Constitutional Politics of Institutions: The Call for a British Constitution

—Susan M. Sterett, Virginia Tech

A written constitution for Britain is even making the American news again, inspired not least by the debates about independence, with the anniversary of the Magna Carta adding continuity and contrast.[1]  American news describes the call for a written constitution as a response to immediate problems.  British constitutionalism is as much a question for the political science of institutional change as it is for those who think about judicial review or the content of constitutional provisions.  Building a public case for a constitution has emerged from reorganized institutions and ideas that infuse them, rather than litigation that overturns what legislatures do, what we often treat as the hallmark of constitutionalism and its evaluation in analyses of the worldwide expansion of juridification and constitutions.[2] Resurgent politics of independence can make constitutionalism look like a response to immediate problems—a way of extending winning political coalitions, for political scientists.  That doesn’t account for the long slow work of making ideas possible.

Institutionalizing legal ideas in law schools and think tanks built conservative legal ideals into American law by relying not upon litigation but upon professional commitments by legal professionals and funders who sponsored interest associations.[3]  Similarly, the re-emergence of an argument for a written constitution and a domestic Bill of Rights for Britain was made possible by years of work by lawyers and legal commentators, and civil servants.  They organized legal practice as human rights practice even before the Human Rights Act, wrote textbooks explaining British constitutionalism and embedding both European and domestic accountability, as well as litigating.  Civil servants helped to reorganize the administration of the courts in a way that paved the way toward the current Supreme Court.  Changes were sometimes responses to immediate problems within practice, and then were available when the broader concerns about constitutional change came to the fore.

The British case concerning constitutionalism doesn’t fit into the categories for analyzing the expansion of constitutions, rights, and courts worldwide that has colored the postwar world, since it’s not either primarily judge-led nor primarily a response to demands by litigants, though it includes both.

Since the United Kingdom didn’t have a document framed as protecting human rights and allowing courts to declare legislation as inconsistent with human rights before 1998, the United Kingdom doesn’t look like the other Western states that have judicialized rights claims.  Since it is a Western liberal legal democracy, it does not fit with analyses of constitutionalist movements in authoritarian states. The efforts of the educated legal elites have a history that demonstrate both how politically flexible claims to constitutionalism can be, how intertwined with particular policy problems, and how deeply connected to the worldwide move for constitutionalization of politics.

Saying what’s wrong with the British government as a matter of needing a written constitution has been a professional project off and on since the Second World War. The project has always been intertwined with particular governance problems, and their meanings have shifted over time.  The very flexibility of what a constitution would do allows people to deploy arguments for it from different points of view.  After the Second World, the strength of the party system allowed the conservative Lord Hailsham to denounce the ‘elective dictatorship,’ and argue for revisions that would allow accountability through law.  In the 1980s, restrictions on settlement for people from the Commonwealth and on asylum-seeking combined with legal aid to bring a specialized administrative court to rapidly manage claims while also borrowing from continental legal accountability. Metropolitan governments’ objections to the Thatcher administration partly played out in the courts, through statutes. [4] Constitutional revision was something the Blair-led government could offer to distinguish itself.  Flexibility in claims concerning what’s constitutional has allowed many issues to be loaded onto that theme, from devolution to complaints about asylum seeking or the conservative orientation of the judiciary. Political elites in the 1990s presented the British government as not modern enough, and constitutional revision would modernize Britain.[5]  Modernizing has included bringing women into the judiciary.[6]

Asylum seeking has also been at the heart of constitutional revision in Britain. [7] Pursuing claims through domestic and supranational courts brought both a politics of statutory interpretation and European rights to Britain.  Now the tabloid-supported perception that European rights require judges to welcome asylum-seekers has allowed a call for a home-grown bill of rights to come not from legal elites concerned about administrative states, as it once did, but from populist anti-asylum seeker tabloids.[8]

The belief that a constitution could be a ‘machine that would go of itself,’[9] a machine that could dampen conflict, animates hopes for a constitution in the country that both traces a long lineage for home-grown rights via the Magna Carta, and that worries that a constitution would impose rigidity that has not characterized the spread of constitutionalism worldwide. Long-term work by barristers, solicitors, legal commentators, and civil servants make a constitution as problem-solving an available idea now.

Suggested Citation: Susan M. Sterett, Constitutional Politics of Institutions: The Call for a British Constitution, Int’l J. Const. L. Blog, June 22, 2015, at: http://www.iconnectblog.com/2015/06/constitutional-politics-of-institutions-the-call-for-a-british-constitution

[1] See e.g., Griff Writte, “After 800 years, Britain Finally Asks: Do We Need a Written Constitution?” http://www.washingtonpost.com/world/europe/after-800-years-britain-finally-asks-do-we-need-a-written-constitution/2015/06/07/6097b50c-e908-11e4-8581-633c536add4b_story.html.  On the Magna Carta and constitutionalism, see

[2] For an excellent overview of constitutional change from law professors’ perspectives, see Dawn Oliver and Carlo Fusar (eds.), How Constitutions Change: a comparative study (Hart Publishing, 2013).

[3] Steven Teles, The Rise of the Conservative Legal Movement: the battle for the control of the law (Princeton University Press, 2010).

[4] Susan M. Sterett, Creating Constitutionalism? (University of Michigan Press, 1997).

[5] Sally J. Kenney, Gender and Justice: why women in the judiciary really matter (Routledge, 2012).

[6] Kate Malleson and Peter H. Russell, Appointing Judges in an Age of Judicial Power: critical perspectives from around the world (University of Toronto Press, 2006).

[7] Rebecca Hamlin, Let me be a Refugee (Oxford University Press, 2013).

[8] Rebecca Hamlin, “The Immigration Act and the New Politics of Immigration in the United Kingdom”, paper presented at the APSA meeting, 2014 (Winner, Law and Courts Section, Best Paper presented at APSA 2014).

[9] Michael Kammen, A Machine that Would go of Itself: the Constitution in American Culture (Knopf, 1986).