CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1178-iv

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

POLITICAL AND CONSTITUTIONAL REFORM COMMITTEE

MAPPING THE PATH TO CODIFYING-OR NOT CODIFYING- THE UK’S CONSTITUTION

THURSDAY 12 JANUARY 2012

DR JOHN ALLISON and PROFESSOR LINDA COLLEY

Evidence heard in Public

Questions 154 - 183

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Political and Constitutional Reform Committee

on Thursday 12 January 2012

Members present:

Mr Graham Allen (Chair)

Paul Flynn

Sheila Gilmore

Fabian Hamilton

Simon Hart

Stephen Williams

Examination of Witnesses

Witnesses: Dr John Allison, University Senior Lecturer in Law, Cambridge University, and Professor Linda Colley, Professor of History, Princeton University, gave evidence.

Q154 Chair: Linda and John, welcome to the Select Committee on Political and Constitutional Reform. We deal with probably the oldest topic in Parliament, but we are the newest Committee. We like to invite eminent and capable witnesses and engage them in conversation. Please feel at ease and free to say exactly what is on your mind. Our Members have a reputation for asking helpful questions rather than trying to trip up anyone or making life difficult. We would like to pick your brains; that is why you are here. To start that off, perhaps you would like to say a few opening remarks to set the scene for the questioning.

Professor Colley: First, it is a great pleasure and privilege to be here. Since I am an historian, I would like to start with a bit of constitutional background. It is famously said that the UK has an unwritten constitution. It might be useful to remember that the phrase "unwritten constitution" is, in historical time, a relatively new one. You can now search parliamentary debates on computer. Doing so reveals hardly anybody at Westminster talked about an unwritten constitution before 1850. The phrase remained rare in Westminster and the media up to the 1870s. It was only then that the idea of an unwritten British constitution really became ensconced in political analysis here. Why was this so? Partly because people before then had a much stronger sense than they do now of the extraordinary texts supporting the British constitution: Magna Carta, the Petition of Rights, Habeas Corpus, the Bill of Rights, the Acts of Union with Scotland and Ireland. Even the 1832 Reform Act when it was passed was widely referred to as a "new constitution".

One thing that has happened, particularly since the second world war, is that we have lost a lot of this broad knowledge of important constitutional texts. This is something of a challenge. As a result we have a kind of black hole: We have neither a written constitution, which crucially could serve an informational purpose, nor-at civil service level or, forgive me, among many MPs, and certainly not among the general public-a strong sense of constitutional history. This black hole, this vacuum of constitutional knowledge and information, needs to be addressed in one way or another.

Dr Allison: I thank the Committee for inviting me. As Linda said, it is a pleasure and a privilege. I echo what Professor Colley has said. There was a time, at least 100 years ago, when the constitution was a proud historical constitution. It is now defined by a comparative deficiency, either as an unwritten constitution or, with slightly greater sophistication, as an uncodified constitution, but still defined as a pure negative, something that is different from other constitutions.

As I see it, in today’s session we need to look at the traditional reasons why there has not been a written constitution, in the sense of a codified constitution, and to consider their relevance today. Are those reasons still relevant, or irrelevant? I will go briefly through the reasons as I see them.

There is a basic legal reason, namely parliamentary sovereignty. Why introduce a written or codified constitution when it can be changed in the same way as any other Act of Parliament? That’s one reason. That reflects a political reason, really: to leave Parliament flexible and able to respond efficiently to whatever circumstances might arise, rather than allowing Parliament to bind its successors, as the phrase is used.

A second reason is a comparative reason. In the distant past, when there were very early forms of constitutions, England-or Britain-looked at these neighbouring constitutions and wasn’t very impressed. It looked at two in particular. It looked at the French constitution-the grand Declaration of the Rights of Man, as they were then called-and saw it as the product of a revolutionary period, which saw greater violations of those rights than at any previous time, to use the words of Albert Venn Dicey. And it looked at the USA, where it identified the constitution very much with a separation of powers, a disabling and inefficient separation of powers. The question would be whether that sort of comparative look is still valid today.

The third important reason is a historical reason: a very high degree of continuity in English history, dating back to the mediaeval period. I think that there is a high degree of truth to that. There have been big moments, but they have not really been treated as constitutional moments, when a new constitution should be drawn up: union with Scotland, union with Ireland, the Anglo-Irish Treaty 1921 and the extension of the franchise with the Great Reform Act. These were constitutional moments, perhaps, but they were not treated as such. There was one big moment of discontinuity, which was the Interregnum. There were written constitutions in that period, in the form of the Instrument of Government, but that discontinuity was obliterated with the use of fiction-the fiction that King Charles II had immediately succeeded King Charles I. In some ways, it was obliterated from public memory, and to the extent that it was remembered, it was arguably seen in rather a negative light.

The fourth reason is really a practical reason. Writing a constitution is a difficult matter, which will bring into contention a number of difficult issues, currently: asymmetry in devolution, which conventions to introduce into the constitution, House of Lords reform, separation of powers, and the role of the courts. You name it, and they will all become relevant. Those are quite difficult issues. That is why often there needs to be a constitutional crisis of sufficient moment such that people are prepared to confront those issues and resolve them, rather than let them linger on in an unsorted-out state.

The big question, as I said, is the extent to which those four reasons are still valid today.

Chair: Excellent. That was very helpful.

Q155 Sheila Gilmore: I want to start by suggesting that this might be one of those moments, if we look at the situation in Scotland. You talked about asymmetric devolution, which is a serious problem. It is a serious problem whether there is a move to independence or just a move to greater powers, which is one of the other possibilities. That issue is not going to go away. Even if an independence referendum is defeated, that issue will be there. Even if it is not in a referendum, it will be there as an issue to be addressed, which will further exacerbate this difficulty that we have. Obviously, some people have suggested that the way around that is some form of federal constitution. Do you think that this is a time that we should grasp the issue?

Professor Colley: You could certainly make that argument. There has been a cult of organic evolution of the British constitution. But in practice, organic evolution can become drift and a failure to address underlying issues. You could argue that, as well as biting the bullet and introducing devolution in the 1990s, had the then Government thought of working out a more federal constitution for the UK as a whole, and of spelling things out more, some of the current difficulties might have been forestalled.

This is not a new argument, the late Lord Hailsham-who was obviously right of centre put forward ideas of this sort some decades ago. He argued that a more thought-out, codified, federal constitution for the UK would not only help deal with English, Scottish, Welsh and Northern Irish differences and tensions, but would also help with the extreme regionalism within England-especially the north-south divide. So, yes, it could be that these genteel discussions will be anticipated by events. We know that if Scotland secedes, the SNP is committed to a written constitution. Would Westminster then have to think of a written constitution for what is left of the UK? It is possible.

Dr Allison: Yes, we could be seeing a constitutional moment develop of considerable significance. There could be restructuring; a restructuring in an ordered way might result in a constitution. It might be possible to see the question in the light of a referendum. How should this referendum be called; what should be the wording; who should have the decisive say in this referendum being called? This can be seen either as a straight political issue that must be sorted out between the relevant parties, or as something that should be governed by a constitution, which would lay down the parameters for the referendum, how it should be called and through what process, allowing throughout, I imagine, a very wide political berth. Politics must clearly play an important role here, but perhaps one wants a text to provide greater guidance.

I am not absolutely up to date on what the textual guidance is in the Scotland Act and so forth. Clearly, it would be a very different debate if there were a written constitution, and the courts could quite easily be involved. They might easily be involved anyway; I am not sure how this will be resolved and whether politics will do it or not. It would be a very different issue, however.

Q156 Sheila Gilmore: Would it make a huge difference for there to be an overall written constitution? The constitutional position with regard to a referendum seems to me to be quite clear, in terms of the Scotland Act. The practical position that we are in is that the politics of the situation may mean that that sort of constitutional nicety is one that, for various reasons, nobody wants to fall back on unless somebody wants to go to a court challenge. It is actually a situation where I do not think there is a lack of clarity but politics is overwhelming that, so however much Michael Moore the other day was correct in saying, "This is what the position is," it has been overtaken. Would it not be overtaken even with a written constitution? What is the difference?

Dr Allison: Here the Scotland Act is arguably one of a number of big statutes that are surely constitutional statutes, possibly immune from implied repeal-a later Act that is inconsistent with them would not repeal them-but it probably does not have the big, symbolic authority that a constitution would have. If you had a constitution, you would not have politics outweighing or overshadowing the legal debate. The legal debate would become more important, and even politics would be directed towards the phrases in the relevant constitution that govern a referendum and the political interpretations of those phrases. There would still be politics, but the focus would be more on the words of the statute, if it is given the special significance that a constitution would be given.

Professor Colley: You would have to add the comparative point that in virtually all polities that contain distinct divisions of people and have some kind of federal structure, there tends also to be a written constitution to serve as a kind of treaty between the component parts. This is the case in the United States, obviously, and in Germany and Switzerland. Of course, you cannot anticipate very future eventuality in a federal state, but you can try to get people to agree to a common set of rules. If they then subsequently break those rules, at least you have written and previously agreed upon rules to wave in their faces, and that can be helpful. Certainly, other federal polities have found it so.

Q157 Sheila Gilmore: Is that partly because it is not necessarily a two-way negotiation that we have? I presume that the Scotland Act is not seen as having an embedded status. From a Scottish perspective, which I have to say is very different from what people are saying down here, one of the arguments appears to be that it is just a Westminster Act of Parliament imposed by Westminster, so they do not really have to pay that much attention to it. If you have what you are describing in terms of federalism, is that seen as more of a partnership where people have a stake in having arrived at that?

Professor Colley: I come back to the issue of just where are people going to get their constitutional information from? If you have a written constitution, one of the great advantages is that it can be diffused widely across the land in print, online, in podcasts, or whatever, and it becomes, or can become, a consensual manifesto, within which the majority of citizens and regions agree to operate. That, at least, is the possibility. If you do not have some kind of agreed treaty, which is what good written constitutions tend to be, people may diverge more.

Let me be clear, however, I am not saying that written constitutions always hold or always prevent problems. Indeed, let me give you a piece of counter-information, namely that an American political scientist has calculated that, since the introduction of the first modern written constitution in the 1780s, the average survival rate of written constitutions across the world has been just 18 years. So these instruments are not failsafe solutions. But in certain circumstances they can help.

Dr Allison: One point to add to that is that, purely for educational reasons, a written constitution has educative value. It is something that can be taught and learnt at university and at school. People know that that is what their constitution is. However, to counter-balance that, I would say that there is a widespread recognition that much occurs beyond constitutions. They are not all-encompassing, and there is the same realisation with regard to private law governing private disputes that much develops beyond the code, which might be private law or commercial law or whatever.

In constitutions-the French constitution is well known for this-the whole French adjudicative system for dealing with administrative disputes developed outside of the constitution. It was a very important development. There are many examples that I can take from private law, where the code is not exhaustive for what is going to happen. Provided, therefore, that one realises that and that historical understanding would still be important even if a constitution were to be introduced-I would argue that there is a historical constitution deeper than a written constitution, which would govern the relationship of one constitution to the next after each 18 years on average-a written constitution could none the less have value. It could certainly have symbolic, unifying value as well as educative value. The very process of introducing a written constitution might-if not actually achieve great clarity, because there are tendencies are in different directions-be a good process to confront some of the big issues and help achieve consensus upon them to the extent that consensus can be achieved.

However, much is left out of constitutions for two contrasting reasons. Often, there is too much agreement to regard it as necessary to include something in a constitution-one is barely conscious of what is most obvious-or there can be too much disagreement and therefore you get bits left out because consensus cannot be achieved on something.

Q158 Chair: I am minded to recall the famous American comedian Lenny Bruce, who built a routine around the F-word-the real F-word. [Interruption.] Do not steal my punch line, Paul, or you will not last long on this Committee.

Lenny Bruce said, "How did we make a swear word out of this most beautiful interaction between two human beings?" That is a long-winded way of getting round to there being another F-word in politics, which is "federalism". Because of its use in a European context, the word has a certain connotation. But I think you both mentioned federalism in the context of a settlement for the United Kingdom. In order to rescue this beautiful concept from its Euro-devalued usage, could you briefly give us a view of how a federal United Kingdom might work?

Professor Colley: It is important to realise, as I have already hinted, that discussions on these issues are not new. Before the first world war there were various campaigns here for Home Rule all round, not just for Ireland, but also in Scotland, and in Wales. Winston Churchill, for instance, was involved pre-1914 in trying to wrestle with the asymmetry between the sizes of the four home nations. These pre-war discussions reached quite an advanced stage, and this is one of the great "what ifs" of UK history. If that other event not happened in 1914, might the political organization of the whole UK have been different?

We have to accept, that since 1945, there have been shifts in the notion of Britishness and a collective British identity. This society has become much more diverse, both ethnically diverse and diverse in religion, and there has been a decline in the collective sense of Britishness. So you could make an argument for linking the introduction of some new constitutional text or texts with a more federal organisation for the UK, not just allowing Wales, Scotland and Northern Ireland greater autonomy, but perhaps also recognising the real divisions that exist between different parts of England itself. It would perhaps be nice to have a renewed council of the north, an institution that goes back centuries, for instance. There are all sorts of things that you could do if you had the will and the time, both of which I imagine can be difficult in politics.

Dr Allison: I was very pleased to hear your scepticism about the conceptual baggage of the word "federalism". For me, the word is very open-ended. It depends upon what powers one chooses to allocate to the central authority and what to the regional authorities, which could be variable. There could be great powers to the central authority or great powers to the regional authorities. It is unfortunate that federalism has strange connotations in a European context as if it involves some sort of union, which is a different concept. Federalism would be one way of dealing with devolution issues, and a constitution might clarify the relationship of the centre to the parts without prejudging that allocation in any way whatsoever. A great diversity of federal arrangements is possible. I have not done any work on federalism, but that is my instinctive response to it.

Q159 Chair: How might a federal Parliament and a federal Government look? Bigger or smaller? Less power or more power?

Dr Allison: Unfortunately, federalism is not my area of research. I think I will probably not answer that in any sort of predictive way; I am really not sure.

Q160 Chair: It is probably not the area of expertise of very many people. It is not one of those areas that has been delved into by masses of people.

Professor Colley: But it is an area which, in fact, is not as alien to the UK in the past as we might think. One of the areas of our constitutional past we tend to forget is that - because this polity was once the biggest empire the world had ever seen, or is ever likely to see, - London drafted all kinds of constitutions for different parts of the empire. Among those it helped to draft were federal constitutions for places such as Canada and Australia. In order to help draft those constitutions for parts of the empire, British constitutional lawyers and politicians studied the US constitution, for instance, very hard. Thinking in federal terms and working out the complexities of federal machinery is something that British lawyers and British politicians have done in the past, but with reference to countries outside our own islands. So federal solutions are not incompatible with the British genius, if such a thing exists.

Dr Allison: In some ways, knowledge is needed of a particular branch of federalism-asymmetric federalism-and there are far fewer examples of that. You have to think of Spain and the Basque area. A recent federal attempt was made in regard to Iraq and the special position of the Kurdish region. Again, it was new, in response to special demands. To what extent does there have to be uniformity in a federal arrangement? Most countries that are federal have a good deal of uniformity in the relationship between the centre and the parts, but clearly there will often be a part that wants to be more independent than other parts, and that is the case in the UK. It will be asymmetric federalism that has to be closely looked at. It is a subject on which there could be a number of seminars, and work on that should be encouraged.

Q161 Simon Hart: You touched earlier on public engagement. I cannot help thinking that if constituents of ours were watching this on the telly, they might be wondering why they should get involved or be interested in these constitutional arrangements. How do we convert this into normal language? How do we make it interesting for people? How do we make people care about it? Most people, let us be honest, do not care about it, because they do not understand it. I am probably one of them, in a way, because I come from the point of view that we seem to live in a country that has lots of constitutions, in their own funny ways-whether it is the Cabinet Manual or the statute book-all of which are permanently being updated, permanently being refreshed and permanently evolving. Both of you used expressions like "constitutional crisis", but what is a constitutional crisis? Explain to me what a constitutional crisis is and why I should care?

Chair: But don’t lose Simon’s first point about public awareness.

Professor Colley: I do not think I used the word "crisis". It is overused.

Simon Hart: I must have read it rather than heard it.

Professor Colley: I certainly think there is a bit of a black hole. I think if you are not careful, you get into an element of circularity here. As I said earlier, there is very little teaching in the schools or universities about constitutional information, so people do not learn about the subject at that level. Because they do not learn it, how are they supposed to become interested in constitutional matters? Where are they to get the information that explains why all this is relevant to them? Of course, it is relevant to them. I think you could go out in the street, even outside these august buildings, and take the proverbial man or woman in the street and say: "Can you tell me what are the powers of the Prime Minister, and what are the limits of those powers? And if you don’t know, can you tell me where you would go to find this information?" I do not think that many people could come up with an answer. This is very dangerous in a democracy. We have to make this sort of information more easily available, and we have to encourage people-we have to tell people-that, if you want to live in a democracy and want to keep tabs on the powers that be, you need such information and it needs to be available. That seems to me the most important thing.

Q162 Simon Hart: Forgive me, but it is available: the Cabinet Manual is, at least now, a published document, so it is available. For those who are interested, it is there, and it is actually in relatively coherent language, but that is not the problem. It’s not the fact that it is not there; it’s the fact that nobody cares if it is there.

Professor Colley: The Cabinet Manual, as you know, is itself fairly recent. Lots of things, as Lord Hennessy has pointed out, are still left out of the Cabinet Manual. I have not seen copies of the Cabinet Manual on sale in Smiths and Boots. I have not seen a simplified version of it available in children’s schools. I have not seen a version that comes up easily on an iPad or computer. It could be done, though the prose in the Cabinet Manual hardly dances. Other countries make constitutional information widely available. I do not believe that we, in these islands, are not capable of doing the same, if we wanted to.

Dr Allison: A lot depends upon education about what has happened in the past. I was pleased, in the early parts of the coalition Government, to see some emphasis upon history teaching and so forth-although that emphasis seems to have gone-but part of the historical understanding or the teaching about what happened in some political squabble or crisis, or whatever you want to call it, might be a sense that the outcome could have been different.

In recent times, the last crisis I can remember was about the Immigration and Asylum Bill, when there was an ouster clause in it that excluded the jurisdiction of the courts. The Law Lords became very upset by that-the then Law Lords, before the Supreme Court was established-and basically said, "Well, perhaps we need a written constitution, precisely to avoid this attempt to oust the jurisdiction of the courts in regard to immigration disputes falling under the Bill." Ultimately, the Government backed down and withdrew that ouster clause.

A constitutional crisis would probably typically involve serious confrontation between two branches of government-that would be one kind of constitutional crisis-but I think that debate would have been very different with a written constitution. The courts would probably have quite quickly become involved with such an issue.

Q163 Simon Hart: I have one follow-up question in relation to Wales, where a process of devolution is in play. There was a referendum on further powers-last March, I think it was. Do you think that had there been a proper, codified constitution-should we have had one of those-it would have had a positive or negative influence on, say, Welsh devolution? The reason I ask that question is because to some extent, whether we like it or not, surely we should be giving the devolved Parliaments as much flexibility as possible to reflect the will of the electorate in those particular countries. Therefore, a constitution that restricts the ability of that Parliament to evolve and develop is not necessarily a good thing, is it?

Dr Allison: Constitutions can vary in their generality. The issue you raise is very important-that if the decision of the drafters of the constitution is to try and deal with every minor eventuality, include all conventions and try to cover all eventualities, it will not be a very pretty constitution, and it could be very restrictive. Clearly an objective in constitution drafting would be to allow sufficient flexibility for politics to operate successfully. There has to be a good role for politics. It cannot be a replacement of essentially judicial intervention at every point. That would be conceivably disastrous.

One thing about constitution drafting is that it must be done extremely well over a long period, with much thought. The chances of things going wrong are fairly great and are partly responsible for the numerous constitutions that have occurred in other countries. There has been talk of a "graveyard of deceased constitutions"-a place where one walks aimlessly, wondering about all the misguided effort; but it need not necessarily be misguided. There is lots of experience to draw from. What one learns from other countries is very easily available. You can view many different constitutions elsewhere which have been successful, which have or have not given a sufficiently wide berth for politics. Successful constitutions also do not simply depend on the text; they depend on the supportive attitudes and the political cultures. You can have a wonderful constitution which can still fail for want of a supportive constitutional culture behind that constitution.

Professor Colley: You can, of course, have a kind of umbrella-a range of constitutions. This is what you have in the United States, where not only do you have the federal constitution, but you also have the different states making their own constitutions and changing them quite regularly. This point is often forgotten in the United States. People say, "Oh well, the American constitution has lasted since the 1780s-clearly a monolithic polity." Not so: in many ways, the state constitutions play a much more important role, and they are altered quite frequently. It is the state constitutions that allow for some of what you mention-local changes, and local aspirations at the state level, as distinct from the federal level-because the US federal constitution is blessedly brief, which is partly why it has survived. It does not try to do everything. It leaves much to the states, and they do their own thing, while paying due homage to Washington at the same time.

Q164 Paul Flynn: There is a description of the creation of the British constitution as a process of evolutionary gradualism. The Occupy demonstrators, if they chant, don’t chant, "What do we want? Evolutionary gradualism. When do we want it? In a century’s time." They are more likely to say, "What do we want? Revolution. When do we want it? Yesterday." Don’t you feel that that extraordinary demonstration, which had echoes in 70 countries around the world-a tiny number of people who have provoked a world conversation on the processes of government-means that we are likely to see sudden changes in constitutions and the way we look at our problems?

Professor Colley: The constitutional history that used to be taught in this country-and no longer-was something like a confection. It sometime made past developments seem more gradual than in reality they were. There have been revolutions in these islands and there have been very dramatic changes, like the treaty of Union of 1707 and the Act of Union with Ireland in 1800, which got rid of the Dublin Parliament and changed the nature and the composition of the Westminster Parliament. This was all glossed over under this slow, evolutionary model. But yes, there are all sorts of-not a crisis, but challenges and shifts. Perhaps one that we have not mentioned, which is important, is this. Up to the second world war, the British political elite was fairly homogenous. It was overwhelmingly white; it was overwhelmingly male. Most of the chaps involved had gone to certain schools, and certain universities and studied the same kind of constitutional history. They all had, ideally-and often in fact-a common corpus of knowledge to work from. If you have that elite culture in existence, it was easier to get away with things being unwritten-with a constitution of conventions-because there was a sense in which most of the men in charge knew each other and knew the unwritten rules.

There have been so many shifts-not just in this nation, in this society, but in the structure of our politics and our political personnel-since the second world war which we also have to bear in mind. I was speaking to a former Clerk of the House of Commons last autumn. In my experience, Clerks of the House of Commons are not the most iconoclastic of folk, but he said that - in his last few years in the job - he had begun to be converted to the idea of some kind of a written constitution, because he personally had become tired of talking to senior civil servants who did not seem to know the constitutional precedents, because there is no longer that kind of common corpus of knowledge which, to a degree, did obtain before the second world war.

Q165 Paul Flynn: We are just about to go into a period where this institution-Parliament, the Lords-will become infantilised in an extraordinary way and behave in ways that most intelligent people would find ridiculous in our relationship to the Crown. We will behave as servile subjects, rather than intelligent, self-respecting citizens. Jamaica is the first of the Caribbean islands-and, probably, certainly not be the last-to say that it wishes to set up a republic. Where those constitutions that are based on ours take out this fundamental building block of the constitution-the Crown-how do you think that can happen? What model will they have to replace the Crown? What system do you think they should introduce, and is it possible to graft it on to those other countries that have their constitutions modelled on the British one?

Professor Colley: I am not remotely an expert on the Jamaican constitution. What I would say is that, in regard to written constitutions, historically they have sat comfortably with monarchies as well as with republics. These things can be done. One of the most successful, long-lived constitutions was the Swedish constitution, which was a written constitution created in the early 19th century by a monarchy, so the idea that these are all republican, revolutionary devices, historically, is not the case... But it will certainly be interesting to see what happens in Jamaica and-perhaps even more, I suspect-what happens in Australia and New Zealand. Both, I suspect, when there is a change of monarch, may well become republics.

Dr Allison: I am not au fait with the debates about Jamaica at all, or with that development, but clearly it has been done elsewhere-having to introduce a President to fulfil some of the tasks of Her Majesty the Queen; on the other hand, replacing the concept of the Crown with the concept of Government or the state-without too much difficulty. It has certainly been done before. It would not involve insurmountable difficulties. It would involve a change, but not a change that has not been encountered before.

Q166 Chair: You mentioned a stimulus to change or a stimulus to codify. Sheila asked about the situation in Scotland. That is clearly one stimulus. It does not need to be revolution, but then it perhaps needs to be a reason or an excuse. There are another couple around at the moment, the most obvious being our relationship with Europe. Even those of us who would regard ourselves as pro-European feel very uneasy at what can be a slide rather than a consent towards perhaps greater union or not requiring the consent of the legislature for further change, of it being an executive club. Many of us feel that a bulwark against that-I would argue that colleagues who are a little more Eurosceptic might also see a codification of what we can do here as a barrier to that sort of slippage in Europe. That is one.

The second one is in local government. We have a coalition Government who have put great effort into the concept of localism. In politics, many of us have the view that nothing stays the same. You either move on from there or you go back to a default position. What is the next stage for local government? That is a very interesting question. Again, this Committee has discussed the possibility of codifying and entrenching the rights of local government as another potential stimulus. Does that ring bells with your analysis?

Dr Allison: The vast majority of other countries have seen such moments as constitutional moments that make it worth while to go to the great labours of introducing a written constitution. I think Britain is in a club of New Zealand, Israel and San Marino in having an uncodified constitution. In the past, there was a great pride in that exceptionalism, but I don’t think there is the same pride now because obviously, looks apart, the comparative reason for not having a written constitution has largely disappeared. The moments you describe and the stimuli you mention are the sort of thing that in other countries might well lead to the writing of a constitution, apart from some major change of order, which could also happen here in the not too distant future.

Chair: You have almost described incidentally an itinerary for a good Select Committee visit. I should not be facetious.

Professor Colley: It should also be put on record, since we have not mentioned it yet, that we talk about written constitutions as though they are understood concepts and texts. However, written constitutions can do very different things. Some written constitutions are like car manuals: they just put down in writing the existing political system. They are not inspiring, so much as functional and informative. Then there is a kind of mid-level written constitution that does that but also seeks to effect certain changes, either inserting more specific citizen rights and duties, or making clearer the limits on the Executive. That is a kind of mid-way written constitution. Then there are the would-be transformative written constitutions that try to create new nations, or new post-revolutionary Government, something like that. There are many gradations of written constitution. So it is not just a question of deciding if you want one or not. It is also a question of deciding what manner and level of written constitution you might be interested in discussing and taking further.

Dr Allison: There are difficult issues about how that constitution is to be changed. If you make the amendment of a constitution very onerous, very difficult, people will not try to change it because of the big battle involved. Judges might be under huge pressure to reinterpret the constitution, rather than achieve the kind of majorities that are necessary to amend the constitution under certain processes. Those are very difficult and important questions. The value of the constitution is affected by the way it is entrenched, not entrenched or partially entrenched.

Q167 Chair: Just to go back to the European question, is a barrier to illegitimate constitutional development-which often takes place at Brussels-level-to have a legitimate UK constitution, where due process has to take place involving the British Parliament, before powers are transferred or new treaties made?

Professor Colley: You can certainly make that argument. Historically, written constitutions have been discussed and advocated in these islands from a conservative perspective and not just from a radical perspective. For example, when Gladstone was Prime Minister and leader of the Liberal party and wanted home rule for Ireland, some Tory opponents and Tory intellectuals started urging a new written constitution for the UK, because they said, "Look, if we had a written constitution, this madman Gladstone would not be in a position to push for home rule. It would all be down in writing, and we would know where we are." The same sort of arguments could be marshalled for saying that a better anchoring of our constitutional systems, claims, rights and privileges in recognized text might provide a surer barrier against incursions from Brussels and from other external places that we do not welcome. That is an argument that could be made.

Dr Allison: I would agree that it could limit accidental encroachments. Encroachments would end up being more deliberate and more carefully discussed. One would have a strong domestic polity and it would be clearer exactly what its guiding principles were, so departures from them would be very deliberate, or perhaps more deliberate. Again, much would depend on the nature of the constitution and the extent to which you will want to confront those politically difficult issues for all, or almost all, political parties.

Q168 Stephen Williams: Picking up the thread of several questions and answers so far, it seems that for a written constitution to exist in countries other than the four that have been mentioned including us, there has to be other some external event-maybe a colonial power or conquering power such as Britain in Germany, for instance, in the late 1940s-or some sharp event such as a revolution. After such an event, the constitution has been written and imposed by somebody else, usually, and put on top of a nation and its people. Given that we are a mature democracy in the 21st century, if we were to have a written constitution now in Britain, how would it be constructed? Who would construct it and who would give it legitimacy?

Professor Colley: It is often argued that only some kind of crisis can give rise to a written constitution, but this is historically not entirely the case. I think of Japan, which decided in the 1880s that it wanted a written constitution in order to signal that it was now a modern, leading power in the east. It saw a written constitution as a sign of modernity, so the Japanese Emperor said, "Okay, we will do it." They took quite a few years to have one. They sent out parcels of Ministers, lawyers and activists in those days to four centres of different kinds of constitutional expertise: Washington, Paris, Berlin and London. They had meetings with constitutional experts and politicians, gathered together the information and in the end worked out the kind of constitution they wanted. Of course, Japan then was an imperial state, so it did not worry too much about citizen consent.

There are various forms of citizen ratification that you might introduce now. All written constitutions are elitist to the degree that you have to get certain experts involved, such as senior judges, and lawyers and people who know about constitutions, so you have got to get that aspect into the making. Other states since the second world war have tried different strategies for getting members of the general public involved in constitution-making conventions. Various forms of ratification are available. People in the UK know about these strategies, not least because all sorts of lawyers and constitutional experts from this country are still constantly advising on other countries’ constitution making. So there would be no shortage of advice here available, locally, never mind overseas, about the various procedures that might be available if they were wanted, but it can be done.

Q169 Stephen Williams: The Japanese situation is very interesting, but given what I was asking, how could it be done now? In 2012, in Britain, what would your recommendation be? Would constitution writing be exclusively an elite event, or could it be a popular occasion?

Dr Allison: One would presumably try to get something of a mixture of expert ability-from available experts to steering committees and so on-and also some degree of popular representation in the very formation. You identify a very important issue. One of the reasons why drafting a written constitution is a difficult task is that there are difficult procedural issues. As Linda has said, there is much knowledge about constitution making, not least in the Foreign Office, and that knowledge can be tapped to provide procedural answers.

There are three sets of big questions: an obvious set is what you include in the constitution-difficult; there are procedural questions about how you maximise legitimacy of that constitution; and the third set of questions is about how it will be changed-what will be the provisions for amendment? Those three sets are extremely important. They would need independent attention, to some extent, to maximise the legitimacy and the effectiveness or efficiency of the constitution and also its moral value.

Q170 Stephen Williams: Do you think-perhaps this question is for you both-that we are ready to have a written constitution when its building blocks are unfinished business? The relationship between this House and the other House is clearly unfinished business, whereas that between the Senate and the House of Representatives, pretty much, has not changed since 1789. Linda mentioned religion: England has an established Church; the rest of the UK does not. If we wanted to write into our constitution that England has the established Church of the Church of England, given our multicultural society, I would imagine it would lead to all sorts of popular protests and legal challenge, even though the established Church is a fact going back to the 17th century. Do we not have too much unfinished historical baggage to resolve before we can codify a nice, simple rule book and map of a constitution?

Professor Colley: We also have two legal systems in these islands, which is very important. Scots law is different... I suspect that this has been one of the problems and issues in constitution writing here.

But again, I come back to the point that there can be different kinds of written constitutions, and that a written constitution does not have to cover everything. Indeed, it is wiser if it does not try to do so. The Indian constitution, which has been an extraordinary success in many ways, is huge, and there have been umpteen amendments to it, but it frequently gets into trouble. Precisely because it is so huge, people expect everything to be covered by it, and it never is.

If you wanted to move towards a written constitution, you could start with a more economical document on what you wanted to cover, not least if this development were to occur in tandem with the evolution of a more federal UK. In that case, you might want the different component parts of the UK to work out their own matching written constitutions, into which greater detail could come. Perhaps the Church of England could be fitted into an English constitution, in tandem with the overall UK one, but not into the Welsh, or the Scottish, or the Northern Irish documents. Similarly, the Scottish written constitution, if there was one within this UK umbrella, could pick up issues peculiar to Scots law. So it could be done, but certainly, if you tried to write a complete car manual type constitution for the UK, you would drive yourself mad. You would create for yourself all kinds of problems. As always, the best can be the enemy of the better. Perhaps we should just focus on making things better.

Dr Allison: A constitution cannot be identified with the finishing of business. Essentially, to get agreement on a number of issues, there will be instances of constructive ambiguity, where different groups want particular phrases included, because it will be interpreted to the satisfaction of different parties in different ways so as to get consensus. There would be very difficult interpretive issues. A constitution cannot be an end point of development. There are clearly going to be subsequent developments, either through interpretation or through a subsequent amendment. There are also clarity issues; it cannot clarify everything, because it’s just too difficult a task. I think that must surely exist in other areas. That problem is not peculiar to Britain. In other countries, they surely were not in agreement on a range of issues, but none the less introduced a constitution. Where there is agreement, there will be areas of consensus, but also many areas of lack of consensus.

Stephen Williams: The West Lothian question is another bit of unfinished business. We are waiting to hear from the Deputy Prime Minister how he’s going to solve it.

Q171 Chair: Just before I ask Fabian to come in, I have a broad question about the media. If we move towards codification, we will be doing so in a media environment that has never been around in any other previous serious drafting of constitutions in various countries. In the UK, we have a media that is very closely associated with the political classes and the debates around the political classes. It arguably has a chilling effect. People are frightened of the media, and people don’t want to take on issues about public awareness because of being ridiculed by the media. They don’t talk about this down at the Dog and Duck and all that sort of stuff. Is there a sense in which there could be a paralysis, even if the political classes feel that the time is right, because of Scotland, local government and Europe? Could the moment be missed and might leadership be lacking, because of the very dominant impact that the media can have on British politics? Is that a danger?

Professor Colley: That’s a tactical question on which practising politicians will be much more informed than someone like me. I would surmise that, given recent experiences that, the British press has gone through, there might be a little flexibility. But certainly codification could not be done in a highly partisan fashion. There would have to be some kind of cross-party consensus-quite a deep cross-party consensus- before it was even begun. I don’t think this would necessarily be impossible to construct. Circumstances may dictate action anyway, in regard to Scotland, but as we have said, a written constitution can be many things. It need not intrinsically favour either the left or the right. You can make radical arguments for it, and you can make conservative arguments for it. Therefore, potentially, you might be able to construct some kind of cross-party consensus. If you did this, the media would be more responsive in its rather more chastened mood. But those are political tactics, and not for me.

Dr Allison: Similarly, political tactics are not really for me, but I would imagine there is a danger of that. There is also an opportunity because developing a media strategy is a modern political experience. The parties will realise that the media have to be carefully-I would not say managed, but, none the less, media coverage has to be seen as an opportunity, although things can go wrong. One very important thing is to get people involved, and the media could be a path to that. If media interest is encouraged, it could be an opportunity for furthering one of the major aims of constitution drafting, which is some degree of popular interest and involvement. If that were successfully done, the media would be not a danger, but an advantage.

Professor Colley: It may be that the kind of gut-reaction connection between Britain having no written constitution and it being special and different is now much less strong. There is a further reason why we did not have a conventional written constitution. As I have said, the US constitution only appears in the 1780s. In the late 18th century, throughout all of the 19th century and up to the second world war, Britain was incontestably a great power. It was quite easy, therefore, for believers in the existing constitutional system to say, "Not only are we a great power, but we are a great power because of the un-codified nature of our constitution. This is part of what makes us distinctive." Indeed, there was a degree of thought in Britain that, whereas other countries relied on their written constitution in part to proclaim their distinctiveness, it was our lack of a written constitution that became the mark of our being special and distinctive.

Inevitably and increasingly, post-war, some of this complacency has been qualified. If encouraged by information being put out there, it might be that attitudes in the UK might prove more plastic and more creative than some people believe. I would hope so.

Q172 Fabian Hamilton: Judging by the comments of a previous editor of The Sun to the Leveson inquiry, I wonder whether the press is truly chastened by recent events, but that is not for discussion today.

I have two questions to which I want to return. The Chair touched on one earlier, but the first is on the relationship between Parliament and a written constitution, should that ever happen, a codified constitution or even a federal constitution, which I think sounds very attractive. At the moment, as I understand it, Parliament is the source of all authority in the nation. Correct me if I am wrong. Leeds city council, which is where I am an MP, derives the ability to hold elections, carry out services and appoint officers because Parliament has granted that power, originally to the corporation of Leeds. The same is true for all the other local authorities. The current debate on Scotland is a case in point. The fact that there is a devolved Scottish Parliament is because this Parliament gave that power to the Scottish people by an Act of Parliament.

Am I right in thinking that the US Congress is subservient to the document called the constitution? If we have a written constitution of any sort, as I assume most other countries do, certainly the US does, would that be the case here? Is it necessarily the case that once you establish a written constitution, that becomes the source of all authority for all executive and administrative power rather than Parliament?

Professor Colley: That is a very important and complex question to which I cannot do full justice in a short answer. John will have more things to say about it.

The doctrine of parliamentary sovereignty is terribly important, and it became even more important with Blackstone who made the famous statement in the late 18th century, as I am sure you know, that Parliament could do everything except make a man a woman or vice versa. Apart from that, it was omnipotent. That sounds great written down; very funny, very pithy, very clear-cut. But it was never that clear-cut, in fact, because there were some legislation-though what on earth is going to happen to that is another matter-for example, the Treaty of Union with Scotland in 1707 puts a limit on parliamentary sovereignty in that regard, saying, "This stays." And even when Blackstone wrote, not everybody agreed with him. Moreover, as has become clear in these discussions, no written constitution says everything. An awful lot is left out. Large parts of the US constitution are not written down. There is always a huge amount left to discretion.

Yes, there would have to be some adaptations in the theory and the practice of Westminster. I don’t think it would be as dramatic as some of the purist arguments suggest because, in practice, there has always been a lot more discretion, a lot more compromise than the constitutional theory on the page might suggest. That would be my take.

Dr Allison: Again, an important question seeing that parliamentary sovereignty was the main traditional, legal reason why there has not been a written codified constitution in the United Kingdom. Why introduce a written constitution that would interfere with parliamentary sovereignty? Parliament would become a subordinate legislature, to use the old-fashioned wording, which would be unfortunate and unacceptable.

There has been a change in legal attitudes to parliamentary sovereignty to some extent. Academic lawyers are more ready to see other values in play, apart from the popular sovereignty values, which are expressed through subservience or acceptance of parliamentary sovereignty. That the popular will is expressed through its representatives is extremely important, but there are other values to protect minorities from encroachment by the majorities, and there has been a greater recognition that those values need full recognition. Parliamentary sovereignty is a very important value, but it is not the only value at stake.

Q173 Fabian Hamilton: Let me put this to you. In a written constitution, does not the will of the people expressed through elections of representatives to a sovereign parliament get subsumed by the constitutional court that has the job in most constitutions that are written of interpreting that constitution? It is not Parliament that interprets it, and dirty politicians who are looking for votes. It is actually a constitutional court that is neutral and that can therefore look at the arguments put forward by lawyers-cogent rational arguments-about whether it should be interpreted in this way or that.

Is not now perhaps the time for written constitutions, as politicians are held in the lowest regard that they have been for a long, long time? Would not the public actually rather see a document that was above party politics that gave authority to the decisions that are made in their lives rather than politicians who do it for all the wrong reasons, so they would say?

Dr Allison: I would say that that is a possibility. There could be a greater readiness to rely upon the courts in the situation. I am wary of too much judicial involvement. I think it is a feature of a number of modern constitutions to have non-justiciable aspects to those constitutions. Constitutions can play a legal role, but they can also play an educative role, a symbolic role as well. The role for the courts provided by the constitution is another difficult issue, which would need to be confronted with a great deal of care. I would not want to convert all political disputes into legal disputes. The courts have particular institutional and procedural competence in dealing with issues. I think that it would be unwise to entrust disputes that have a very large public interest aspect to the courts to resolve.

Q174 Fabian Hamilton: In countries with written constitutions, do the Parliaments actually amend those constitutions by two-thirds majority or do the people do it through referendums? How does that work? Where there is a dispute, who actually resolves that dispute? It is surely the courts. It is not the politicians, is it?

Dr Allison: In the US, there is a greater judicial involvement than in a number of other constitutions. I think it just would depend upon the particular provisions and the extent to which the courts become involved. I can think of constitutions that may or may not involve the courts in the electoral process or in varying ways and varying circumstances. It would all depend upon the provisions of the particular constitution and what was decided was proper for the courts to do. I think that full juridification of the constitution would be unwise. It would require courts to do what they are not particularly well-suited to do.

However, there are certain instances where one would want the courts to be involved, as you say, and I think the public might well accept a greater judicial role than has formerly been thought about. Then one comes into popular human-rights debates, and there you find a diversity of views and considerable controversy.

Q175 Fabian Hamilton: Can I continue just on a slightly different tack? I mentioned local government earlier. In France, for example, the fifth republic’s constitution clearly defines the role of central and local government-where central government ends and where the responsibilities and duties of local government begin. That is actually quite good, because it means that, generally speaking, there are higher turnouts at local elections and that people take more responsibility for what is done locally, because it is very clear what their responsibilities and duties are.

In the United Kingdom, all governments, emanating from the authority that they are given by Parliament here, have brought it on themselves actually to reign in the powers and the duties of local government, so we have seen local government become less independent and less able to make its own decisions for the people whom it represents or that are represented within that local authority. How would you see a UK constitution, whether federal or not, defining that role? Is it important that local government is almost a sovereign state of its own? Leeds city council would argue that it is a big enough area to be able to raise its own taxes and spend the money of its people thus raised according to local plebiscites and elections that take place every year. Councillors are perhaps more accountable than Members of Parliament, because they have to return to the ballot box year in, year out. What do you think of that? Is a better balance between local and national decision making something that a codified or written constitution could achieve for us?

Professor Colley: I entirely agree. I think that it is a lot of work, and it is persistent work. I do not think that that is necessarily an argument against it. Jefferson said that he did not think that any constitution should last longer than about 18 years, because societies change, particularly dynamic societies, and these things need to be talked about and developed over time. However, picking up on your earlier point, it is not just that the different areas of authority and responsibility can be usefully set down and made more accessible in some written constitutions, but also the responsibilities and activities of politicians and agents of the state.

You could argue that one way of raising-and it should be raised-public understanding and respect for Members of Parliament would be for some kind of constitutional text to set down what they are supposed to do. Then, I think, people would have a clearer idea of just how hard Members of Parliament work and what they do in the state. Again, to put it mildly, this is not necessarily part of everybody’s pool of knowledge.

Dr Allison: If I had to phrase it in terms of a question of balance, I would see two principles that are vying for attention here. The one principle is essentially a kind of subsidiarity, to borrow European language-it was originally the language of the Church, I think-where you want decisions to be made as close to the point of impact as possible. If they are close to the point of impact they will therefore be better decisions. On the other hand, there is a very strong principle, the principle of citizen equality or subject equality across the country. You see newspapers talking about a postcode lottery: one’s rights are going to vary with where one happens to live in terms of entitlement to services, etc.

These are both valid principles. A constitution might well be a way of clarifying that relationship, of achieving some degree of consensus that is acceptable and is fully conscious of those two principles, which to some extent are pulling us in different directions, and of achieving a satisfactory answer to it. In France, which you raised initially, they have a strong history of centralisation, and partly-from a history of centralisation-their recognition of communes or local authorities was perhaps a corrective to avoid that going too far. Again, if you have a strong impetus to centralisation, which would again tend to emphasise the equal relationship of citizens to that central authority, it probably needs a corrective-a proper recognition of some degree of subsidiarity in the regions. Local government is not something I have worked on, but I think it is a very important area.

Professor Colley: In a sense, we would be reverting back to what worked quite well in the past. There was a lot of discussion in the 19th and early 20th centuries of local Parliaments-that was the term used-and up to about the 1870s more tax revenue was determined by the localities than by central Government. What really changed things and what we have still not recovered from is the impact of the two world wars, which led to a centralisation of government here of a sort that we did not have before. Arguably, this still needs rolling back, so that we get closer to the local autonomy that used to work reasonably well.

Q176 Chair: Just a quick question about consent and the importance of consent, which I think Simon, Stephen and other colleagues raised. Perhaps the reason why that is in my mind at the moment is, not least, Scotland, where people are claiming an electoral mandate is consent for constitutional change or the date of a referendum, which is an arguable point.

Probably less arguable is what is happening in Hungary, where one party achieved an unexpected overall majority and has written a constitution which some argue is entirely in their own shape and form, and does not respect broader political and social sensitivities. That is quite a current and important issue.

Do you have any views on that and how, if we go along this route, we might establish a broad-based consent on what, as Simon rightly points out, is not exactly an issue that people are talking about over the water fountain in the office or whatever the phrase is?

Dr Allison: Do you mean an ongoing consent of some sort of popular involvement in the institutions of government apart from participation at election time? Is that what you meant?

Q177 Chair: An understanding of the need for a written constitution and an understanding of the need to give and take within a constitution, so that it does not just represent your view but represents the view of the broader society and is tolerable and tolerant as a document.

Dr Allison: One could have a statement of responsibilities. The question is the extent to which you make that justiciable? I think probably large parts would not be justiciable but, none the less, in view of the educative value of a constitution, it might well be wise to include such a statement, merely so that people at school realise that if I am a citizen or subject I do need to be aware of the kind of community I am part of, the requirements of that community and my relationship to it.

The issue of ongoing popular involvement or consent is a more difficult one-how to channel it in a meaningful and representative way-and I am not sure that many devices have been developed, certainly that I know of. I think Professor Gordon has some proposal, and he might have raised it. Was that an issue raised when he came before you, which he emphasised? I had a brief look at his suggestion. He relied on a South American suggestion on what can be done; it was a sort of citizen committee. But the question is whether that should be added to the numerous other kinds of committees. And, again, how would you ensure the changing and representative nature of that committee that you introduce to play a certain role to advise politicians of what the public feeling is? You still have representative problems and problems of changing membership of that committee, but none the less, I do not know his proposal in detail. I think it is a worthwhile issue or concern, because politicians are elected once every seven years, or whatever the case is in different jurisdictions, and are going to have a long period between elections.

One could also have provision in the constitution to ensure the role of pressure groups and some degree of control of that, to allow for some sort of popular participation both through pressure groups and through civil society more generally. I am not sure how that would really amount to more than freedom of association protections, which would commonly occur in constitutions. But I think it is an important issue to be taken into account.

Professor Colley: There is a huge literature on this. One of the oldest mechanisms for ensuring some kind of consent is the US system in the 1780s: an elected constitutional convention, or a partially elected constitutional convention, as it was in that case. For the early 21st century one could imagine a constitutional convention where certain recognised experts would form part of the personnel, but where the rest of the delegates would be elected from the different regions, constituencies and interest groups, so that this would be a constitution of the people. That is very important. Of course, there is always an element of myth involved in the idea of "we, the people". But having some kind of elected constitutional convention to help draft and work out these texts would be very important as a way of beginning the struggle and campaign to win wide enthusiasm, interest and consent.

Chair: Having written so many constitutions for other people, it is not probably beyond our wit to be able to handle writing one for ourselves.

Q178 Paul Flynn: Can I follow up Stephen’s point about Churches? Is there not a lesson in what happened with the disestablishment of the Church in Wales, where F.E. Smith, as the leader of antidisestablishmentarianism, gave us not only the longest word in the English language, but a good lesson to follow? He said that the disestablishment of the Church in Wales is a Bill that will shock the conscience of every Christian community in Europe. There was hyperbole about in politics-we have not invented it in our generation-and as G.K. Chesterton said in a poem, talk about the Church and steeples, "And the cash that goes therewith: But the souls of Christian peoples… Chuck it, Smith." Is there not a lesson in there? We have part of our constitution now, where the Prime Minister may not believe in God or be a Christian, but actually is responsible for appointing the head of the Church of England and the whole Anglican community. When there is an absurdity and an indefensible situation like that, public opinion will go along with it, and change and reforms are possible and probably popular.

Professor Colley: I think all things are possible with new initiatives. But I come back to the point that it is probably wise not to overload the donkey, not to put too much in a new written constitutional text or texts, but it might be good to seize the opportunity to let certain things go that have survived from earlier times. This would have to be worked out. That would be what a constitutional convention would have to debate. The consensus to make the document would have to be hammered out. It would not just be just a case of drafting. It would be a matter of reaching sufficient agreement among a group of what should be largely elected people as to what they will wear, what they will accept and what was going to work. How such discussions might evolve in the UK, I do not know. It would be interesting and it would take a certain amount of time.

Q179 Paul Flynn: Dr Allison, you made a point in one of your answers about the fragility of the monarchy in terms of personalities.1 There was a fascinating lecture given by Robert Rhodes James, who was a Member of this House and a serious historian. He said that when the skids were under Mrs Thatcher, there was great fear in the Conservative party that she was going to call a general election. The Conservative party, the Cabinet and Parliament could not have stopped her. The only person who could have stopped her was the monarch. Knowing the personality of the monarch, who has been involved with a whole series of Prime Ministers, very likely the monarch would have had the strength of character to ensure that a Prime Minister did not act in her own interests, but acted in the country’s interests. The difficulty there is that, almost certainly, successors of the present monarch, like her predecessors, will not have that strength of personality. Do you think there is a fundamental weakness there? We have depended on the Queen, who has been around for most of our lives, and there will be problems in future-in Australia, as you mentioned, but also elsewhere.

Dr Allison: Yes, there are certain limited functions that are fulfilled by the monarch, particularly in regard to the calling of elections in unusual circumstances: when an election is called for party political advantage, and when perhaps there is a national crisis or something happening where an election should not be held. The present monarch is obviously very experienced in dealing with her own advisers and would probably reach a very good decision, one could say, but that would not necessarily be assured in the future. The classic argument would be that one should therefore think of an alternative, in view of the fact that the situation might not be the same at some point in the future. I think that is purely logical.

There is no particular reason why the solution that is currently available is going to be available in future for those limited functions. I do not want to use the word "crisis" too easily, but in the case of a hung Parliament and certain situations, the monarch could play a greater role. This was somehow sorted out last time, but it would not necessarily always be the case, in which case the monarch might play a greater role than Her Majesty apparently played this time round. I am not quite sure what that role is. Part of the problem is that one does not really know what happens. If Her Majesty were to rely on her advisers, I am not quite sure what role they would play. That would also make me slightly concerned-what sort of advice was coming to Her Majesty.

Professor Colley: I think that conscientious and fully committed constitutional monarchs often find a written constitution helpful, since it ensures that they do not find themselves in an embarrassing, unclear situation where the initiative seems to be with them and they do not want it. There was a recent case in Luxembourg where the Grand Duke, who still technically has considerable powers, came to the legislature and said in effect, "Technically, I have the power of veto over these laws. I do not want these powers. Make the change. I want it clear that this is nothing to do with me." Having greater clarity might not just be convenient for citizens. It may also be useful and more comfortable for crowned heads. They know where they are.

Q180 Paul Flynn: Professor Colley, you have referred to ill-digested constitutional change enacted by the previous Government. The devolution changes have come in piecemeal and painfully with LCOs and so on. It is a very untidy system, which seemed to indicate the reluctance of central power to release any power down the M4 or up to Scotland. I believe that the opposition to devolution in Wales was from people who said that it was a slippery slope. The support came from people who were also convinced that it was a slippery slope, because that is what they wanted: a slippery slope to independence. Perhaps you can tell us why you are critical of what the previous Government did and how we can do it in an improved way in the future to ensure a smooth run, if independence is going to come to Scotland and Wales.

Professor Colley: It is this kind of piecemeal tinkering tradition. Vernon Bogdanor has written about this far more learnedly than I am able to discuss it. There is always a temptation in a crowded parliamentary schedule, with the Executive never wanting to concede more power than it has to, to think of small piecemeal alterations, which can seem to be the easy way to do it, or even the only way to do it, but they can store up more trouble. In this case, introducing devolution-which I favoured at the time, like so many others-without working out a federal structure for the UK and without having some kind of more comprehensive written text, while it seemed good at the time, was storing up issues, because devolution is not a one-off act. It was always going to be a developing phenomenon. Therefore, by not systematising it, you lost control, or any possibility of having any kind of control, of how this process was going to evolve. In fact, you did not save over time. It was not the most convenient thing to do; it just seemed so at the time. That would be my instinct.

Dr Allison: Essentially, considering constitution drafting, there is a range of issues out there, all concerning reform, which particular parties or particular groups might be in favour of. The question is: what reforms can feasibly be confronted in a process of constitution making? It needs to consider them, but I think that in reality what will happen is that, if there is serious disagreement, if in doubt, they will be left out, or, if there is sufficient lack of consensus, there will be some sort of phraseology that will be so broad, it will just defer the sorting out of that problem either to political interpretations of that phraseology, or, ultimately, legal interpretations.

Not all the problems can be feasibly resolved in constitution drafting. Certain big ones can, so that serious problems are not deferred for later, but the range of problems is so great. I do not think that we would be peculiar in having many issues concerning our constitution. I am sure that similar to other written constitutions, many aspects of the constitution will be subject to question. What develops outside those constitutions will also be subject to question. Somehow a line will have to be drawn between what is politically feasible in being handled such as to achieve the kind of consensus that is needed in the constitution draft, which is usually a very substantial consensus.

Q181 Chair: I just wonder, Linda, whether when we consider codifying or writing a constitution in a place that has the most over-concentrated Executive power in western democracies, the art of constitution writing is the art of losing control, or at least reallocating control.

Professor Colley: I certainly think that one of the stickiest parts of any new constitutional text here would be defining the Executive power and defining the powers of the Prime Minister. That would be challenging, but very important.

I keep coming back to this issue of the need for more constitutional information, and one thing I forgot to say earlier is that whenever I enter the House of Commons as a visitor, I pass through Westminster Hall, a glorious building, which is completely empty and very cold, and contains only a café and some public toilets as well as some very great monuments. I cannot really imagine any other polity that would not capitalise on that space. We could rename it the People’s House. We could have there the history of our democracy. We could have replicas of some of those great texts that have allowed for liberties and rights, as a way of helping access to constitutional information burgeon. So much more could be done.

Some years ago, I guest-curated an exhibition for the British Library, which unfortunately they decided to call "Taking Liberties"; that was not my choice of title. It was an exhibition of constitutional texts from all parts of these islands, from Magna Carta onwards. Contrary to all the predictions that no one would come, we got the highest attendance of any British Library exhibition up to that point. Visitors were asked at the end to write down their comments, and the comment that we got over and over again was: "Why aren’t these kinds of documents on permanent display? I brought my class- (or my son, daughter, niece, or nephew) and they were thrilled. Why can’t we see these things normally?" You have got the space and the potential, as a way of leading to a written constitution or at least to an amplification of constitutional knowledge. Some kind of permanent exhibition, which was open to the people in the People’s House, would be great.

Paul Flynn: I am sure you will be delighted to hear that there is going to be an addition to Westminster Hall in the shape of probably the thousands of depictions of royalty that occur in these palaces, and you will look hard for any representation of the Tolpuddle martyrs, the Chartists, the Peterloo massacre or any parts of the struggle for democracy that has taken place here.

Stephen Williams: I went to that exhibition at the British Library and thought it was absolutely fabulous. I gave the book, which was wonderful as well, as a Christmas present to all my staff-I am not sure whether they still treasure it. Some of us may want to pursue the suggestion that you have made. There is now a small, permanent exhibition in Westminster Hall, but it is more about the architecture of the building than what has been done within its walls over the past thousand years.

Q182 Chair: There are occasional things there, but they are quite half-hearted and not of the sort of resonance about our democracy that I think Linda was referring to. I may ask my team to craft a letter and see if we can take that suggestion forward more urgently than the drafting of a written constitution. I am going to wind up but if there are additional things that you would like to say, please feel free to do so, because we may not have covered everything that was on your mind.

Dr Allison: This is a very minor point. I was pleased to see the school trips coming to Parliament. That is an involvement.

Q183 Chair: I think that is excellent. We should always celebrate the history, but it needs to be an inspiration for the future rather than a dead-weight that traps us in aspic. As for the concept of parliamentary sovereignty, I look forward to the day that we get it in this country. At the moment we have Executive sovereignty. I had better not be too personal in my comments as I am meant to be chairing the meeting.

Are there further things, Linda and John, that you would like to tell us before I wind up?

Dr Allison: Finally, I would just amplify what you said. History must not be seen as a dead-weight. Essentially that is why I began by presenting the reasons why there has been a lack of a written constitution in the past. The question is: are those reasons still applicable? In considering constitutional reform, that is always the way one should approach historical understanding-one leading approach, anyway-to be aware of where particular features or, in this case, the absence of a constitution, come from, and then reconsider whether the reasons for them are still valid.

Chair: On behalf of the Committee, thank you both very much. It has been a fascinating and enlightening session. Feel free if there are further thoughts to drop us a note, and we look forward to receiving those ideas. For now, thank you both for a tremendous session. We appreciate your attendance.


[1] Note by witness (Dr Allison): My Point (Q165) was not that the monarchy is fragile but that there are no insurmountable obstacles to introducing a President to fulfil certain functions currently fulfilled by the Monarch.

Prepared 28th January 2012