Scottish independence: Time for a UK constitution

Britain has gloried in being the world’s great exception—for too long?
April 23, 2014

Sir James Thornhill’s “Ceiling of the Painted Hall” at Greenwich (1707-14) celebrating the Protestant succession of English monarchs

© Photononstop/SuperStock

The Scottish government will soon issue a draft independence bill, and it will include an interim written constitution. If Scotland becomes independent, this constitution will be modified, amplified and ultimately ratified by a formal convention in 2016. In a sense, the exact provisions of this document—if it materialises—will be of less immediate significance than the fact of its existence. It would signal Scotland’s difference from the rest of the UK, which lacks a written constitution—and that is, of course, precisely the intention.

The relentless proliferation of written constitutions has been one of the most striking developments in the history of the modern world. The last third of the 18th century witnessed at least two major alterations in the ordering of human society. The first was a quickening of the pace of industrial production and knowledge. The second was a wave of revolutions in the Thirteen Colonies, France, Haiti and elsewhere, which—among other things—helped give rise to substantially novel and widely influential constitutiuons.

In 1786, no country on the face of the globe possessed a single, legal document that it explicitly styled a constitution. But by 1820, and in the wake of the American and French Revolutions, continental Europe alone had generated at least 50 written constitutions. Between 1820 and 1850, over 80 more were drafted, many of them in Latin America.

In the second half of the 19th century, written constitutions spread to some non-western polities, such as Japan; and by the end of the 20th century, these instruments had become almost universal. In 1991, some 170 written constitutions were in existence, of which about 150 had been drafted or revised since 1950.

With only one marked and major exception, no polity has achieved what passes for full democracy without also generating some kind of written constitution. That exception is, of course, the UK, which, since the 1650s, has never possessed a codified constitution. This absence has often worked to reinforce assertions of British distinctiveness. Whereas a growing number of states in every continent have, since the 1780s, employed written constitutions to help invent and publicise an idea of themselves, in the case of the UK, it has been the lack of a written constitution that has frequently been invoked to distinguish the country from others, and as a way of buttressing, both legally and rhetorically, the political and territorial integrity of the British state.

Yet British responses to notions of a written constitution have been more complex, and not as straightforwardly hostile, as this familiar story suggests. To be sure, as constitutions proliferated in the last two centuries, there were large numbers of Britons who dismissed them as inherently impractical and unacceptable devices. Such opposition partly reflected the influence of the “common law,” with its emphasis on the slow accretion of precedents and customs. But scepticism also had much older roots. There were classical and biblical precedents for the idea that unwritten, innate laws were superior to written laws. Christ’s message, St Paul tells the Corinthians, is “written not with ink, but with the spirit of the living God, not on tablets of stone but on tablets of human hearts.”

British and Irish defenders of an unwritten constitution sometimes made similar, quasi-mystical claims. Edmund Burke did so in a speech in parliament in 1791, when he suggested that there was no need to translate the Magna Carta from the original Latin because Britons instinctively understood it; it was in their hearts. James Bryce, a brilliant Scots-Irish academic, politician and jurist, also made semi-mystical claims about Britain’s constitutional settlement in an influential book published in 1905. He suggested that, while the British constitution could not “be expressed in the stiff phrases of a code,” a “sense” of its content naturally evolved among those operating it. “This kind of constitution lives by what is called its spirit,” Bryce insisted. “The letter killeth, but the spirit giveth life,” again, a quotation from Corinthians.

Resistance to the new constitutions was also prompted by the fact that their two most conspicuous early exponents were both polities with which Britain went bloodily to war: revolutionary America and revolutionary France. Considerable efforts were devoted during both conflicts to representing the new devices as being themselves alien and unsuited to Britain. One manifestation of this was the growing use of the phrase “paper constitution” to denounce constitutions of the US and even more the French variety. Apparently coined in the early 1780s, “paper constitution” came to be deployed in British parliamentary speeches, newspapers and books, almost invariably in a negative manner, until at least the 1970s. Paper constitutions were like paper money, remarked the Victorian historian and politician, Lord Macaulay: trashy substitutes for real gold.

Even when the conclusion of the American Civil War in 1865 demonstrated that a major power possessed of a written constitution could remain formidable and united, expressions of scepticism persisted, and not just among conservatives. Far from being manifestations of the popular will and shields against undue power, some critics contended, written constitutions were normally the work of small elites—intellectuals, lawyers, unelected judges, career politicians—and, once in existence, might be difficult for the generality of a country’s people to amend. “The powers of the supreme democratic legislature [of the United Kingdom] are limited by no paper constitution,” boasted a Scottish Liberal journalist in 1884. Since the Westminster parliament was ultimately dependent only on “the voice of the people,” he went on, it was free and obliged to modify Britain’s domestic workings whenever the needs and aspirations of this fast changing society demanded it. Britain’s unwritten—and therefore plastic constitution, so this kind of argument went, was part of what made it a modern and adaptable state. That view had some merit then—and still does.

Yet, for all this, British responses to written constitutions have been neither uniform nor static. In part, this has been due to a spread of information. Made up of words, and easily translated into any written language, the new constitutions crossed borders and oceans very easily by way of print, which was a prime reason why they proliferated so spectacularly. Given the precocious breadth of Britain’s print networks, its inhabitants were in a privileged position to acquire information about these political innovations from very early on. Just five weeks after the first printed version of the US federal constitution was released on 17th September 1787, for instance, extracts from it were already circulating in most English and Scottish newspapers. Subsequent written constitutions from different countries and continents also almost invariably received British press coverage and discussion. When the Liberal Prime Minister William Gladstone formulated his “home rule” bills for Ireland in the 1880s and 1890s, he drew not only on federal ideas derived from the US constitution, but also on provisions in the Canadian and Austrian constitutions.

Second, while assertions of Westminster’s sovereignty certainly became increasingly strident, there remained for a long time no consensus even among the elite over exactly what this implied. One eminent early 20th-century Oxford jurist remarked that, as late as the 1880s, educated men in Britain were still “slow to admit… that parliament… has constitutionally a right to make any new law it pleases, to repeal any law, or to change or abolish any law.”

Third, Britain possessed its own versions of a kind of written constitutionalism. There was a long tradition of domestic and colonial charters, and there were iconic constitutional texts such as the Bill of Rights, Habeas Corpus Act and the Act of Union with Scotland of 1707, the preamble of which proclaimed it—optimistically—as being “forever after” unalterable, even by Westminster.

Most of all, there was the Magna Carta, the charter sealed by King John at Runnymede in 1215 which required the sovereign to guarantee certain (limited) liberties of the “Freemen of our Realm.” The Magna Carta, wrote one Victorian journalist, was a “sort of written constitution… nothing more than the verbal expression of the most urgent political wants of the age.” Such interpretations seem to have allowed some Britons to view the new written constitutions not as suspect, foreign paper innovations, but rather as younger sister texts to Britain’s own constitutional canon. Well into the 19th century, books were issued on both sides of the Atlantic combining, within the same set of covers, the texts of the US federal constitution, various continental European constitutions and the text of the Magna Carta, as though these were somehow analogous documents.

The Magna Carta has historically been compared to written constitutions which came much later

It is therefore misleading to assume that Britons in the past thought only and unvaryingly in terms of an “unwritten constitution.” Indeed, before the 1860s, the phrase would have appeared to some as inappropriate and even incomprehensible. It was only from the 1870s that it steadily became more common at Westminster and in the press. Like much else in the UK, the subsequent more explicit and celebratory cult of Britain’s “unwritten” constitution was something of a late Victorian-invented tradition.

Fourth, there was a growing belief that Britain should write constitutions for its empire. Mounting anxiety from the later 19th century about the security of Britain’s global primacy increasingly gave rise to arguments that it should itself adopt a more proactive, tutelary role in shaping constitutions elsewhere. One reason why Walter Bagehot wrote The English Constitution, first published as a book in 1867, was in order to make the claim that there were elements of the political system here that were not sui generis, but might instead be profitably and easily emulated elsewhere. Politicians and polemicists were increasingly aware that great competing powers, especially the USA and a newly-united Germany, were using their respective written constitutions as convenient advertisements to the world of their respective governmental systems and ideals, and that Britain—with no such single text at its disposal—needed to find its own ways to compete.

Britain did in fact increasingly influence the constitutional systems of many other countries, in large part—though never entirely—because of the scale of its empire. Because so many of the constitutions that exist now are the result of de-colonisation and struggles for self-determination, there is a tendency to view these texts as invariably linked to nation-building and the promotion of democracy. But nationalism and democracy have been only a part of the story. From the late 18th century onwards, written constitutions also served as organising tools for different kinds of overseas and overland empires. Napoleon Bonaparte, for instance, repeatedly used written constitutions to organise and hold together France’s expanding empire in continental Europe (it had conquered territory in Italy, Holland and Spain); while the most extensively ratified constitution in world history was that promulgated by Joseph Stalin in 1936, which was ratified by over 50m people, and designed in part to cement together and burnish the Soviet empire.

The British, too, always recognised that written constitutions might possess imperial uses. The rate at which constitutions were written by British state actors for different parts of the empire (and occasionally for other territories) quickened from the 1780s, increased sharply after 1840, and reached a climax between the Second World War and the 1970s, when London became increasingly busy drafting constitutions and ultimately bills of rights for British colonies as a prelude to recognising their independence. Already, in 1951, a British lawyer was able to boast that, “there are in all something like 70 separate constitutions in the Commonwealth and most of them were made in Britain.” The scale of British constitution writing for one-time colonies increased even faster after this; though it was never confined only to imperial spaces. In the postwar period, British officials were heavily involved in drafting a new German constitution, and also had a marked impact on constitutional texts and human rights documents in the United Nations and Council of Europe.

In reconciling their own overseas exercises in constitutional design with the celebration of our “unwritten constitution” at home, successive British governments were helped by the fact that many—though not all—of the written constitutions for which they were responsible were colonial. As such, these almost invariably contained a focus on the British monarch of the day, and could therefore be distinguished from the explicitly transformative, often republican written constitutions of which London tended to be critical. Although sometimes more democratic than might be imagined, British colonial constitutions also tended to be studiously pragmatic in style and format. High-flown language was abhorred and so, until the 1960s, were bills of rights for colonial subjects. This latter omission was partly prompted by imperial self-interest, but, as a British official recorded in the 1960s, bills of rights were also viewed as “a feature of the constitutions of continental and other countries.” As this suggests, British officials could be very sensitive to accusations that they were in fact manufacturing their own “paper constitutions.” It may be no accident that most British colonial constitutions were inscribed not on paper, but on vellum and parchment, traditional materials that were also organic, made out of goat, calf or sheepskin.

Some argued even more bluntly that it was not inconsistent for Britain to write constitutions for others even though it lacked one itself. On the contrary, they said, this was a demonstration of the country’s political maturity and confident power. Britain was peculiarly equipped to aid those striving countries which needed written constitututions—in part because it required no such aids and contrivances itself. “We in Britain have no constitution of our own,” a British politician told an audience in Malta in the 1960s, after signing off on yet another colonial constitution. “But we have quite a lot of experience of writing constitutions for other people.” The degree to which countries and organisations across the world wanted, or were obliged to allow London to draft constitutions on their behalf, only confirmed, according to this view of things, how privileged and satisfactory the British were in their existing uncodified arrangements at home.

Such attitudes still occasionally crop up among officials in the Foreign and Commonwealth Office, in those marble-walled corridors from which Britain ran the empire. Yet, in recent years, more attention in Britain has turned to the domestic front, even though there has not yet been any attempt at drafting a comprehensive new constitutional settlement. A Supreme Court has been created. The 1998 Human Rights Act has—at least for the present—been incorporated into British legal systems. Devolution has been implemented, and will be extended irrespective of the result of the coming Scottish referendum. There have been attempts at further reforms of the House of Lords, calls for a new Bill of Rights, and more. These innovations have many causes: but one underlying reason for them may be the contraction of Britain’s capacity to intervene across the globe in constitutional terms, as in so many other respects. The historic and mutually reinforcing combination of busy constitution-writing abroad, with official resistance to constitutional activism on the domestic front, has largely ceased to operate. Given waning overseas influence, and its own ever larger, more diverse and increasingly undeferential population, Britain’s constitutional innovations in the future are likely to focus ever more upon the home-front.

Towards the end of my recent book, Acts of Union and Disunion, I removed my historian’s hat and listed some constitutional changes and adjustments that it would be useful to consider. I suggested (as many others have done) that it would be desirable to create a new English parliament or assembly, perhaps situated in the north so as to balance somewhat the growing concentration of power in the south. I argued that, if England did join Northern Ireland, Scotland and Wales in gaining its own parliament, then the UK might usefully work out a more explicitly federal system. The Westminster parliament might remain as an arena for determining major cross-border issues such as foreign policy, defence, macro-economic strategy and climate control, but a great deal of decision making and taxation could be devolved to the four national parliaments and to local and regional authorities. And I proposed that a more federal UK would likely require a written constitution, or at least some new charter of confederation.

I have no great optimism that any of these measures will be implemented. Yet the case for more sustained and well-thought out constitutional change has been strengthening, and not just because of the shifting relations between different parts of the UK. Back in 1952, a British government official felt able to loftily inform a UN committee that, while other nations might require human rights and freedoms to be set down in sacred texts, in the UK “acceptance of the principle of liberty” was so ingrained that “the existence of these rights is taken for granted.” Some of Edward Snowden’s recent revelations about electronic surveillance carried out by the British security services only serve to confirm that such a sturdy reliance on tradition and consensus is simply not sufficient.

There may in any case be no choice in the future but to undertake more serious constitutional revisions. If Scotland secedes, it will be a major shock not just to the territorial integrity of the UK, but also to the reputation and confidence of its political order. Even if the union persists in some form, the degree of further devolution likely to be conceded by Westminster to Scotland will place additional strains on the workings of the UK and its unwritten constitution, and on the degree to which “ordinary people” are able to understand and support both. Whatever ensues, part of the work of constitutional reform and change in the future should be to encourage a more nuanced and accurate awareness of the British rejection—and occasional embrace—of the notion of a written constitution.