Why the British Constitution is so important to British political history

by Holly Firmin · Published June 8, 2017 · Updated June 8, 2017

When my lecturer recently asked for a show of hands to indicate who had chosen to write on the topic of the British constitution, the lack of enthusiasm for what sounds like quite a technical, and frankly dry, area of British political history was evident. However, the history of the British constitution, and the debates surrounding it, are essential for understanding the contours of modern British politics. Discussions of of ‘British sovereignty’, and the integrity of the ‘British constitution’ have featured heavily in political rhetoric.

The first and most obvious example is the Euroscepticism which, although culminating in the Brexit vote of 2016, has longer-term roots in the preceding decades of British political history. The referendum of 2016 was not the first. In 1975, Harold Wilson suspended the party whip in light of intense division over the issue of Europe, culminating in a 2:1 vote to remain a member of the European Economic Community (EEC) after the country’s initial ascendancy in 1973 under Edward Heath. The slogan of the ‘Vote Leave’ campaign of the 2016 referendum, ‘take control’, demonstrates the extent to which Euroscepticism has rested on ideas about ‘sovereignty’. However, constitutional history provides an insight into the inherently European nature of the British constitution which belies any notion of a distinct and separate history of British politics from European political history.

Andrew Blick’s article for History and Policy challenges the idea that Britain doesn’t have a written constitution, for there are multiple legal documents and conventions, most famously the Magna Carta, which have formed the basis of the British government. The Magna Carta, dating back to the 13th century, was itself a product of Britain’s deep involvement in the European continent. It was written in Latin, was a product of the threat of European invasion and was forged between King John and rebels, between which the Catholic Church of the continent mediated.

The referendums held on membership of the European Community draw on constitutional debates which extend beyond the matter of Britain’s place in the world. Although the suspension of cabinet collectivity appears relatively benign since the 2011 coalition government set a precedent for differing opinions in government, Wilson’s initial 1975 referendum called into question the role and function of the government itself. Refusing to intervene in the campaign until the very last minute, and allowing Labour party members, such as Jenkins and Benn in their BBC Panorama appearance, to ferociously debate the European issue, Harold Wilson brought a whole host of constitutional questions to the fore. Which was the real threat to parliamentary sovereignty: European integration, or ‘people sovereignty’, as exercised through direct referenda? What should be the role of the government when such referenda take place?

The issue of European integration in contemporary politics has also centered around the validity of the prerogative powers of the prime minister. The debate with regards to the ability of the prime minister to trigger Article 50, and thereby consolidate Britain’s decision to leave the European Union, has shone light on the tensions between parliamentary and prime ministerial power. Although Blick has demonstrated the way in which the British constitution has at least informally been based on a series of written documents, the informal, and therefore fluid, nature of the constitution creates generous scope for ‘norms’ and ‘conventions’ to determine the workings of the British government. In January, the Supreme Court ruled that Article 50 could not be triggered without the passing of an Act of Parliament.

The nature of the constitution means that it has been historically unclear where the power to affect significant constitutional change lies. Blick argues that a shift in norms over the course of the late 20th and 21st centuries has seen a consensus develop against the use of prime ministerial prerogative power to introduce significant constitutional changes. Lord Neuberger, president of the Supreme Court, concluded that although the prerogative power of the government has generally allowed it to retain control over the changing of treaties, such a prerogative power must be called into question when it has the ability to affect people’s rights.

Historically, debates about the British constitution have not only called into question the supremacy of the government and prime minister, but have been implicated in party political divisions. The Parliament Act of 1911, which restricted the ability of the House of Lords to veto money bills and restricted vetoes of other bills to a maximum of two years, arguably represented a battle of political wills between the Lords and the Liberal party, eager to implement Lloyd George’s budget. Party politics has also served as a barrier to significant reform, as John Lawrence has identified. Historically, the Conservative Party, fearing the ‘socialist’ Labour party, favored arguments calling for an elected House of Lords as a means to check the ‘socialism’ of the Commons. Conversely, the Labour party in government tended to prefer appointments to the Lords so as to not to undermine its democratic mandate when it was able to achieve one.

New Labour went some way in reconciling the tension between these conflicting party political interests, addressing the idea of composition, rather than function. The 1999 House of Lords Reform Act removed the rights of all but 92 hereditary peers. But such a controversial and fundamental constitutional reform is itself electorally contentious, and many have criticized Blair for missing the opportunity to create an elected Second Chamber with real power to scrutinize the power of government, as detailed in John Lawrence’s assessment of the age-old problem of the ‘second chamber’.

Historiographical debates about the British constitution have also centered around the extent of ‘prime ministerialism’. Anthony Selsdon has argued that, over the course of the 20th century, the cabinet has evolved from being the sole decision-making body to becoming a highly personalized and fluid system, no longer the core body of British government by 1980. Certain areas of policy-making have always been characterised by the subversion of ‘traditional’ cabinet government. The war cabinet of 1939 saw a cabinet of 25 members fall to just nine. Attlee continued with this precedent for the use of smaller decision-making bodies during times of war. He used a small cabinet committee to negotiate the Berlin airlift, GEN 241, whilst GEN 163 was used for smaller discussions of nuclear weapons policy. In contrast, Anthony Eden actively deceived his cabinet during the Suez crisis, whilst the Overseas and Defence (South Atlantic) Committee became Thatcher’s de facto war cabinet during the Falklands conflict.

Thus, whilst Selsdon identifies broad, long term trends, Bogdanor’s identification of an ‘ebb and flow’ of prime ministerial power is throughout the 20th century is perhaps more accurate. Prerogative power affords the prime minister considerable scope to determine the extent to which they use ‘cabinet government’. Both Thatcher and Blair’s premierships were characterised by a creeping bi-laterialism; under Tony Blair’s leadership, no decisions were made in cabinet in 2000, its function instead relegated to a forum for media briefing. But, the ‘ebb and flow’ of prime ministerial power continued; compared to Thatcher and Blair, Major had operated a relatively collegiate style of government, and the cabinet and its ministers at least still continues to occupy an important place in media coverage of the government and public perceptions of it.

Debates about the British constitution therefore not only underlie current political debates, but have been of central importance to British political history. The Euroscepticism which culminated in the 2016 Brexit vote has been inextricably linked with ideas about sovereignty and where exactly ‘power’ lies. Prerogative power and ‘prime ministerialism’ has been perpetually pitted against parliamentary authority, whilst the extent of reform has often been determined by party political interests. Whilst mention of the ‘constitution’ may send yawns rippling through the classroom, it is difficult to understand both the politics of the past and present without reflecting on the meaning and function of the constitution.