Highbrow Mother Goose

Most historians​ nowadays are suspicious of ‘constitutional history’, in part because they’re uneasy about its associations with the Anglocentric arrogance of what is sometimes called Whig history, a self-satisfied celebration of England’s relatively smooth progress towards liberal outcomes. The historical reaction against Whig triumphalism also exposed the intellectual limitations of constitutional history as a means of apprehending the past. Between the late 1920s and the 1980s several waves of historians showed that constitutional history lacked genuine explanatory power. Around 1930, Lewis Namier highlighted the self-interested – rather than statesmanlike – motivations of 18th-century politicians, while Herbert Butterfield pointed out the present-minded distortions of the past found in grand constitutional narratives. Later, K.B. McFarlane applied Namier’s insights to the 15th century, diverting attention from the constitution to the political elite and the operation of clientage networks. From the 1970s early modern revisionists such as Conrad Russell and John Morrill showed that the English Civil War did not arise out of a long-running constitutional dispute centred on the rise of Parliament. Parliaments (the plural is significant) served as points of contact between the centre and the counties and were largely dominated by humdrum local concerns. For much of the 17th century an ugly anti-Catholicism, rather than a high-minded concern for constitutional proprieties, fuelled controversies about governance. The constitution has also been shunted to the margins of 19th and 20th-century British history. The superficial facts of parliamentary reform and democratisation notwithstanding, Maurice Cowling and his acolytes cynically laid bare the regime of ‘high politics’ that continued to operate within a narrow governing elite. Was constitutional history a highbrow Mother Goose, its reassuring tales conspicuously failing to explain how and why things really happened?

A minority of historians recoiled from this focus on politics as process, which seemed to them to be accompanied by a near total neglect of constitutional substance. Several historians of the 17th century emphasised the very different understandings of England’s governing institutions advanced by theorists of absolutism and common law antiquaries. A form of legal history that encompassed constitutional themes continued to flourish among medievalists, and a group of 15th-century historians, led by Christine Carpenter, advocated a ‘new constitutional history’ addressing the structural frameworks that underpin political action. In their concern with political culture and expectations about governance, these scholars’ approach diverges significantly from traditional constitutional history, and indeed from what academics in law and politics still understand as its primary agenda. This matters, because the peculiarities of the British constitution mean that it requires the combined input of the disciplines of law, politics and history – each with its own priorities, sensitivities and hinterlands of learning – to make sense of its practices. But the field has been vacated by most historians.

It’s no surprise that the co-editors of The Cambridge Constitutional History of the United Kingdom, Peter Cane and Harshan Kumarasingham, are an academic lawyer and a political scientist. Nevertheless they steer away from stale orthodoxies and insular complacency, interrogating instead Whig assumptions about English exceptionalism. Tamar Herzog questions the supposed gulf between English customary law and the Romanised legal systems of early modern Europe, arguing that each side of the contrast is a caricature. Ewen Cameron accounts for the ‘smugness’ that radiated from 19th-century British constitutional interpreters, writing that Britons contrasted their enduring ancient constitution with the unstable history of revolutions, counter-revolutions and coups d’état in France since 1789. The outbreak of the American Civil War in 1861 pointed up a further distinction, between the rigidity of America’s codified constitution – unsuited to absorbing change without convulsion – and Westminster’s looser, more flexible arrangements, which seemed capable of translating potential revolutionary threats into modestly reformist legislation.

The volumes avoid the notion that there is a single constitutional orthodoxy, or indeed a clear endpoint of constitutional evolution. The standard picture was drawn by A.V. Dicey in his Introduction to the Study of the Law of the Constitution (1885). Parliamentary supremacy was untrammelled, and no statute was more fundamentally entrenched than any other; in addition, the rule of law was supplemented by non-legal conventions, which served as a useful grout in the interstices of the constitution. But as The Cambridge Constitutional History shows, the Diceyan constitution, though remarkably influential for much of the following century, wasn’t permanent. It had been preceded in the early modern era by a fog of ambiguities: over whether the courts had the power to ‘control’ unreasonable laws; about the nature and limits of different kinds of royal prerogative, ordinary and absolute; and about whether the constitution embodied fundamental law. A somewhat bruised Diceyanism was succeeded at the very end of the 20th century by a semi-codified constitution (embodied in the Human Rights Act 1998 and the provisions for devolved legislatures in Scotland, Wales and Northern Ireland), and then, after the Brexit referendum in 2016, by what Robert Crowcroft describes as a ‘contest’, ostensibly between proponents of popular and parliamentary sovereignty, ‘to make up the rules under which the country was governed’, though in truth the constitution provided ‘little more than a fig leaf’ for naked adversarial politics.

It’s unclear what comes next. Ironically, Dicey remains highly relevant, by way of his seemingly un-Diceyan fascination with the idea of the popular referendum. Some laws are now recognised to be so fundamental, Vernon Bogdanor suggests, that they require authorisation ‘from the people acting as a third chamber of Parliament’; but, in lieu of an ‘agreed and shared understanding of the British constitution’ in England, Scotland, Wales and Northern Ireland, he wonders whether we now have ‘four British constitutions’ rather than one. The volumes also raise questions about the reason Dicey’s work enjoyed so much purchase in interpreting the British constitution for a 20th-century democracy. When its first edition was published in 1885 women were denied the vote and around 40 per cent of the adult male population remained unenfranchised. Full democracy came only in 1928 – six years after Dicey’s death.

Similarly, ironies in the unfolding history of ministerial responsibility wreck our expectations about the consistent evolution of core constitutional principles. The Act of Settlement (1701), which ensured the Hanoverian succession, also contained provisions for the exclusion of royal officeholders and pensioners from the Commons. The clear intention was to prevent the monarch’s senior officials from controlling the legislature. But this provision was repealed in the Regency Act (1705), which made it possible for MPs to become ministers. This sounds like a minor wrinkle, but as the essays by Michael Gordon and by Rose Melikan show, it had a significant effect on our constitutional principles. An emerging principle of ministerial exclusion was turned on its head and eventually became our notion of ministerial responsibility. Instead of the legislature scrutinising what was in effect an external executive, a new situation developed, with ministers present in Parliament and accountable to it. We shouldn’t downplay the role of sheer accident. Because of his limited English, George I, who acceded to the throne in 1714, tended to skip meetings with his ministers. Royal attendance at cabinet declined – though not precipitately – over the course of the century, and cabinet gradually became a corporate body distinct from the monarchy.

The most significant departure from the old orthodoxy here is the editors’ remapping of this most stubbornly Anglocentric of fields. They have commissioned essays on a plurality of jurisdictions and legislatures, not just Scottish, Irish and Welsh, but also the wider empire and Commonwealth. Not that there is anything straightforward about Westminster itself, which, as Gordon notes, has enjoyed multiple identities: as the English Parliament, the Parliament of England and Wales, the British Parliament, the imperial Parliament, the UK Parliament.

Anglocentric chauvinism was long hardwired into constitutional interpretation. According to Stephen Tierney, the constitution’s Whiggish interpreters bear considerable responsibility for the current predicament of the United Kingdom. There has been no serious attempt to understand the 1707 Treaty of Union as a fundamental ‘transformation’ rather than merely a geographical ‘extension’ of the English state. Instead, the post-1707 British Parliament is casually assumed to be ‘the inheritor, or indeed the same body as its English predecessor, essentially incorporating the Scottish Parliament’. Tierney reminds us that the modern Scottish challenge to the Diceyan state has taken two very different forms: most obviously the secessionist claim to Scottish independence, but also the project to redescribe the UK, shorn of a constricting doctrine of legislative supremacy, as a ‘plurinational’ union-state. Yet despite devolution and the referendum scare of 2014, unitarists – English nationalists as well as ‘muscular unionists’ – continue to treat the UK as England writ large.

Just as generations of constitutional scholars blithely ignored the uncomfortable reality of an Anglo-Scottish treaty-based state, so too they passed over the claims of non-European ethnicities within the empire. New Zealand presents a curious example – again featuring neglected treaty-based rights – where apparent British recognition of a non-Western civil society was combined with sharp practice. The Treaty of Waitangi (1840) between the indigenous Maori and the white settlers of New Zealand existed in two versions, English and Maori. But, as Kumarasingham notes, they don’t quite say the same thing. The Maori version suggests that local chieftains were not surrendering their sovereignty or possessions to the British crown, merely acknowledging its ‘distant suzerainty’.

Crafty, underhand dispossession was an integral feature of the constitution’s imperial past. But this ugly history was also flecked with ironies of another kind. The empire was both a scene of hypocritically despotic practices and one of constitutional creativity: Kumarasingham reminds us of Britain’s ‘seemingly inexhaustible record in writing constitutions for everywhere except home’. This wasn’t always a straightforward matter of imposition. Kumarasingham is an authority on what he calls the ‘Eastminster’ phenomenon: the ways former subaltern components of the British Empire in Asia adapted Westminster-style parliamentary forms when building new postcolonial states.

The most original group of essays here – Asanga Welikala on conservatism; Emily Jones on liberalism; Stephen Sedley on socialism; James Mitchell and Alan Convery on unionism; and Michael Keating on nationalism – deal with the ways political ideologies interact with the constitution. Sedley points to longstanding tensions on the British left between the ‘sectarian pipe dream’ of an unconstitutional revolutionary pathway towards socialism, and the prosaic reality of a ‘legitimist’ socialist party operating within constitutional norms to bring about a measure of social change. The civil service – which the right now demonises as part of the leftist ‘blob’ – conventionally functioned, Sedley notes, as a brake on ‘transient parliamentary majorities’ set on radical, irreversible change. This deep state bureaucracy has held dual loyalties, both to the elected ministers of the day and to the established ‘system of government’. In parallel, Welikala’s essay describes the traditional dominance within British Conservatism of capacious accommodation, undogmatic ‘moderation’ and the acceptance of ‘altered arrangements after the fact’, rather than outright reaction. He also challenges the received notion that Conservatives saw their role primarily as defending particular institutions – the Church of England, the monarchy, the privileges of the aristocracy – and argues that Conservative constitutionalism instead focused on process, on the tempo and character of change. An ‘incrementalist’ approach to ‘constitutional evolution’ trumped substantive commitments. But changed conditions – the constitutional illiteracy of populism, the peddling of radical free market panaceas – now leave little scope for a tinkering, car-maintenance-style conservatism.

The tradition of undogmatic moderation can be traced back as far as Richard Hooker’s late 16th-century treatise, Of the Laws of Ecclesiastical Politie; a sharp reminder that the matter of the constitution has as often as not concerned the relations of church and state. The Cambridge Constitutional History devotes two chapters to religion, and it features prominently in several others, but the editors could have gone even further in recasting this history in ecclesiastical terms. After all, although British constitutional history appears to make sense as a secular story of liberty, law and governance, this coherence is misleading. Our ancestors saw the world differently; their identities were not merely unsecularised, but primarily religious, and constitutional issues carried a strong ecclesiastical inflection. Questions of sovereignty were couched in the languages of praemunire (the offensive presence of papal jurisdiction in England); Erastianism (the subordination of the church to the crown-in-parliament); and clericalist doctrines concerning the equality of spiritual and temporal jurisdictions, which were espoused by both English high churchmen and Scots Presbyterians. When a recognisably proto-liberal polity emerged around 1688 – with parliamentary government and a measure of toleration in England for Protestant Dissenters – it did so largely in reaction to a century of aggressive Roman Catholic Counter-Reformation. But even after 1800, as Cameron’s essay reminds us, ecclesiastical frictions within a multinational United Kingdom containing a ‘plurality of faiths and systems of church government’ still gave rise to ‘fundamental constitutional issues’. Anti-Catholic symbolism remains enshrined at the heart of the constitution, and the controversial decision of the House of Lords in Percy v. Church of Scotland in 2005 – when it ruled that Helen Percy, a defrocked Presbyterian minister, could seek recourse to an employment tribunal – appeared to undermine fundamental guarantees given to the Kirk in the Church of Scotland Act (1921). In a multi-faith, post-Christian society, early modern questions about the relations between the spiritual and temporal realms – including the nature and status of blasphemy law – seem likely to be revived and refashioned.

Major constitutional dramas have preoccupied us over the past decade, and Cane and Kumarasingham dream of a ‘21st-century renaissance of constitutional history’. I don’t see it on the horizon: fashions among historians are not a straightforward reflection of the news cycle. If any field has the potential to revivify British constitutional history, it is political thought, an area of study that already overlaps with jurisprudence. In her essay Janet McLean envisages that constitutions might be studied as a ‘special kind of history of ideas’. This new version of constitutional history would have to observe the distinction between the raw practice of politics – almost invariably the decisive influence on the course of events – and a realm of ideas which, while in some measure informing political argument, has rarely determined outcomes. But for many historians the stigma surrounding constitutional history persists.