Britain Needs A Real Constitution

It’s time to codify—with caution.

September 9th 2022, Great Britain, London: A British flag on the House of Parliament flies at half-mast. (Photo by Christian Charisius/picture alliance via Getty Images).

Transparency is a key feature of liberal democracies. Citizens should know how their institutions function and why power is distributed the way it is. Generally, the workings of fundamental institutions are codified in national constitutions.

The United Kingdom is unusual for having an “uncodified” constitution. It does not exist in a single document, but is rather a combination of hundreds of years of convention, maxims, and laws with innumerable different sources.

This has numerous drawbacks. Many of the conventions that keep our democracy ticking are simply unknown to most of the British public. Meanwhile, the flaws in our current ad-hoc arrangements have become glaring over the past few years, with the convulsions over Brexit and now the death of Queen Elizabeth II.

It is high time for the UK to adopt a codified constitution. But what, exactly, needs codifying?

One priority should be to codify the basic rules governing the British monarchy. We just witnessed the accession of a new head of state, Charles III, who became King immediately upon the death of Elizabeth. Like most people, I had never previously given much thought to why that was the case. Why did the succession take place instantly, rather than, say, upon Charles’s coronation?

The answer, it turns out, is the common law principle of Rex nunquam moritur, meaning “the king never dies.” Being common law, this principle is not written down in any single place. Instead, it is listed in numerous 19th century compilations of legal maxims and principles, which give an air of mystique and authority to various conventions that emerged over time and continue to be cited today. 

But the origins of Rex nunquam moritur are much older. In his 1957 book The King’s Two Bodies, historian Ernst Kantorowicz noted that the practice of instant hereditary succession came about partially “for practical reasons” following the death of Henry III in the 1270s, when his son, Edward, was abroad, and thus was unable to be coronated in a timely fashion. Kantorowicz writes:

Not by any special act or decree…England in 1272 recognized that the succession to the throne was the birthright of the eldest son.…Henceforth, the king’s true legitimation was dynastical, independent of approval or consecration of the Church and independent also of election by the people.” 

It took me some digging, then, to discover how and why executive power in the United Kingdom is transferred the way it is—information that in most democratic countries would have been trivially easy to come by.

For various practical reasons that I can’t get into here, I am not advocating abolishing the monarchy. But if Britain is to keep the monarchy, we ought to at least know precisely how it is supposed to function. What was previously merely convention, handed down through the mists of time, would become a positive arrangement consensually entered into.

What’s more, there are areas of real concern about the exact role and privileges of the monarch. Last year, it emerged that Elizabeth II had made use of an arcane convention known as “Queen’s consent,” which allows the monarch to pre-screen any proposed legislation impacting the Crown. The Queen used this power to successfully lobby for changes to legislation that would have forced her to disclose her wealth. By enforcing a complete separation between the monarchy and the lawmaking duties of Parliament, a codified constitution could put an end to shadowy practices like Queen’s consent.

Another priority for a codified constitution should be dealing with the constitutional weaknesses exposed by our recent prime minister, Boris Johnson. Johnson’s tenure was characterized by his willingness to disregard precedent, procedure, and even the law. One such occasion came in July this year, when Johnson publicly contemplated calling an early general election to seek a fresh mandate for the Conservative Party and save his own skin, at a time when even his Conservative colleagues in Parliament wanted him to resign. 

There was much debate about whether the Queen would be within her rights to refuse Johnson’s request, on account of a convention known as the “Lascelles principles”—three criteria by which a monarch can refuse to grant an early election, devised by the private secretary to King George VI in 1950, and published in a letter to The Times newspaper (sometimes the British system is truly a parody of itself.)

In the end, Johnson didn’t call an election, and Britain avoided some nasty constitutional wrangling. But the episode drew attention to the fact that there are simpler and more democratic ways to call elections. A codified constitution could explicitly mandate that a general election must be held every five years, unless Parliament votes to hold one earlier.

But it was in 2019—during the heat of the debate over Brexit—that Johnson truly exposed the weakness in Britain’s wooly constitution. That was the year he attempted to close down Parliament (an act called prorogation) for five weeks in order to prevent it from scrutinizing the terms of the deal he had negotiated to exit the European Union. 

The relevant rules were somewhat obscure, so the British Supreme Court was called to judge the legality of Johnson’s actions. After first acknowledging that Britain’s lack of codified laws governing prorogation made it a particularly thorny issue, the justices ultimately concluded that the move was illegal: “The first question…is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account. The answer is that of course it did.”

A full-blown crisis was averted, when, upon the judges’ instruction, Johnson reluctantly reversed course and Parliament reopened. But precisely because of our constitution’s nebulous nature, he had dared to run roughshod over lawmakers until he was forced to stop. A codified constitution would lay down authoritative rules mandating that parliamentary sessions last for fixed lengths, ensuring that they can’t be ended on the whim of an embattled prime minister.

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The turmoil of recent years has exposed the creaky foundations of the British system. It seems the most basic aspects of the UK’s constitution are located in a set of rules and conventions that certainly exist, but which lack the transparency and watertight enforceability that would be expected from a functioning democracy. Rex nunquam moritur, the Lascelles Principles and parliamentary sovereignty are, no doubt, only a few of many examples.

A codified constitution would help fix these problems. It would provide much-needed clarity about how the basic facets of British democracy function: the precise role of the monarch; the principle of succession; the role of Parliament; the rules for its suspension. This would strengthen our democracy by imposing a set of rational standards by which to judge the functioning of our institutions.

Of course, it would be tempting to go further, and draft a constitution that grants various positive rights. This should be avoided. The United Kingdom has a history of granting rights legislatively through democratic processes. We have avoided the judicial lawmaking that is a feature of the American system. Reopening the debate about gay marriage, for example, would be an unnecessary self-inflicted wound.

Instead, what Britain needs is a skeletal constitution: what might be termed (to steal a phrase from libertarianism) a “night-watchman constitution.” A night-watchman constitution would reduce the scope for future unscrupulous prime ministers to undermine Parliament. It would, perhaps, mitigate against Charles III’s relative unpopularity, giving the British people certainty about the limited role of an unelected head of state in their modern liberal democracy.

In the process, it might also be a source of national renewal. Modern Britain—like much of the West—spends its time shuffling between crises, divided against itself, unable to agree on fundamental values. The very act of drawing up a constitution would help us think seriously about democracy again, and bring the public together in a positive act of self-creation. In these uncertain times, that shouldn’t be underestimated.

Luke Hallam is an associate editor at Persuasion.

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