By Oliver Pridmore
Reading an article on the UK constitution may appear to be such a bland way to invest your time that you’d rather spend it thumbing through the pages of Erskine May.
But, what if an article on the UK constitution was underpinned by a war of words between John Bercow and his predecessor from the 1990s over the forthcoming state visit of Donald Trump?
Luckily for you, such a war of words has indeed taken place. The row centres around comments made by John Bercow in 2017 when he said that he would be “strongly opposed” to US President Donald Trump addressing both Houses of Parliament during a state visit to the UK.[
After Downing Street announced on April 23 that Donald Trump would indeed be coming to the UK on a state visit,[ Bercow’s comments came to the fore again, leading his processor, Baroness Boothroyd, to say that he had “no authority” to make the comments.
Speaking to the Daily Mail, Baroness Boothroyd said: “No Speaker should indulge himself in personalities and whom he approves or disapproves. Speakers must always remember they are the servant of the House and not it’s master.”[
But, very soon after making the comments, Mr Bercow defended making them.[
How does all this relate to the UK constitution?
Well, put quite simply, rows over what is and is not in the Speaker’s power would not occur if those powers were set out plainly in a single, constitutional text.
But, like many other countries, the UK does not have a written constitution. That is to say, it doesn’t have a single, authoritative constitution as the United States does.
Instead, the UK constitution is drawn from numerous sources including common law (when decisions historically or contemporaneously made by local judges are elevated to a national plane), conventions (well-worn practices that have become part of the constitution through nothing else other than repetition), treatises (works of legal authority by anyone from constitutional historians to political scientists, such as the aforementioned Erskine May) and treaties (such as the 1945 Charter of the United Nations).
OK. OK. Back to the row…
Back in March, Bercow stated that Theresa May could not keep bringing back her Withdrawal Agreement to the House of Commons without substantial changes being made to it.
The legal text he cited as justification for saying this? You guessed it – Erskine May.
However, as you may have gathered, not everyone was on Bercow’s side in this case in terms of his constitutional power to make this judgement.
Writing in The Spectator at the time, columnist Rod Liddle thundered: “Precedent and formality of procedure, as tirelessly delineated by Erskine May, had hitherto never appeared to trouble the hilariously bumptious and self-publicising Speaker.”[
Stripping back the more personal tone of Liddle’s argument here and you can see the general problem he identifies: without a single, authoritative text, people such as John Bercow are free to decide which bits of convention and precedent they wish to deploy at any given time, notwithstanding any criticism it may spark.
But it’s not all bad, and many hail Britain’s unwritten constitution as a beacon of a flexible democratic system.
As James Morrison writes in his Public Affairs for Journalists book: “[The UK constitution] is flexible enough to be amended or supplemented by Parliament, without any of the torturous procedures required whenever the slightest break with tradition is sought in the United States, France, or Ireland.”
Basically, our constitution can adapt to the changing values of wider society without too much legal wrangling.
Morrison goes on to say: “Conversely, unwritten constitutions have the disadvantage of provoking as much wrangling among lawyers, politicians, and historians as they ever circumvent.”
Indeed, arguments when amending a constitution focus around a specific policy area, and such debates happen already on a daily basis within the Commons chamber.
But, debates on an unwritten constitution centre on whether someone has the power to do something or not and with no legal text to answer this plainly, these debates can rumble on for much longer.
Pros and cons aside, with the possibility of us leaving the European Union still persisting, and the consequential increase in the UK Parliament’s legislative power that Brexit would bring about, whether the public can bear an increase in such debates is, ironically, a matter for debate.
However, when they’re as entertaining as a war of words between Boothroyd and Bercow, who knows which way public opinion may sway in terms of maintaining an unwritten constitution against implementing a written one?
Where’s my copy of Erskine May?