We live in constitutionally interesting times.
Over the last seven years a series of events have tested the strength of the British constitution. The Union has found itself under increasing strain, with the 2014 Scottish independence referendum opening up questions of identity among the nations which had been simmering since the early 1920s. The 2016 referendum on British membership of the European Union – coupled with a series of increasingly heated debates on how best to implement it – has seen several high-profile legal challenges to the powers of the British executive, from the Miller I case on the scope of the foreign affairs prerogative to the Miller II challenge over the domestic power of prorogation three years later. The implementation of Brexit notwithstanding, the ‘remain’ majority in Scotland, combined with the maintenance of a pro-independence majority in Holyrood, has seen renewed calls for a second referendum by the majority governing coalition. Tensions have also re-emerged on the island of Ireland over the Northern Irish Protocol. Meanwhile, the Welsh independence movement has gained some momentum.
The Union looks to be in its most precarious state for decades.
The next few years are likely to prove just as interesting, with the Johnson administration grappling with the realities of its manifesto commitments. Many less high profile – but no less serious – events are currently unfolding, with a raft of reforms already well underway. These efforts will have a significant impact on the nature and practice of the constitution, for good or for ill, depending on the extent and success of their implementation.
With such a wealth of Acts, actions, and actors to focus our constitutional eye on of late, returning to that most ‘fruitless debate’ between legal and political constitutionalism might seem inadvisable. To some extent I would agree. In recent scholarship, debates about the political constitution have begun to give way to more subtle and holistic interpretations. Many have encouraged moving past this polarity, arguing the distinction often oversimplifies discussion, resulting in ‘the legal’ being crudely opposed to ‘the political’. It is now often reduced to little more than a meta-category, dividing up constitutional territories before more fine-grained analysis can begin.
Yet the ghost of the political constitution still hovers over much of contemporary discourse. Regardless of scholarly debate, the concept still holds great sway in our collective constitutional imagination, and the idea of the political constitution has lost none of its vigour or influence. In many ways, it is in the ascendance. The current government’s reform agenda – the most significant attempt at constitutional change in two decades – has been heavily influenced by a number of sources which draw explicitly on a more purist understanding of the political constitution, most notably by papers and evidence submissions made to Parliament by Policy Exchange’s Judicial Power Project. If such legal/political debates are as unhelpful practically as they are academically, and the idea of the political constitution is not as dead and buried as assumed, this dissonance between scholarship and practice poses a significant political problem for the United Kingdom. It is in this context that I propose revisiting the idea of the political constitution and the role it plays in current debate.
For perhaps to move forward, we must first look back.
The political constitution: a brief history
The emergence of ‘the political constitution’ as a distinct term in our constitutional vocabulary is well known. J.A.G. Griffith’s Chorley Lecture, delivered at the LSE in 1978, develops the concept as a descriptive term for the status quo of British constitutional arrangements – one which privileged political decision making over judicial interpretation. An influential left-wing radical, Griffith’s concern was the ceding of power on societal issues to the unelected, largely conservative judges in the courts. Instead, he argued fiercely for the supremacy of Parliament and the power of politicians to shape the social fabric of the country, through electoral contestation, popular legitimacy, and a democratic mandate.
In the intervening decades the ‘political constitution’ has gained conceptual currency within legal and political circles, and taken on a life of its own. The ‘three waves’ of political constitutionalism since Griffith’s lecture have seen various reinterpretations of his descriptive term become encumbered with normative and political weight, from Tomkins’ and Bellamy’s republican theories to the concept’s increasing reinterpretation by the political right. Throughout these developments the ‘political’ constitution was often set against the idea of the ‘legal’ constitution in one form or another, creating the antinomy between legal and political constitutionalism and helping forge the current polarity in British discourse. Distinctions are often drawn between constitutions of American or Continental origin, written down and enshrined as the basic law of the state, and the formless, timeless nature of the ‘unwritten’ British constitution. A strong sense of British exceptionalism often runs through such claims, linked intimately with questions of identity and peoplehood; the sense of post-reformation Britain, this insular, island nation, as a Protestant bulwark, holding fast against the tyrannical, Catholic hegemony of Europe. While our contemporary sensibilities might quietly dismiss such narratives today, the importance of these mythologies should not be underestimated. As Martin Loughlin has observed in his historical study of public law, these questions of identity – what it means to be a people – run deep in constitutional thinking, far beyond the mere juristic forms of a state or how it structures its offices of government, tying into wider questions of authority and legitimacy. To think they have shrunk entirely from view is to miss the essential quality of what a constitution is, and therefore to misunderstand the dynamics at play beneath the surface.
This brings us to the central issues at stake in contemporary constitution discourse, and the role of identity in the constitution. The political constitution has become the focus of renewed interest of late due to its role in guiding current government policy. A report entitled Protecting the Constitution published in December 2019 by Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project, presents the ‘contentious’ case for ‘restat[ing] limits on judicial power’ following the recent constitutional upheavals in order to restore ‘the political constitution and the common law tradition’. Its influence on the British government’s subsequent reform agenda has been significant. Many points raised in the report have come to pass, in one form or another, as official government policy following the Conservative Party’s victory in the 2019 General Election. Indeed, restoring this particular conception of Britain’s traditional, political constitution has become, for many, a question of identity as much as of prudent policy since leaving the European Union.
The extent to which these efforts will succeed remains in doubt. The original page 48 manifesto commitment for a Constitution, Democracy and Rights Commission was scrapped in favour of a number of smaller, piecemeal reforms, of which the first, the Judicial Review and Courts Bill, will affect only minor changes, none of which substantially curb judicial review, as many had expected. And, while the new Lord Chancellor’s plan to overhaul and replace the Human Rights Act has generated much debate in recent weeks, many have been sceptical of these proposals, not just in terms of their utility but their practicality and feasibility. To date, nothing of this kind has been successful, and it remains to be seen what will come of this new surge.
Since the publication of Ekins’ report there have been a number of welcome contributions to the wider debate around the political constitution. Each had offered a more nuanced understanding of the concept, seeking to transcend the traditional divides which previously polarised discourse. The ‘three waves’ thesis advanced by Goldoni and McCorkindale, the ‘institutional turn’ thesis of Aileen Kavanaugh, and Martin Loughlin’s perceptive revisiting of ‘the political constitution at forty’ have all been significant developments in the literature, fostering an attitude which has seen both sides of the debate largely lay down their arms. Scholarship has begun to turn away from this polarity, with more constructive work now looking at what institutions do and how they do it, as well as the balance between various competing elements that comprise them, leaving Ekins and the JPP ever more on the constitutional extremities.
This is not to say that Ekins and his colleagues do not sometimes raise interesting and important issues. They often do. However, many of their constitutional anxieties have received extensive and illuminating treatments by a number of scholars who have come to see the legal/political divide as anachronistic, unhelpful, and obstructive, answering these concerns without resorting to a form of political constitutionalism which strips out much accountability for the executive. It is noteworthy that the JPP’s effort to promote a constitutional ‘rebalancing’ often deploys arguments of parliamentary sovereignty in the name of preserving the independence of Parliament from an overactive judiciary, with disagreement emerging over the effects which many of their proposed reforms would have, usually the centralising of executive power at the expense of the judiciary, Parliament, and other institutions. Indeed, the distinction between Ekins, Finnis, and other constitutional scholars appears not to be the idea of ‘institutional competence’ – on which there is wide agreement in the British system – but rather how institutional competence is itself interpreted.
Protecting the political constitution?
It is these efforts which my forthcoming report on the idea of the political constitution seeks to analyse. Its aims are clarificatory as well as evaluative. It will not focus on specific government commitments, nor comment extensively on policy. This task has been – and will continue to be – the subject of the UK Constitution Monitoring Group’s biannual reports on the state of the constitution. Rather, the report aims to dig beneath the surface of the government’s reform agenda and analyse the driving philosophy behind these changes – specifically, to look at the amorphous concept of the ‘political constitution’ in its current, practical context – what it is, how it has changed, and how it continues to animate reform.
With this theoretical and historical understanding established, the report will grapple with Ekins’ conception of the political constitution and place it in dialogue with others, looking at some of the ‘essentials’ of the British system – the bits worth protecting and revivifying today. Particular peculiarities, from the centrality of conventions to the role of the office of the Lord Chancellor, will be examined through the prism of Britain’s political constitution, asking how these component parts interact and how they help or hinder the operation of the system as a whole. More minor and less traditional processes such as the leadership election dynamics of the major parties will also be addressed. These are key to understanding issues of accountability and polarisation which drive the overall balance of the constitution, yet are often side-lined during discussions. In so doing, the report will marry up a general debate on the idea of the political constitution with the practicalities of current constitutional reform, examining what exactly is worth protecting about the political constitution, and where we might begin to turn our attention instead.
Britain’s recent constitutional irregularities can be read as a by-product of a breakdown in institutional faith and competence both within and outside of government. ‘Protecting’ the vitals of the constitution will rely on much wider and more subtle forces than one-off cases on prerogative powers or the limits of judicial review, which seek to paint with too broad a brush. Exceptional situations do not make good examples on which to base wide ranging reforms, any more than deeply held convictions about the essential character of Britain’s purportedly political constitution. For while we must always be sensitive to the peculiarities of individual cultures and practices, neither should these unduly constrain the fruitful processes of evolution and change.
Instead, we ought to be focussed on preserving and promoting the quality of civil discourse in society, reestablishing trust between politicians and the electorate. This is a key problem of contemporary British politics, and goes to the core of constitutional destabilisation seen in states around the world, many of which are experiencing democratic backsliding. Only by broadening our understanding of the constitution to include neglected practices can we see how these various elements operate together in a more productive light, and begin working out what is really worth ‘protecting’ in our constitution.
Daniel Skeffington is a Research Fellow at The Constitution Society. He is currently researching a paper entitled ‘The Political Constitution. An Idea Worth Protecting?’. It examines how the concept of the ‘political constitution’ has evolved since it emerged in Britain during the late 1970s, and how this wider philosophy is driving the government’s current constitutional reform agenda.
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.
 Martin Loughlin (2019), ‘The Silences of Constitutions’, International Journal of Constitutional Law, 16(3), p.935
 Best explored by Aileen Kavanagh (2019) ‘Recasting the Political Constitution: From Rivals to Relationships’, King’s Law Journal, 30:1 and Martin Loughlin (2017), ‘The Political Constitution Revisited’, LSE Working Papers.
 See Adam Tomkins (2005). Our Republican Constitution. Hart; Richard Bellamy (2007). Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge University Press; Graham Gee (2019). ‘The Political Constitution and the Political Right’ King’s Law Journal 30(1), pp.148-172
 Linda Colley (2009) Britons. Foring the Nations, 1707-1837. Yale University Press; Linda Colley (2021). The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World. Princeton University Press,
 Martin Loughin (2014) Foundations of Public Law. Chapter 8
 Richard Ekins (2019),’Protecting the Constitution’, Policy Exchange, p.7
 A development many have noted with concern, as smaller reforms may pass undetected under the radar. The lack of a large, central reform committee also poses similar problems to those of the Blair-era piecemeal constitutional reforms, which were accused of lacking unifying and coherent vision behind them.
 This has prompted a recent response by the JPP seeking amendments to the bill. See: Richard Ekins (2021) ‘How to Improve the Judicial Review and Courts Bill’, Judicial Power Project.
 Forceful arguments are deployed by Aileen Kavanagh (2019) ‘Recasting the Political Constitution: From Rivals to Relationships’, King’s Law Journal, 30:1; Martin Loughlin (2017), ‘The Political Constitution Revisited’, LSE Working Papers; Meg Russell and Daniel Glover (2019), Legislation at Westminster, Oxford University Press.
 Gee breaks this down well in ‘The Political Constitution and the Political Right.’ See also Thomas Poole (2019) ‘The Executive Power Project’, LRB and David Dyzenhaus (2021), ‘Schmittean Logic’, Philosophy and Social Criticism, 47(2), pp.183–187, as well as Richard Ekins (2019), ‘Constitutional Government, Parliamentary Democracy and Judicial Power’ Judicial Power Project.
 A philosophy alluded to in Professor Meg Russell’s recent discussion on executive power for Mishcon De Reya, with David Gauke QC and Emily Nicholson, Available at: https://www.mishcon.com/news/tv/executive-power-impact-parliament-sovereignty-law
 For an elegant defence of this position see the collected writings of Michael Oakeshott, or more recently the constitutional patriotism/civic patriotism theses of Jan-Werner Müller and Cécile Laborde.