In his 1952 book, In Place of Fear, the Labour politician Aneurin Bevan described how as a ‘young miner in a South Wales colliery, my concern was with the one practical question: Where does power lie in this particular state of Great Britain, and how can it be attained by the workers?’ The quest for the location of leverage had led Bevan to Westminster; and eventually the office of Minister of Health in the post-war Attlee government, where he is credited as being architect of the National Health Service.
Though he shares with Bevan the desire for a more equal society, the new Prime Minister, Andy Burnham, seems to have asked himself a different question about how to attain his goal: namely, how do we move power to where the people are? This approach saw Burnham make constitutional reform key to his pre-No.10 agenda, as a means of achieving greater territorial equity in public investment, and ultimately spreading economic growth more fairly across the country.
Head North – the 2024 book co-written with his then-fellow metro mayor, Steve Rotherham – presented a ten-point programme, the first six items of which were clearly constitutional in nature. They argued for more extensive devolution, introduced across all areas of England; House of Lords reform; proportional representation; and the relaxation of the use of whipping in parliamentary votes. Underpinning the overall shift would be a ‘written constitution’ and a principle of equality of living standards across the UK.
Head North presents the Federal Republic of Germany as a model. Burnham held that, had the UK adopted a decentralised, federal, system in the immediate post-war era – such as was introduced to (West) Germany at the time – greater socio-economic equality as between different parts of the UK might have been attained. In this sense, he implicitly challenged the approach followed by the Attlee governments at the time, which drove the creation of the welfare state from the centre, and sought to make it uniform across the UK.
Two years on from Head North, installed in No.10, Burnham has begun a process of decentralisation, including an early announcement that metro mayors will be given more powers and a share of revenues from income tax. The Prime Minister has now also reiterated his support for a ‘written constitution’ as part of this programme. The expression of such a view by a Prime Minister is a significant event. If acted upon, it would be a change of historic importance, bringing the UK into line with most other states internationally. It would provide a new structure through which the UK political system and all its complex dynamics would play out. The prospect of a written constitution – though far from a certainty at this stage – is tantalising. It encourages a set of observations and questions, which I summarise below.
First, we have been here before. There has been more than half a century of debate about whether or not the UK should fully adopt a written constitution, and little progress made towards doing so. Gordon Brown made constitutional reform his central objective upon arriving at No.10 in 2007, and even went as far as to personally support the idea of a written constitution. But the idea failed to gain momentum, partly as a consequence of the global financial crisis. Nonetheless, it is significant that the most senior politician in the country is supportive again today. This development adds a political salience to the issue that has often been absent. Moreover, while sceptics about a UK written constitution often argue that as an idea it lacks the necessary level of public interest and support to be a viable proposition, Burnham believes that it is firmly linked to the ambitions and needs of the population and is therefore very relevant.
Second, what is a written constitution? As pedants will delight in reminding us, some of our constitution is already written down. Various Acts of Parliament, for example, deal with constitutional matters including devolution; and a document like the The Cabinet Manual describes various non-statutory regulations such as constitutional conventions – for instance, the principles that apply to government formation following an election in which there is no overall winner. The ‘written constitution’ label implies a statement of key principles and rules of the political system in a single text. It can be expected to have a special legal status of some kind: making it enforceable, perhaps by the courts; and entrenching it, meaning that amendments to its provisions are subject to some kind of heightened procedural requirement, such as a legislative supermajority. At present, the UK lacks an entity of this kind.
Third, the substantive contents of the putative written constitution require consideration. As Burnham has envisaged it, it would definitely deal with the relationship between central, devolved and local government, including the allocation of funds and powers; and seemingly matters including the electoral system, and the composition of the second chamber. Might it also – as in often the case with similar documents internationally – provide for human rights? There are various other issues it could address, such as the respective roles and powers of the executive, legislature and judiciary; and the status and accountability of bodies such as the civil service, armed forces, and intelligence and security agencies.
Fourth, dealing with these substantive matters will involve making choices. What type of constitution will it be? Burnham seems to envisage a federal model, in which power is divided between a single federal tier and a series of territorial states. This choice leads to further sub-questions. What will be the respective areas of responsibility of the different levels of governance? Might some powers be shared? What lessons can be learned from practices elsewhere in the world? For instance, the Spanish variant on federalism, where different states have taken on varying degrees of autonomy, might have relevance to the UK. Beyond specifically federal matters, what electoral system, precisely, might the written constitution adopt? What will be the relationship between the reformed second chamber and the House of Commons? If rights are to be included in the constitution, will they encompass socio-economic rights, such as a right to housing, as well as civil and political rights, such as the right to freedom of expression?
Fifth, what process can be used legitimately to devise and ratify a constitution? Decisions about form and content would be of immense importance, and would need to command democratic legitimacy. Extensive public engagement mechanisms, such as a large-scale citizens’ convention and various forms of consultation, would seem essential, along with the involvement of politicians and experts. Some degree of cross-party consensus would be valuable, since the constitution needs to be collectively owned. The final text might need approval through such means as a referendum, and through the assent of elected bodies such as the UK and devolved legislatures, possibly involving approval by more than simple majorities. Managing this overall process, and the various pressures and debates it would create, would be a challenging and perhaps prolonged task.
Sixth, the debate about a written constitution connects to a contemporary subject of considerable concern. The idea that democracy – in the UK and elsewhere – is under threat from populist movements has been a source of growing international apprehension in recent years. This concern is reflected, for example, in an inquiry recently initiated by the House of Lords Constitution Committee into constitutional safeguards in the UK. The lack of a written constitution, in some accounts, creates what is in effect an elective dictatorship in the UK. A malign group coming to office would find itself subject to few formal limitations, so long as it could carry the House of Commons with it. A written constitution has new salience in as far as it might help preclude this kind of scenario. For Burnham, the proposal forms part of programme to attain greater socio-economic equality across the UK. Success in this regard might lessen the electoral appeal of authoritarian political leaders, and perhaps ensure they do not come to power. But if they do, then a written constitution could provide some kind of barrier to democratic abuses they might seek to perpetrate. How much of the Burnham agenda is attainable this side of the next General Election is an open question. There are, however, some initial steps that could be taken more swiftly. For instance, certain key features of the constitution could be identified for some form of early entrenchment. It would also be helpful to issue a new edition of The Cabinet Manual, as the government has promised to do, strengthening the most important conventions, such as those dealing with when a Prime Minister is expected to resign.
A fuller constitutional process could then come later, perhaps on a basis of a commitment in a General Election manifesto, and/or a joint statement with other parties that were supportive of the idea. The ultimate goal is an ambitious one. But were it achieved, it could provide Labour and Burnham with a lasting legacy on a par with that achieved by Bevan and Attlee.
Andrew Blick.
I would like to thank George Blick for his comments on an early draft of this post.
Andrew Blick is Director of the Constitution Society and Professor of Politics and Contemporary History at King’s College London.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.