Don't knock the British constitution. It always moves on, and allows us to do the sameby Adam Tomkins / October 9, 2017 / Leave a comment
Coalition, majority and then minority government. A secessionist near-miss in Scotland. Withdrawal from the European Union. A sudden change of prime minister. Suspension of home rule in Northern Ireland. Threats to national security and the murder of a member of parliament. These last three years have thrown a lot at the old British constitution. We live in a time not merely of political tumult, but of extraordinary constitutional strain. How lucky we Brits are, then, to live under a constitution that can take it.
Watching events unfold in Catalonia, one can immediately see that not all European citizens are so fortunate. On 1st October, the Spanish government sent in riot police, who violently disrupted voting in what Spain’s constitutional court insists was an illegal independence referendum. The sense of panic was only intensified by the sight of King Felipe VI being drawn into the political fray by making a national television address that pronounced the referendum as unlawful. It is both dangerous and foolish for a constitutional monarch to speak out on a divisive question like this; it is unthinkable that Queen Elizabeth II would ever be so crass.
But could a similar clash between the state and the people in part of the country happen here? Well, for three decades it did, of course, if we’re thinking of the UK as a whole. And even now no one is quite as confident as they would like to be that the Troubles will not return to the streets of Belfast. Great Britain, by contrast, is lucky to be a place where politics may be frenzied without spilling over into police brutality or violent insurrection. That the BBC’s Laura Kuenssberg and the anti-Brexit campaigner Gina Miller have felt the need (or have been advised) to employ bodyguards is deeply concerning. But, unlike voters in Barcelona, the threats they face do not come from the state.
The Scottish independence referendum campaign stirred passions like no other political argument I have ever seen. It was an intense two-year campaign and a ballot in which nearly 90 per cent of the electorate cast a vote. There was plenty of shouting and more flag-waving than at a royal wedding. But other than an egg being thrown at former Labour MP Jim Murphy and a few “No Thanks” posters being torn down by Better Together’s wilder opponents, not a punch was thrown and not a truncheon wielded.
Wise heads in Madrid know that Spain cannot hold out against the Catalan separatists indefinitely. For all the blunt nationalism of the constitutional court’s unbending case law, at some point a political accommodation is going to have to be reached. Canada did not want Quebec to leave but accepted the legitimacy of the 1980 and 1995 secession referendums anyway. The same was true of David Cameron’s government when it came to Scotland in 2014. You hold the country together by winning the argument, not by pointing a gun at the electorate’s head. If you’re not even prepared to take part in the argument—even worse if you use the strong arm of the law to try to ensure that no one takes part in it—you lose.
The constitutional lesson is that it is not rigidity but flexibility that keeps the show on the road. In some but not all contexts, the Americans know this as well as the British. The United States’s Constitution has been in force since 1783 but the way it shapes American politics now would be unrecognisable to the founding fathers, even on such fundamental matters as the relationship of the federal government to the states. But the US Constitution can also get stuck—just think of how the right to bear arms is currently interpreted. America desperately needs new gun controls, but unbending constitutional rigidity here gets in the way.
It is the more comprehensive adaptability of the British constitution that marks it out. My long fascination with the British constitution started in law school in the 1980s. We were then at the beginning of the gradual and remarkably smooth absorption of the norms of European law into the fabric of the common law constitution. It was the genius of its giants—the late Tom Bingham par excellence—to weave together strands of common law precedent with new European abstractions, crafting a new legal order at once distinctively British and yet at home in the European family. Now, as Brexit unfolds, a fresh challenge awaits, and it will be every bit as compelling, to see what is left of the domestic law after one of the principal sources of European influence—the EU—is removed from our jurisdiction.
There are some fantasists, in both main political parties, who fondly imagine that EU withdrawal means we revert directly to the constitution of 1972. But this is deranged. We have moved on. We always move on. And thank the constitutional gods for that, for otherwise it would all come crashing down.