Building a constitution: the British experience

John Parry

By John Parry

The word “constitution” dates back at least as far as the Roman orator Cicero who used it in the limited sense of a regulation or ordinance. With the emperor Justinian in a later century it embraced the full body of imperial law, limiting the freedom of action of the subject though not of the sovereign.

A major change occurred in England in 1688 when King James II fled from London and was deemed to have abdicated. The political leaders of the time invited William of Orange to become king on condition that he accepted the provisions of a newly drawn up Declaration of Rights. The following year a “Convention Parliament” was elected to incorporate this Declaration into English law. Now called the Bill of Rights it stated that certain of the monarch’s competences as head of the executive would now require the consent of Parliament.

This arrangement became known as the constitutional settlement and the word “constitution” began to take on its modern meaning. According to Lord Chesterfield writing in the mid-18th century, “England is the only monarchy in the world that properly can be said to have a constitution,” and it intrigued visitors from other European countries such as Voltaire, Montesquieu and Rousseau.

Throughout the 18th century, and as a result of the Bill of Rights, there was a clear shift of executive power towards ministers able to command a parliamentary majority. Yet inherited ideas had not been totally abandoned. William Blackstone, writing at the same time as Chesterfield, expressed the view in his Commentaries on the laws of England “That the king can do no wrong is a necessary and fundamental principle of the English Constitution”. Here the word “constitution” is used more loosely, meaning the totality of the country’s laws and (often unwritten) conventions.

This led De Tocqueville to comment in the following century that England was the only country without a constitution: namely, no single written document or law defining its institutions and their role in the body politic. Nevertheless, constitutional debate has continued throughout the three centuries since the Bill of Rights, resulting in many more adjustments to our system of governance, including greater democratic accountability through extension of the franchise and of the powers of the House of Commons. These were mostly small steps prompted by changing circumstances rather than stages in a pre-determined design.

Many traditionalists in Britain cling to the idea that a constitution will evolve of its own accord, like an organic growth. This is not a bad description of the historical process which saw the demands of reformers being gradually and reluctantly granted by those in power. It at least had the advantage that at each stage the constitutional developments were rooted in the prevailing political culture and in tune with the popular will. Today, as a consequence of certain high-handed actions by recent governments, pressure groups such as Charter 88 are now insisting it is time the United Kingdom was given a written constitution.

Till now the United Kingdom was a centralised union of nations, but the latest round of constitutional adjustments establishing parliamentary assemblies for Wales, Scotland, and Northern Ireland, represent a move towards a quasi-federal structure. Other changes will include the fundamental reform of the House of Lords, and a possible reform of the voting system. Nor must the constitutional implications of European Union membership be forgotten.

The EU is an evolving political union equipped with its own legislature, executive and court of justice. It makes laws which take primacy over the domestic laws of its Member States but it lacks the degree of democratic accountability which its citizens have come to expect in relation to their own regional and national governments. Their own history should lead the British to demand a constitution of the European Union.

When this question was put to Jacques Delors his response was cautious. “The term constitution,” he said, “is inappropriate since it can only apply to a nation. . . What unites sovereign nations are treaties, not a constitution which will make disagreements between Member Countries disappear at a wave of a wand.” (quoted in the newspaper Ouest France, 4.1.1998)

His comment is certainly true of intergovernmental organisations such as the Council of Europe or the UN, which are the present-day successors of the Congress System first introduced in Europe post-1815, but the supranational nature of the European Union places it in a different category.

In one sense the EU already has a written constitution in the shape of its Treaties which most people would claim are difficult to read, obscure, and drawn up by a process beyond their control. The Amsterdam Summit decided on an exercise to simplify and re-codify the Treaties to make them more easily understood. When published this simplified text will only emphasize the byzantine nature the EU’s decision-making procedures. The compromises made necessary by 15 member governments trying to reach a series of often unanimous decisions inevitably result in legislation which is unsatisfactory, clumsy and frequently intrusive. Simplification is not enough.

Yet however much the Treaties are criticised, in practice they have created a new political culture over and above that of the nation state. People now expect the EU to defend their Treaty-based rights even if not respected by their own governments; and, on the world scene, to act for them on matters which are beyond the power of any single member state on its own.

In today’s world, people are ever more aware of how their lives are influenced by forces and decisions beyond their control. Hence the growing support for regional autonomy. Yet regions and countries can exert a greater influence on the course of events working in cooperation with each other than on their own. The European Union offers the political structure for such joint action. But if people are to identify with it, they must also have a hand in shaping it.

In the postwar years European unification by means of Treaties between governments seemed the right way forward. The situation is now different. It is time for our elected representatives-not simply our governments, but our national and European parliamentarians to start the debate on what sort of Europe we want, what its powers should be, and what the limits of those powers should be.

The draft constitution resulting from this debate would include much of what is in the existing Treaties, but in a more rational and definitely a more democratic form. Once drawn up, it should then be subject to approval by referendum, held simultaneously in all member states.

A constitution agreed by the people of Europe, and containing a list of citizens’ rights and duties, would be very different from yet another intergovernmental Treaty. It could win people’s respect and loyalty. This is a big step, and yet in another way not so big. Already we have a body of European law directly affecting our daily lives as citizens. It is time we took control of it.

Above all this would help restore our sense of purpose – some would call it vision – in Europe. It would mean a multicultural Europe which would recognise and respect our different personal, regional and national identities while guaranteeing our rights as European Union citizens: a multi-layered citizenship together with a multi-layered political structure able to meet the challenges of the future.

John Parry is Vice-President of the Union of European Federalists and a member of the Executive Committee of Federal Union. He can be contacted via info@federalunion.org.uk. This paper was given at the Federal Union workshop of the People’s Summit held at the London School of Economics, 6 June 1998. The views expressed in this article are those of the author and not necessarily those of Federal Union.

About the Author