Book Review: W. Elliot Bulmer, The English Constitution: Refoundation, Restoration, and Reform

With commanding clarity and the occasional splendid flourish, Elliot Bulmer tells us a lot that we have long failed to see or have avoided seeing, namely that the main reasons for our current mess lie in the contradictions and incoherences of what is at best loosely called the British state.  In particular, Bulmer shows why England needs a major reorganisation of its institutions of state, a process which is already under way in the United Kingdom’s devolved nations.

The mess is everywhere.  Mainly (but not solely) in England, we see evidence of serious misgovernment all the time, in the state of the economy, crumbling infrastructure, and overstretched public services.  About 4.5 million children, 30% of the total, are living in poverty, about two million people rely on foodbanks, and untreated sewage is pouring into rivers and on to beaches.  (As for food, we produce only about a half of what we consume and have no great reserves.)  In addition, privatisation and deregulation, coupled with a lack of public investment in energy generation, storage, and distribution, are the major causes of unsustainably high energy prices – which in turn shrink the economy further as we spend more on the basics and less on anything else. 

On top of all that, our whole public sphere, which includes elected assemblies at every level, faces worsening stresses and tensions within and between such bodies.  Among the causes are the populist polarisation of politics, collapsing standards in public life, and the ‘explosion’ of high-level corruption.  In response to spreading public fear and anger, governments pass progressively more repressive legislation, and several major media outlets attack human rights, the judiciary, and the rule of law; even Cabinet ministers have done that.

How have we ended up here?  The ‘proto-parliamentary’ state created by key agreements in the late 17th and early 18th century had a recognisable political and public life together with personal and civil liberties unknown elsewhere – and it maintained lasting stability by making concessions in stages as serious challenges arose, for example, extending the franchise, and lifting restrictions on Catholics, Jews, and other minorities.  Moreover, those major formative agreements  - the 1688 settlement, the1689 Bill of Rights, and the 1707 Act of Union - were reached during a turbulent and violent century and a half.

Nevertheless, various governmental procedures came to be consistently followed, and without being written down in a single document - codified - became ‘constitutional conventions’ which constrained the monarch’s powers.  In effect, they made the House of Commons the supreme or sovereign political body (Lord Carwyn Jones, a professor of law and a former first minister of Wales, reminds us that the principle of parliamentary sovereignty is not written anywhere in the formative agreements of the British ‘state’).

Yet those arrangements, though very successful, were never a considered attempt to create a state in the way, for example, India and South Africa were constituted, respectively in the late 1940s and the early 1990s.  The English agreements were deals among the oligarchic elites; in the 1990s, the rights lawyer Andrew Puddephatt publicly called them a carve-up.  They can fulfil none of the functions of a constitution, such as defining the powers of central and local government, protecting the right to vote, the independence of the judiciary, the Electoral Commission, and so on.  The result is a ‘messy accumulation of statutes, charters, conventions, precedents, and traditions’.

In practice therefore, Parliament is often nothing but the instrument of any prime minister whose party has a majority of even 30 in the Commons (that holds for 14 out of 22 governments since 1945, with several holding majorities of over 100).  Indeed, a prime minister in that position (or the prime minister’s most influential adviser) has near-absolute power.  Among the worst and most disastrous decisions and laws post-war prime ministers have steamrollered through Parliament are the Poll Tax and the invasion of Iraq (which as a Prerogative matter did not need Parliament’s approval at all); more recent measures include terrifying public-order laws. Parliament, furthermore, never sees the vast amounts of legislation which are made by secondary means, and at least one Cabinet minister has simply crossed out written questions put to them by a designated Commons committee.

Worse still, it is now almost standard practice for Acts of Parliament to be less and less specific, so that ministers can then make major new laws under these ‘skeleton bills’ entirely without Parliament’s approval or even knowledge.  As Bulmer concludes, our checks and balances are as watertight as a colander, and putting our supposed constitution under pressure is like pouring hot water into a chocolate teapot.

How has this botched assemblage of nods and winks managed to last this long as the informing principle of a country with a long reputation for stability and prosperity?  Bulmer, noting that imperial conquest and plunder helped, focuses on the ‘good chaps’ theory, an idea held for many decades that most if not all in politics could be trusted to behave in the right way and generally act in the public interest.

The ‘good chaps’ are now all but extinct.  In about the last fifty years, political parties, formerly mass bodies which involved large numbers of voters in politics and policy-making at a wide range of levels, have become tight top-down cliques in which those who become ministers have mostly been party insiders - professional politicians - from their early twenties; they have ‘never worked in the real economy’.  Often incapable of weighing evidence and understanding facts, they are unsuited to the ‘hard work of governing’ – and even as ordinary MPs they would probably be suspended or expelled from their parties for deviating from the party line.  In addition, those of the social elites currently in politics have never had to face the horrors of war and the responsibilities which war would force upon them in relation to the other ranks of society.

The resulting remoteness of public institutions and the near-collapse of public trust in them inevitably mean that major constitutional actions have had consequences those at the top never foresaw and apparently cannot understand.  Power devolved is power retained, but Scottish and Welsh devolution (and the Belfast Agreement) have created political communities which by using even the limited powers Westminster allows them are exposing the fact that England has no representative assembly of its own.

Secondly, Bulmer shows, with evidence, that Brexit was nothing like a matter of ‘landless, ale-soaked Saxons’ taking their country back from their ‘land-owning, wine-quaffing Norman rulers.’ It was instead ‘the ultimate counter-revolution against English democracy’, a game between one set of Eton-Oxford Normans (sic) and another, in which the rest of us were ‘peripheral and expendable’.  So - the United Kingdom has now run out of road, a road on which it unwittingly set out when Indian independence ended the Empire in August 1947,  and the direction of which it has apparently never thought about since then.  (British officials across the Empire selected and destroyed millions, perhaps tens of millions, of documents which showed their attitudes to their imperial subjects and what they had done to those subjects).  The UK is a state ‘out of place, out of time, and out of ideas’; Bulmer, almost echoing Shakespeare’s John of Gaunt, says we in England are stuck in ‘a zombie state, a vampire economy, a ghost town.’

Where then does England go?  Some form of reconstitution is the only way ahead – but ‘England is constitutionally illiterate.’  We are not, however, constitutionally prelinguistic beings, and Bulmer – the second half of the book is a clear draft constitution - insists that a codified English constitution must draw upon our long familiarity with constitutional conventions and the strengths of codified systems which are broadly derived from the Westminster pattern; Australia, Barbados, Canada, and India are four such.

That would impose no strange institutions, or terminology, or procedures from on high (by the way, Bulmer advocates retaining the monarchy for England, and creating a special position for the Anglican Church in England, but he would end its subordination to the state).  Secondly, wide public involvement in the creation of a constitution - Bulmer draws on his own experience drafting and adapting constitutions in many states around the world – is an integrative process which expands our sense of ourselves as participating citizens.  No elite 1688-style carve-ups there.  Thirdly, sections of the constitution would have to be entrenched, that is, made very difficult to amend, so as to protect them and preserve major rights from casual or malign abolition; entrenchment is a widespread feature of many states’ constitutions.

Today too, a codified constitution would be ‘as “pukka English” as sitting in your pyjamas on the veranda of your bungalow, eating chicken tikka masala, and drinking Australian shiraz, while listening to South Africa play the West Indies at cricket.’  (Take the Hindi, Bengali, and Farsi out of that, and what’s left?)  Tempora mutantur, nos et mutamur…Our constitutional collapse is well advanced, but Bulmer shows how that creates a space for English renewal drawing on our existing and inherited customs, practices, and ideas to shape a genuine democracy.  A marvellous, inspiring book.  

--Review by an October Books volunteer.

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