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Column: Britain doesn't have a written constitution. Today isn't the first time that that's led to major problems

Another constitutional crisis took place in Britain over 100 years ago.

Big Ben and Palace of Westminster.
Big Ben and Palace of Westminster.
Image: Shutterstock/Bikeworldtravel

THE UNITED KINGDOM is in the throes of a constitutional crisis that has raised old concerns about its constitutional arrangements and new fears about the integrity of its democracy.

A constitution normally takes the form of a single document, which, among other things, spells out the location of sovereignty and describes the different institutions of the state – the parliament, government, courts, president and so on.

It delineates the nature and limits of each institution’s powers and roles, and the scope of legitimate action and hierarchy among them. This is not the case for the United Kingdom.

Its constitution is secreted in parliamentary laws, resolutions, often old legal decisions and layers of customary practice and gentlemen’s agreements.

This is why Prime Minister Johnson’s actions to suspend parliament were ruled unlawful, not unconstitutional.

Brexit has brought unprecedented confusion and conflict in the UK about the sovereign pecking order of its state institutions.

For example, the established principle of parliamentary sovereignty has been thrown into question by the popular sovereignty expressed in a rarely used referendum mechanism.

The obscure power of the monarch to prorogue (or suspend) parliament, usually seen as entirely ceremonial, now reappears as a reminder of older feudal conflicts between the crown and parliament.

While retention of the practice of the prime minister requesting the monarch to suspend parliament underlines the perils of building a democracy on gentlemen’s agreements and presumption of their good faith.

Another crisis

Over 100 years ago, during an earlier British constitutional crisis, Irishman Tom Kettle satirised England’s attachment to its unwritten constitution and the “regular musketry-rattle” of hear-hears that followed its mention in the parliament.

While still in his 20s, Kettle was one of the last young Irish Party MPs committed to advancing the nationalist cause through parliamentary means and an outspoken champion of the rights of women and labour. 

In 1909, the House of Lords rejected the government’s redistributive people’s budget.

The ensuing stand-off between the two houses of parliament triggered a crisis that eventually led to the curtailment of the House of Lords’ veto. Like Brexit, the Irish Question was at the centre of unfolding events.

As Chris Dooley recounts in his biography of John Redmond, the budget debacle created conditions for a renewed overlap of interests between the Liberals and the Irish Party whereby the latter supported the budget in exchange for a clipping of the Lords’ veto – the perennial obstacle to Home Rule.

In response to the British constitutional crisis of the day, Kettle wrote an essay on written constitutions published in 1910. 

He characterises the prevailing “prejudice” against written constitutions as “beyond doubt, one of the best-established superstitions of English politics”. 

He calls Dicey’s Law of the Constitution, a highly influential law text published in 1885 and still used today, “that masterpiece of romance”.

He discusses the notion encouraged by Dicey that continental jurists, disappointed by their own “miserable paper guarantees of freedom”, are jealous of Britain’s unwritten constitution.

Kettle says they instead say the British constitution would “without doubt be admirable, but, Alas! it does not exist”.

He adds that this is ” by no means respectfully” and that the reverence for the unwritten constitution is “stately nonsense” and that there is nothing “peculiarly English in this dread of documents”. 

Kettle explains that “in dealing with England, you are not dealing with an unwritten constitution, but with a badly written constitution”.

He adds that before the print age, in its 1910 heydey, relying on documents would have been rare.

“To rely on custom rather than on documents is antiquarian pedantry,” he wrote in 1910. 

The true aim of conservatives who “sing the praises of tacit agreements, accepted conventions and other elements of unwritten constitutions”, Kettle argues, is to limit democracy by “keeping government separated from the dust, the tumult, and the heartiness of common life”.

But liberals, who Kettle said joined in mythologizing the unwritten constitution, engaged in “high treason against those two born progressives, the pen and the printing press”.

Instead, they should be saying of Britain’s constitution, “since so much has been written, let us write the rest, and write it clearly”.

Ultimately, Kettle’s essay is a passionate defence of the role of the written word and the critical press in democracy and a call on Britain to make “a constitution for herself” as a prelude to “us all … making a Constitution for Ireland”.

The unfolding crisis in the UK makes Kettle’s advice to Britain in 1910 strikingly relevant over a century later. 

Niamh Reilly is Established Professor of Political Science and Sociology at NUI Galway

About the author:

Niamh Reilly

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