The End of Avoidance

Martin Loughlin on the UK’s Constitutional Crisis

Through a failure of statecraft on a scale unmatched since Lord North lost the American colonies, David Cameron has managed to convert a problem of party management into a constitutional crisis. The result of the EU referendum raises serious constitutional issues which haven’t been properly confronted. The media are now comfortably immersed in the political consequences of the result – the tenor of a Theresa May government, the pressure on Jeremy Corbyn – and lawyers have been called on to consider the status of the referendum vote and the technicalities involved in triggering Article 50. But there has been very little in the way of constitutional analysis beyond the familiar call for the establishment of a citizens’ convention on the constitution.

This isn’t altogether surprising. Constitutional reflection requires a type of political imagination that the empirically minded British tend not to go in for. ‘For forms of government let fools contest,’ Pope said, ‘whate’er is best administer’d is best.’ For the British, governing is a practical art acquired through experience. The British governing elite is proud of its reputation for political nous.

The very idea of a ‘British constitution’ seems a modern scholastic invention. The UK has undoubtedly acquired a distinctive system of government. Its main features are highly centralised governing institutions working through Parliament, well-organised political parties and an independent judiciary with the responsibility to protect civil liberties. But the great achievement of British statecraft is to have kept such new-fangled constitutional issues as identity, citizenship and the precise conditions of political association off the political agenda.

Governing works through the operation of a basic compact whose structural features were clearly revealed by Hobbes. All authority and rights of government must vest in a sovereign, the Crown-in-Parliament. Restraints on the exercise of sovereign authority are a consequence of governing through the formality of law, or derive from a prudential adherence to evolving political practices. The Hobbesian compact is most concisely formulated as protego ergo obligo: subjects obey because the sovereign offers protection.

‘Obedience for protection’ is at the heart of modern government practice. It underpinned Disraeli’s ‘leap in the dark’ when he extended the franchise to working people, and it was implicitly accepted by the Labour Party, formed to represent the interests of the working class, when it pursued the parliamentary road to socialism. The welfare state was established in furtherance of the compact, and so too, arguably, was the decision to join the EEC: the claim was that membership would ensure continuing prosperity and protect workers from the corrosive forces of globalisation.

But over the last thirty years or so, the compact has been stretched to breaking point. This is the result of growing economic insecurity (deindustrialisation and sweeping privatisation), political insecurity (the attenuation of democracy and extension of administrative rationality), and cultural insecurity (mass migration). British statecraft has been severely tested and found wanting. The prominence now being given to constitutional questions, deliberately kept off the agenda for so long, is a manifestation of that failure. Yet while the British have determinedly avoided making a modern constitutional settlement, it seems that over this last period the foundations of a new type of constitution have nevertheless been laid. The Austrian legal theorist Alexander Somek calls this new constitution, which came about through continuing European integration, a ‘cosmopolitan constitution’.[*] The EU referendum was not intended to be a constitutional moment but has become one through the UK electorate’s rejection of the major elements of this cosmopolitan constitution.

Somek is not referring to the constitution of global civil society or even to political associations that have evolved beyond the nation-state. The cosmopolitan constitution is that of a nation-state working under conditions of openness and international engagement. In the modern constitution, the one with which we are familiar, a sovereign people, as the state’s ultimate authority, establishes a formal constitution which defines and limits the competences of its governing institutions. By respecting the principle of majority will so long as it does not unduly infringe minority rights, the constitution institutionalises the principle of equal citizenship. By virtue of this concern for equal protection, modern constitutional democracies claim to promote political freedom.

Cosmopolitan constitutionalism, by contrast, is established in a state that regards global markets, rather than nation-states, as the most natural form of association. In this type of state, ‘the people’ not only loses its status as the ultimate political authority but is regarded as a questionable, perhaps even xenophobic, entity. Its role is taken over by ‘cosmopolitans’, individuals who don’t define themselves by their origin or nationality but who just happen to have chosen to live in a particular location. A new status of ‘post-national citizenship’ has emerged, which confers a right to equal treatment irrespective of nationality. This status is attained by those who have skills that are highly valued in the global economy and those who are part of the global multitude obliged to migrate to improve their life chances by undertaking low-skilled work. The cosmopolitan constitution protects a mobile workforce that is economically active but not politically engaged. It promotes private autonomy over collective self-government, and economic freedom over political freedom.

Under cosmopolitanism conditions, a constitution is no longer conceived as a document enshrining the fundamental laws of a people. Instead, its meaning must be continuously re-interpreted in the light of changing conditions. The ‘will of the people’, whether as the constituent power that enacts the constitution or the majority that makes legislation, is displaced by the reasoning of a judiciary working through transnational networks to determine how rights will be protected, together with continual deliberation among governing bodies over the rationality and proportionality of government action. The business of politics is reduced to making interventions to fix problems in the functioning of complex social systems. Justice becomes a matter of inclusion, where once it was redistribution: a more inclusive multicultural society, Somek says, ‘is the ersatz for a just society, which was already the ersatz for the classless society’.

Having circumvented the revolutionary upheavals that led to the adoption of modern constitutions, the British have retained the flexibility of an evolutionary system, and this has proved fertile ground for the growth of a cosmopolitan constitution. The UK readily adopted the EU’s provisions for free movement and embraced the benefits of EU citizenship. Ratification of the European Convention on Human Rights was the spearhead for the advancement of domestic rights; the claim is that we have now moved from a Hobbesian regime to a ‘common law constitution’ founded not on parliamentary sovereignty but on a principle of legality that develops through judicial reason. Constitutional modernisation has been a recurrent theme in recent years, but only now are we able to discern its imprint as a cosmopolitan constitution.

If the June referendum is read as the judgment of the people on the emergent cosmopolitan constitution, the situation is indeed serious. The UK is now in effect operating with four different constitutional frameworks, each of which commands the allegiance of a significant section of the citizenry. No state can long stand such uncertainty. The first of these frameworks is the Hobbesian compact. The clear message of the referendum result is that the majority of the electorate feels the governing class is no longer fulfilling the terms of the compact, protego ergo obligo. Presented with a Remain campaign backed by the leaders of almost all the political parties, together with dire warnings from the EU and global financial institutions about the economic costs of Brexit, the electorate signalled its dissatisfaction with the direction of recent political and constitutional change. Whatever else it may be, this was a vote demanding that those in power deliver on the Hobbesian agreement through the conventional arrangements of parliamentary government.

The position of the Remainers is more complicated. The poll results indicated considerable support for the EU project in London, Scotland and Northern Ireland, but in each case the reasons were different. The result in London was undoubtedly a vote to bolster a cosmopolitan constitution. Since London prospers through its standing as one of the world’s leading financial centres and is dependent on a large migrant labour force for its extensive service economy, this isn’t surprising. What is surprising, though, is that the advocates of these arrangements, whose voices dominate media commentary, have managed to portray themselves as promoters of an entirely progressive political cause. The constitution they effectively espouse, designed for workers and consumers but not for citizens, is for those who live in a no-place world. It may promote inclusion and even transformation, but these objectives are far removed from the causes of democracy and greater equality.

A third constitutional situation was reflected by the vote in Scotland. Notwithstanding the SNP’s clarion call of ‘independence in Europe’, Scotland voted not so much for cosmopolitan constitutionalism as for the completion of the process that began with the Claim of Right in 1989 and the Scottish Constitutional Convention of the early 1990s. Finding themselves out of sympathy with the neoliberal reforms of the Thatcher era and beyond, and subsumed in an English-dominated Westminster regime, the Scots have invested a great dealof energy in rekindling their distinctive national political identity. Theirs is not so much a cosmopolitan voice as the late expression of a movement that began in the Enlightenment to establish a modern identity by establishing a regime of modern constitutionalism. In this respect, the Scottish position parallels that of the post-Communist regimes of Central and Eastern Europe which after 1989 sought to reassert their national identity through constitutional renewal. Membership of the EU may have been the price they had to pay to entrench these national achievements but, as their subsequent history is showing, these were not cosmopolitan initiatives.

Northern Ireland is different again. Its constitution is the product of a transnational settlement brokered between two sovereign states and contained in the Good Friday Agreement of 1998. The agreement saw constitution-building as critical to the move beyond civil conflict. It aimed to consolidate the peace process by establishing a constitution that institutionalises power-sharing between the two communities, unionist and nationalist, and enshrines the principles of equality, toleration and respect for difference. In this context, it is understandable that the citizens of Northern Ireland wouldn’t readily seek to remove themselves from an EU framework that fosters cross-border co-operation. Whether the Conservative government in Westminster had fully thought through the implications of the EU referendum for Northern Ireland is debatable.

The conditions underpinning traditional claims of sovereignty have changed and will continue to change. Successive governments have failed to offer citizens a convincing account of how their interests will be protected in the face of this. More profound even than the crisis of political organisation is the exposure of major fissures in the constitution of the British state. Managing the interests of the several nations and regions of the UK has never been easy, which is the reason the British have avoided getting entangled in questions of constitutional identity. The singular failure of this Conservative government is that, for squalid party political reasons, it has acted recklessly and as a consequence has thrust these intractable constitutional questions to the top of the political agenda. As things stand, they appear to lead in one direction only: the disintegration of the British state.

If there is hope, it lies with the Scots. They are in the vanguard. Many of their aspirations, implicitly shared in Wales and Northern England, can be realised only if home rule is quickly established throughout the UK. This does not mean more devolution from Westminster. It requires something much more radical: the complete reversal of the centuries-old policy of maintaining strong central government and the establishment of a ‘weak’ federal arrangement. The conceit that Westminster is a British parliament must be jettisoned: it is, and always has been, an English parliament to which representatives of the Celtic regions have been invited to attend. With Westminster reverting to its original role as an English parliament, a new federal settlement should be established in which only national aspects of defence, foreign affairs, taxation, pensions and social security are retained, and new federal institutions should be created – in Manchester. This will require both a tremendous leap of constitutional imagination and a strong political will, both of which may be beyond our capacity. But the alternative is hardly worth contemplating.

[*] The Cosmopolitan Constitution by Alexander Somek (Oxford, 304 pp., £50, July 2014, 978 0 19 965153 5).