a sustained period of coalition could lead to even more changes. If preserving the Westminster model is important then this submission believes entrenching the Prime Ministers ability to dissolve parliament could preserve it.

 

  1.      If having codified constitution is a way to get the public more invested in how their country operates then a fixed-term parliament should not be part of the code. Research by Hansard (2008, pp.54-55) shows that fixed-term parliaments were not considered important by the public and a majority were satisfied with the previous convention. There is also evidence that at certain times when there is either a change of leadership or a political crisis the public will support an early election (BBC, 2007; ComRes, 2009). Since the fixed-term parliament act there has been the opportunity for the public to take part in e-petitions which could allow them to have a louder voice in lobbying the government for an early general election than was ever the case in the past. Entrenching the Prime Ministers ability to dissolve parliament will allow the public to lobby government and to possibly have an effect.

 

  1.      The motion of no confidence contained in the Fixed-term Parliaments Act could cause possible constitutional problems. The previous convention of parliament was that finance bills and the Queens speech were confidence issues which could bring down the government (House of Commons Information Office, 2010, p.3). But with this no longer the case the main opposition parties are no longer obliged to respect this tradition and with a period of coalition government there is a possibility that significant numbers could vote against the budget especially in the run up to an election when they have nothing to lose, causing an impasse (Talbot, 2013). If this happens a precedent could be set which allows future Queens’s speeches or finance bills to be voted against even early in the parliamentary term, running the risk of the government being unable to function. Unless a vote of no confidence is passed this could lead to similar deadlock as seen recently in the United States. This is a worst case scenario but it is a possibility as it is not protected against.

 

  1.      The vote of no confidence could also be misused by the government of the day to force an early election by a manufactured vote of no confidence. In order to do this, members of the government would abstain or vote against their own party. This previously happened in Germany in 2005 with the governing party abstaining in the vote. This move was controversially accepted by Germany’s constitutional court. Without a constitutional court the decision in the UK could be placed on the Speaker or possibly be allowed to happen with no convention to stop it. This shows a flaw with fixed-term parliaments that could lead to constitutional crisis.

 

  1.      The arguments provided above show there are good reasons to change back to the original convention. The fixed-term parliament means fewer opportunities for the public to have their say with the additional problems of possible constitutional crisis and political deadlock. The Fixed-term Parliament Act is due to be reviewed in 2020 and this submission suggests that this would be a good time to enact a constitutional code with the entrenching of dissolution in the hands of the Prime Minister.

 

Conclusion.

 

  1.      This submission has argued for a codified constitution but has stopped short of a full written constitution. The benefits of the old system like flexibility and political primacy should be kept but the clarity provided by a constitutional code will benefit the public as will certain acts being entrenched which will provide the opportunity for greater constitutional debate. In specific areas like the parliamentary term this submission believes that an option that gives the public more of a say and has less constitutional risk should be part of a constitutional code. The main beneficiaries of this code will be the public and it will also allow greater debate for constitutional reform. These are the overriding reason why it should be endorsed.

18 December 2014

 

 

References

 

 

BBC. (2007), Petition quip backfires on Brown. Available at http://news.bbc.co.uk/1/hi/uk_politics/7039962.stm (accessed 19/11/14).

 

ComRes. (2009), BBC Daily Politics Expenses Poll. Available at http://comres.co.uk/poll/399/bbc-daily-politics-expenses-poll.htm (accessed 26/11/14).

 

Hansard. (2008), Audit of Political Engagement 5. London: Hansard Society.

 

House of Commons Information Office. (2010), Parliamentary Elections. Available at http://www.parliament.uk/documents/commons-information-office/m07.pdf (accessed 26/11/14).

 

Ipsos MORI. (2014), Ipsos MORI January Political Monitor. Available at https://www.ipsos-mori.com/Assets/Docs/Polls/PolMonJan2014_topline.PDF (accessed 26/11/14).

 

Legislation.gov. (1911), Parliament Act 1911. Available at http://www.legislation.gov.uk/ukpga/Geo5/1-2/13/contents (accessed 26/11/14).

 

Legislation.gov. (2011), Fixed-term Parliaments Act 2011. Available at http://www.legislation.gov.uk/ukpga/2011/14/contents/enacted (accessed 26/11/14).

 

Legislation.gov. (2013), Succession to the Crown Act 2013. Available at http://www.legislation.gov.uk/ukpga/2013/20/pdfs/ukpga_20130020_en.pdf (accessed 26/11/14).

 

Lijphard, A. (1999), Patterns of Democracy. London: Yale University Press.

 

New Zealand Legislation. (2014), Electoral Act 1993. Available at http://www.legislation.govt.nz/act/public/1993/0087/latest/DLM307519.html (accessed 26/11/14).

 

Political and Constitutional Reform Committee. (2014), A New Magna Carta? London: The Stationary Office Ltd.

 

Talbot, C. (2013), Budget 2015 could see a government shutdown in the UK. Available at http://theconversation.com/budget-2015-could-see-a-government-shutdown-in-the-uk-19634 (accessed 20/11/14).

 

Wheeler, B. (2014), How fixed-term Parliaments have changed politics. Available at http://www.bbc.co.uk/news/uk-politics-25445868 (accessed 19/11/14).