Compared to other countries, the UK constitution is unusual. There is no single written document containing the fundamental rules with which all political actors and institutions must comply. Instead, the UK constitution is a complex web of institutions, processes and responsibilities, understood through precedent as much as through its various documents and statutes. Its central constitutional principle is parliamentary sovereignty – as 19th century constitutional theorist A.V. Dicey put it, it is Parliament’s “right to make or unmake any law”, giving a government with a parliamentary majority significant discretion.
Despite the absence of legal constraints, for centuries the UK has been able to rely on unwritten rules – norms and constitutional conventions – to place limits on the exercise of power within the political system and maintain a strong democratic culture. Enforcement is political, rather than legal – but can be just as compelling.
Nonetheless, the effective functioning of the constitutional system is contingent on two conditions: firstly, that constitutional actors have a shared understanding of the fundamental principles that underpin public life, and secondly that they continue to feel bound by them. As recent events have shown, it is not clear that those continue to be met.
Increasingly, constitutional actors have shown a willingness to push the limits of constitutional conventions or to break them altogether. The Speaker of the House of Commons was willing to bend Parliamentary rules to facilitate votes on Brexit. The UK government was one step away from legislating to break international law over a dispute with the EU over the Northern Ireland Protocol. The UK Parliament passed the UK Internal Market Bill, which cut across devolved areas, despite the Scottish and Welsh Parliaments and the Northern Ireland Assembly all objecting to it and despite the convention that it would “not normally” do so without their consent.
The last five years have also exposed different understandings about how the UK constitution ought to operate. The Brexit process saw high-profile clashes between the different institutions of state – raising questions about their appropriate role and responsibilities. For some, Parliament’s opposition to Theresa May’s Brexit deal was a legitimate demonstration of representative democracy, for others it was an obstruction to the government’s ability to deliver on the “will of the people”. High profile interventions from the Supreme Court over Article 50 and the prorogation of Parliament were both hailed as examples of the effectiveness of checks and balances within the UK constitution, and condemned instances of judicial overreach.
Brexit has also placed the UK’s territorial constitution under severe strain. The EU referendum – in which Scotland and Northern Ireland voted to remain – demonstrated the difficulty of reconciling the interests of the UK as a whole and of the constituent parts. Relationships between the four governments of the UK are at a low point, and disagreements about the basic terms of which they should relate – as equal partners, or on a hierarchical basis – continue to be a cause of tension.
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Just as worrying is the British public’s increasing loss of trust in political institutions. While this trend is nothing new, recent scandals have pitted the public against the government when it comes to judgements around the appropriate behavior of our elected representatives. The government was forced to U-turn following outrage at the failure to suspend Conversative MP, Owen Paterson, for inappropriate lobbying activity, and the level of public anger over reports of Downing Street parties has not yet been matched by the level of sanctions, nor any reform to the systems designed to govern standards in public life. Failure to tackle these problems risks further undermining the legitimacy of the governance of the UK
Some friction within the constitution can be healthy, and differing views on how it should operate can result in productive democratic debate. But this debate has become increasingly polarised – making it more difficult to establish the common ground on which the rules underpinning our political system can find stability.
Perhaps the only thing everyone can agree on is that the constitution is in need of reform. It is for this reason that the Institute for Government and the Bennett Institute at the University of Cambridge have launched the Review of the UK Constitution. The review will assess the current state of the UK constitution – probing how well some of its core institutions and democratic processes are performing – and propose practical, innovative and robust ideas for reform. Our first paper, published today, explores some of the existing problems, and over the next 18 months we will publish further papers which will make recommendations to address them.
This is an opportunity to reinvigorate UK democracy, restore trust in the political system and improve the way that government works. If that opportunity is not taken, then there is a real risk that the next 50 years end up being characterised by continuing constitutional turmoil.
Jess Sargeant is a senior researcher at the Institute for Government