Future Local Part 3: A written constitution
A call for a new constitutional settlement
In the third part of the LGiU's series on the future of local government after the EU referendum, Ingrid Koehler argues that the United Kingdom needs a new constitutional settlement and that it must be written down. Other essays in this series may be found at Future Local: where next for devolution?
Everything is different now. A generation of people have grown up knowing nothing but membership of the European Union. It has meant being citizens of something bigger than a nation and willingly or not being part of the European project. That's over now, sooner or later. With the passing of the referendum to leave the European Union, we have a chance to redefine the concept of citizenship of the United Kingdom and where and how we have a voice in that governance.
There are two areas which need to be addressed urgently and coherently in the wake of this monumental change. The first is rights and freedoms for individuals. The second is a reassertion of local powers and decision-making. Beyond statute, we need a new constitutional settlement to underscore the expectations of our ancient liberties.
Leaving the EU will no doubt mean the dismantling of both European conventions and legislation. Principle constitutional elements such as the Human Rights Act 1998 which reflects the European Convention on Human Rights have been woven into the unwritten constitution of the United Kingdom. These may be abolished in part or in full and the Human Rights Act is a particular target. There are genuine (and sometimes worrying) inconsistencies in the approach and prioritisation of rights between European and English Common law. But we must reaffirm our expectations of individual rights and freedoms consistent with our historical expectations of ancient liberties in a new Bill of Rights.
Some have suggested that the Leave result is a reassertion of the primacy and sovereignty of Parliament. Perhaps it is. How this is more likely to play out is the assertion of the power of the Government of the day. From Margaret Thatcher’s power grab from local government to Tony Blair’s sweeping and sudden constitutional reform of the House of Lords, we have seen increasing encroachment of executive styles of leadership. This has resulted in abrupt shifts to the unwritten constitution which had previously been protected only by reverence of tradition and the voices of those steeped in the arcane and inaccessible mix of politics and history.
As we face a time of change and tumult, we need a clearer and more accessible set of principles as we forge a new path in this nation. The United Kingdom faces existential challenges from outside and from within. It’s time for a written constitution for the United Kingdoms of Great Britain and Northern Ireland. And importantly, we need a constitution which sets out a strong and unassailable role for local government to give a real voice and a lever of power to the people.
A multitude of discontents
We have been assured that Brexit means Brexit. However, there is great dissatisfaction with the outcome in key parts of the country. London, Scotland and Northern Ireland all voted predominantly to remain. Northern Ireland and Scotland are already forging their own separate path from with less of that UK parliamentary primacy. There have long been rumblings from London about wanting more autonomy and the freedom to set a different agenda from Westminster even within and around Westminster.
Brexiteers might argue that protests and calls for a rerun of the referendum is poor sportsmanship at best and undemocratic at worst. However the referendum results challenged the very notion of who individuals are. Many of the people most shocked and hurt by the results felt that part of their core identity was European. Overnight this was stripped away and a new identity as citizens of this nation must be forged. A written constitution which sets out the rights and obligations of citizens might do much to create a new identity. Sub-national or regional government in the context of Europe was perhaps part of the complex identities of places like Northern Ireland or London and part of the certainty of nationalistic politics in Scotland. A written constitution on the rights and privileges of these governing bodies might also create a stronger union as it has in the United States. We cannot leave it there. A new constitution must also reassert the rights of all sub-national bodies in England, while placing only enough constraints on these bodies as to protect individual liberties and to guarantee access to the privileges of citizenship.
Remain voters and regions are not the only party suffering discontent. Some people voted to leave because they felt that the European Union was inconsistent with our notions of democracy and to return sovereignty to the United Kingdom. But perhaps many others voted from a place of justified malaise and a desire to show just how disconnected they felt from not just Brussels but Westminster, too. A Leave vote for some was the chance to snatch back control of individual and community destiny. Restoration of supreme sovereignty to Parliament is unlikely to make Westminster feel any closer to places like Boston in Lincolnshire or Great Yarmouth in Norfolk. We need a clear constitutional settlement which not only enumerates individual rights, but also gives clear and consistent powers to local government to support local self-governance and self-determination.
An American perspective
I am an American. So it may be easy to dismiss my arguments as typically American and Constitution crazy. But I am an American who has lived twenty years in the United Kingdom and who has made it both a physical and spiritual home.
I come from a country which has wrapped its written constitution into a sacred, almost mystical place. That has had its benefits and its drawbacks: gay marriage and interracial marriage, civil rights, voting rights and the right to bear arms have all been protected or promoted by appealing to the US Constitution and its various amendments. Like the British legal approach we inherited, our system depends on precedent and argument, but also on the document itself. Whether the average person on the average American street can cite the various articles and amendments of the constitution does not matter. We all know that it exists and it is there to protect us from overweening power of the State. It protects us because it is hard to change. It can be changed in foolish ways (to wit the 18th Amendment which brought in Prohibition) and it can be hard to change to bring in sensible amendment (to wit the failure to provide equal Constitutional protection under the law based on sex). But regardless, it protects us against the whim of legislature, executive and judiciary.
A constitution is not a magic barrier against injustice or the consolidation of powers. It is merely a check against these inclinations, but an important one. Because the US Constitution is a document and is accessible, it becomes a clear focus for asserting their rights and freedoms and prevents encroachment by central powers. It protects not only individuals, but also their local decision making bodies.
Perhaps the most important part of the US Constitution is in the clear expression of where the power lies:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people."
Although many Americans feel that there has been a creeping Federalism, the states and local governments in the US maintain powers and controls that would be unthinkable here. Local government in the US is not some sort of utopian dream, but strong mayors like Cory Brooker in Newark, New Jersey, Martin O'Malley in Baltimore, Maryland, or Kathy Whitemire in Houston, Texas have shown that they can get things done without significant interference from central government. Local governments in the US have clarity about the possibility of power and if there is interference, there is clarity about what kind and where it may take effect because of both state and national constitutions. We need this same certainty for devolved national and local governments in the United Kingdom.
Devolution without a constitution?
The UK is one of the most centralised states in the West. The current Government should be applauded for its efforts on devolution, the Manchester deal was truly revolutionary and a welcome step back toward local self-determination and giving cities a hand on the levers to power their own growth. Since then, however, devolution has been slow and murky and seemingly designed to promote border squabbles and power grabs. It would have been far better to hand markers to a panel of geography post-grads and let them draw the boundaries and colour in the lines of newly devolved areas or even make a return to the old borders of the Saxon heptarchy. This would not have been much more arbitrary than previous local government re-organisation efforts or even some currently suggested devolution partners . Without the need to negotiate who is in and who is out of a devolved 'combined' local authority area, the people and the politicians can focus instead on the business of prosperity and building communities which are strong and resilient.
Not only have local politicians had to argue about boundaries, they have had to argue about powers, too. It has also not been clear through the current devolution deals what has been possible for councils as combined authorities to claim and what is definitely out of bounds. Transport? Maybe. Health spending? Probably not. Skills? Likely. This is not the way to organise a clear restoration of power from remote authorities to the people who know their areas best.
What has always been needed is a clear constitutional settlement for devolving power with a clear division between what should be a local matter and what should be a national matter. Where those lines should be drawn is up for debate, but whatever can be local should be local. Beyond defence, and 'special case' policing (and possibly 'special case' health), I would argue that almost everything else should be locally administered and often locally decided for a restoration of our liberties and rights. However, that doesn’t mean that all decisions are left locally, for example a regulatory framework including civil and criminal law can and should be consistent across the nation and there will always be an essential role for Parliament. However, we already accommodate more than one justice system in the United Kingdom, so consistent does not mean uniform.
Just as we need consistency of law across the nation, we need consistency of powers, too. This doesn’t mean that every devolved place across the country needs a mayor or that every council needs a leader and cabinet model of governance. But it certainly does mean that if there is local control of transport across one city region, there should be local control of transport everywhere. If there are powers asserted in one local area that make it easier to have true integration between health and social care, then these same powers should be everywhere. And these powers must be well understood and both citizens and local institutions must have confidence that they will not be revoked.
The only way to do this in a way that makes it clear that powers are firm and lasting and not subject to the whim of an unchecked Parliamentary party acting as an executive. That requires a written constitution.
A very British caveat
When discussing the idea of a new written Constitution for the United Kingdom, an English man told me that a written constitution was unnecessary since we had been served very well by an unwritten one for 800 years. I noted that it had been 800 years since the sealing of the Magna Carta – a document. As influential and important as that document has been (as well as the 1689 Bill of Rights), in fact the unwritten constitution reaches back much further and has its derivations in the local understanding of justice and custom. English Common Law is called common because it derives from those commonalities of law and justice and sense across England in the days when Norman kings established royal courts. Magna Carta gives focus to those common rights because it is a document and while Monarchs and Parliaments have tried to diminish and dismiss it, it is still venerated as a cornerstone of our democracies.
A written portion of a United Kingdom Constitution need not and must not undermine ancient and evolved principles. Instead we need a document that unassailably re-asserts those principles for a modern age and becomes an essential part of the wider unwritten constitution. A new written settlement need not cover all matters, but must cover those areas outlined above: the protection of individual rights and freedoms and the re-assertion of decision-making by local people.
Everything is different now and we have a chance to make it better. Let us call for a new constitutional settlement that reclaims our inherited liberties and supports communities to grow and prosper with certainty and democratically for 800 years more.