The Political Constitution: An Idea Worth Protecting? by Daniel Skeffington

Authors:

This new report from The Constitution Society examines the idea of the political constitution in the United Kingdom, asking whether it is still worth protecting as a concept. The report’s author, Constitution Society Research Fellow Daniel Skeffington, answers with a qualified ‘yes’. He argues that the political constitution remains an important concept within our complex constitutional language, existing as a contested idea with several distinct, interconnected meanings, each of which provides only a partial understanding of its conceptual totality. However, these meanings are often unhelpfully conflated or confused. Therefore, when we appeal to the concept, we should reflect carefully, taking more care over how we approach, understand, and apply the idea in practice today.

The report proceeds in three sections. The first examines three major understandings – or ‘images’ – of the concept in contemporary discourse: the historical, the analytical, and the political. By analysing these different understandings the report draws attention to the conceptual confusion surrounding the political constitution, laying the groundwork for an analysis of current political debates in the UK.

The second section looks at how the political constitution has been understood in these contemporary arguments. Examining several core aspects of constitutional debate in the UK, from the struggle between executive power and parliamentary sovereignty to the ‘guardianship’ of the UK constitution, it argues that greater reflection on these constitutive images of the concept would be beneficial for those on all sides of the spectrum, some of whom have come to adopt more weaponised and ‘political’ understandings of the term at the expense of historical depth or analytical rigour without acknowledging how this distorts their arguments. Specifically, the report looks at the writings of Professor Richard Ekins, whose reading of the Miller 2 case and other areas of the executive-Parliament relationship have been particularly influential on government policy over the last few years. The section concludes that more care should be taken when considering which aspect of the concept is being invoked, particularly when contentious conclusions are drawn from orthodox starting points.

The third section asks whether, given this conceptual confusion, there is anything worth protecting about the political constitution today. To this end, the report examines three different constitutional models: Martin Loughlin’s ‘unified’ historical model, Aileen Kavanagh’s analytical ‘institutional’ model, and a third which the author terms the ‘homeodynamic’ model of constitutional analysis. Acknowledging the strengths of Loughlin and Kavanagh’s theories – both of which are eminently preferable to the strict ‘legal versus political’ binary of years gone by – the report nevertheless argues that the homeodynamic model provides a more suitable overarching framework to understand the current tensions within the British constitution. Skeffington concludes that the homeodynamic model offers a framework within which various constitutional viewpoints can be reconciled, recognising the value that historical, analytical, and even weaponised political understandings have for sustaining political discourse, while noting the limited role each of these plays.

Daniel Skeffington is a Research Fellow at The Constitution Society. Daniel holds a BSc in Politics and International Relations from the University of Bath and an MSc in Political Theory from the London School of Economics and Political Science.

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.