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The Political Quarterly, Vol. 89, No.

4, October–December 2018

Why Britain Needs a Written Constitution—and


Can’t Wait for Parliament to Write One
BRUCE ACKERMAN

Abstract
The lecture explores basic constitutional choices confronting post-Brexit Britain, emphasising
dilemmas generated by Irish, Scottish, and Welsh demands for home rule. It argues that only
a specially elected Constitutional Convention, independent of Parliament, has the capacity
and legitimacy to hammer out a written constitution that tries to resolve these dilemmas in a
serious way. Once the Convention acts, its proposal should be submitted for approval at a
referendum, but only after special steps are taken to encourage an informed decision by the
electorate. Given the misinformation campaigns provoked by the last referendum, it is time
for Britain to try something new: create a new national holiday, Deliberation Day, at which
voters would be invited to gather at neighbourhood community centres to discuss the Con-
vention’s initiative. A host of social science experiments establish that a day’s deliberation
greatly improves public understanding, enhancing the democratic authority of a Yes vote at
the referendum.
Keywords: Constitutional Convention for the UK, written constitution, home rule for
Scotland and Wales, federalism in the UK, British referenda, Brexit

EVERYBODY IS immersed in Brexit-talk right Britain is at a great historical turning


now. But I’ll be asking you to spend the next point. Over the last three centuries, these
hour detaching yourself from the current islands have been at the centre of a great
debate—and to join with me in confronting empire which has, since the American Revo-
the constitutional challenges Britain will face lution, been regularly obliged to deal with
once it reasserts its political independence colonial efforts to gain independence. But
from the European Union. this time around, the shoe is on the other
I am more concerned with presenting the foot. The EU is hardly an empire, but it is
fundamental questions rather than providing the dominant power in Europe, and Britain
definitive answers. By the end of my talk, is the newly independent country trying to
though, I’ll be explaining why my diagnostic reorganise itself for constitutional self-
exercise leads me to call for immediate government after deciding to go its own way.
action. While Theresa May and her succes- Yet it faces a distinctive problem. For a
sors struggle with Brexit-related matters for variety of historical reasons, the United
the next few years, Parliament should enact Kingdom has muddled its way into in a
a statute creating a specially elected Consti- curious arrangement in which significant
tutional Convention to confront the post- forms of home rule are extended to the 5
Brexit dilemmas facing Britain, and hammer million people living in Scotland, the 3 mil-
out a written constitution for submission to lion living in Wales, and the 2 million living
the voters at a popular referendum. in Ireland, but no home rule is granted to
A modest proposal, undoubtedly. But I the 52 million people living in England. Call
won’t try to defend it till the last part of my this spatially asymmetric federalism.
talk. Regardless of its merit, I hope you will At the same time, the degree of home rule
find my exploration of post-Brexit problems enjoyed by the three regions differs very sig-
helpful in clarifying your own thoughts on nificantly. Call this qualitatively asymmetric
the subject. federalism.

© The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018
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This double asymmetry generates big and his many followers have contended that
problems. For starters, the House of Com- states should give up the aspiration to facili-
mons can change the qualitative terms of tate a broad variety of ways of life, and that
federation whenever it wants to, even each particular state should dedicate itself to
though the English don’t feel the direct con- the preservation of the particular culture
sequences of decisions which profoundly dominant in its region.
affect the Scots, Irish or Welsh. This leads I shall call this the mono-cultural ideal of
the three minorities to organise regional the state, and it has repeatedly demonstrated
political parties to defend or expand their its powerful appeal over the course of the
autonomy. If these political parties win most last century. After the First World War, it
of their region’s seats in the House of Com- served as the ideological foundation for the
mons, it is much tougher for the nationally dismemberment of the Hapsburg Monarchy
oriented Conservatives or Labour to form into Hungary, Czechoslovakia, and Yugosla-
stable majority governments, especially if via and then reached a terrible climax in
smaller parties like the Liberals win a few Nazi claims to cultural hegemony; and we
seats as well. are seeing its powerful resurgence around
At present, Theresa May’s weak govern- the world today.
ment is looked upon as an exception to the It is of the first importance for all of us to
general rule in which a strong Prime Minis- join forces against another outbreak of
ter commands the support of a clear parlia- mono-cultural militarism, but this lecture
mentary majority. But over the next decades, concerns a more subtle danger: Britain isn’t
the dynamic of asymmetric federalism may turning Nazi anytime soon, but its Enlight-
well make May-type governments far more enment ideals could well be eroded by war-
common—with the Prime Minister making ring mono-culturalisms generated by the
ad hoc deals with the regions to win repeated political dynamics of asymmetric federalism.
no-confidence challenges presented by rival With the government of Scotland or North-
national parties. This wheeling and dealing, ern Ireland at the mercy of the English
in turn, will lead to long periods of indeci- majority in Westminster, regional parties will
siveness, punctuated by moments of angry increasingly defend local autonomy by
protest from alienated English voters who, emphasising the crucial role that home rule
disgusted by ad hoc bargains with the region- plays in preserving Scottish or Irish identity.
alists, are tempted to vote for a demagogic Such mono-cultural defences of home rule
leader who promises them ‘strong and deci- may well encourage cultural nationalists in
sive government’ if they vote his out-party the English regions to gain increasing politi-
into power. cal support. As competing mono-cultural
This dynamic of political weakness, punc- rhetorics increasingly dominate politics, they
tuated by demagogic assertions of strength, will undermine the Enlightenment ideal
is not only disturbing in itself. It also threat- which insists that, despite their very real cul-
ens to undermine traditional understandings tural differences, the inhabitants of this coun-
of British citizenship. Over the past three try are prepared to view one another as
centuries, most Britons have come to think equal citizens of Great Britain, prepared
of themselves as citizens of something I shall to work together to solve their common
call an Enlightenment State—where they are problems.
free to live out a rich variety of religious and Instead, the escalating mono-cultural riv-
cultural lives without endangering their sta- alry will lead to the rise of a less ambitious
tus as equal members of the British nation. ideal. Call it restrained mono-culturalism:
This Enlightenment ideal of multi-cultural On this approach, the Scottish people will
citizenship is regularly belied by real-world grant fundamental rights to Englishmen who
practice, but it nevertheless remains a pre- live in their homeland, and vice versa. Nev-
cious aspect of the British tradition—and it ertheless, even when these non-conformists
has been repeatedly challenged by a very are treated with respect, they will find it
different ideal in many places throughout increasingly difficult to understand them-
the world. Since the early nineteenth cen- selves as fellow citizens engaged in an
tury, thinkers like Johann Gottfried Herder Enlightenment project. Instead, they will

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© The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018 The Political Quarterly, Vol. 89, No. 4
understand themselves as rights-bearing out- help pre-empt the dangers of cultural nation-
siders living in an increasingly alien foreign alism we have identified. If the central gov-
land. ernment threatened home rule in Scotland, it
The way to pre-empt the danger of mutual would also be threatening it in the provinces
alienation is by reassuring all sides that the of Manchester and East Anglia. Rather than
terms of regional self-government are deeply resisting English imperialism in the name of
entrenched in existing constitutional arrange- Scottish nationalism, the Scots would be
ments, and that they need not engage in more likely to form political alliances with
aggressive political organisation to protect the British provinces to defend their common
their rights to home rule. interests against Westminster.
But this reassurance is hard to come by This dynamic would not only support the
within the present Westminster structure, in Enlightenment tradition of British citizen-
which the English have an overwhelming ship. It would also be far more effective in
majority of the votes, and the governing inducing the House of Commons to respect
party in the Commons may well find that the division of powers between region and
cultural nationalism serves its short-term nation, since English MPs would now find it
political interest. How then to avoid a dis- in their own interest to take their con-
United Kingdom? stituents’ interests in federalism into account.
I begin with a proposal that is radical by Indeed, standard federalism could well give
British standards, but utterly conventional rise to the decline of regional parties at West-
everywhere else in the world. Consider the minster. Once voters were assured that the
possibility of transforming Britain’s asym- national parties will respect federal interests,
metric federalism into a fully symmetric one. they will find it more important to vote
As in Australia or South Africa, Germany or Labour or Tory or Liberal to express their
the United States, why not divide the entire views on the central issues of national politics,
country into an appropriate number of self- rather than waste their votes on regional par-
governing provinces, giving each the same ties who use their Westminster seats to lobby
powers of local self-rule, and limit Westmin- for matters of merely provincial concern.
ster supremacy to issues of truly national But let’s put symmetry aside for a moment
concern. and assume that one or another version of
Standard federalism has a lot to be said the status quo will prevail in post-Brexit
for it in the British context. The dominant Britain. What other steps might be taken to
interests and cultures prevailing in pre-empt the dangers of weak national gov-
metropolitan London are radically different, ernment, and increasing ethno-nationalism,
say, from those prevailing in the north west generated by the current set-up?
of England. Putting these different regions A familiar answer is to create a federal
into separate provinces would give each Senate to check and balance the centralising
region’s inhabitants the precious opportunity tendencies of the popularly elected House. If
to express their cultural differences in a adopted by Britain, this would involve abol-
meaningful politics that transcends the lim- ishing the Lords and creating an Upper
ited concerns of local councils. To be sure, House that grants Northern Ireland, Scotland
the definition of regional boundaries would and Wales greater representation than they
be a tricky business. It would be best for all deserve on the basis of their populations.
the provinces to have similar populations, I myself would be reluctant to endorse this
but this would require metropolitan London move. Obviously, a great deal depends on
to divide itself up into three parts. It may the extent to which the federal Senate should
well be more sensible to make it a single be permitted to delay or veto initiatives
province of 15 million and make qualitative passed by the Commons. There is a first-rate
adjustments to assure its fair share of finan- literature on this subject and it does suggest
cial and institutional support. that a well-designed system can often oper-
But I don’t want such problems of imple- ate in a constructive fashion.1
mentation to deflect us from the main point. Nevertheless, I am more impressed by a
Apart from the opportunities for regional very real problem posed by even the clever-
self-government, standard federalism would est designs. Call it the deadlock problem. It

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The Political Quarterly, Vol. 89, No. 4 © The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018
arises when the two Houses are controlled I would hesitate, however, before assign-
by different political coalitions who are bitter ing this task to the courts. This is because
rivals—and who use bicameralism as a the judges have an even more important job
weapon to generate an impasse that throws to do. As Vernon Bogdanor has recently
their competitors out of power in a deeply argued, Brexit will require the courts to con-
problematic fashion. The resulting crisis can front large gaps in traditional British doctri-
shake the foundations of the entire constitu- nes defining fundamental human rights.3 At
tional order. least since the Human Rights Act of 1998,
British history is replete with such bicam- this has not been their primary concern.
eral deadlocks, though they involve the Instead, the judges have focussed most of
House of Lords, rather than a federal Senate. their energies on contributing to a European-
Its political class has been relatively skilful in wide effort to construct a firm foundation
resolving them, as in the artful manoeuvring for the protection of human rights all over
that finally gave rise to the Parliament Act of the Continent. But once Britain regains its
1911. But other places have not be so lucky independence, the Supreme Court must
in dealing with federalist Senates. Australia devote a large part of its energies to devel-
experienced the greatest crisis in its history oping the British tradition of freedom and
during the 1970s, when opponents of the fairness in ways that will be responsive to
left-leaning Whitlam government used more contemporary understandings of equal-
bicameral deadlock to expel it from power ity and human dignity developed in Europe
despite the fact that Whitlam commanded a and elsewhere around the world.
majority in the popularly elected House of This will be an inevitably controversial
Representatives.2 A similar crisis is currently matter, even if the Court’s project of doctri-
exploding in Italy—where the Five Star nal modernisation is explicitly affirmed by
Movement, the Northern League, and Silvio the formal enactment of a Bill of Rights,
Berlusconi are vying for power after a guaranteeing each citizen’s fundamental
bicameral deadlock destroyed the capacity of right to human dignity.
the governing left-centre coalition to sustain Since the principle of human dignity was
its authority. Worse yet, bicameral Germany never self-consciously elaborated in the Bri-
may well confront a similar crisis over the tish tradition, the Supreme Court will have
next few years, as the Christian Democrats to define its contours in a series of concrete
and Social Democrats continue to lose cases. As they undertake this task, it will
ground to competitors in the Bundesrat. rapidly become apparent that leading courts
Given these dangers, I believe that the around the world profoundly disagree over
UK would be better off, in the middle run, the right doctrinal approach to disputes over
if it retained a suitably reformed House of human dignity—Germany and Canada, for
Lords and resisted the temptations of a example, have developed sharply conflicting
federal Senate. At the very least, the dead- paradigms.4
lock problem should lead to a more sympa- This means that the judges won’t be able
thetic view of the symmetric approach to to hide behind a ‘universal’ consensus in
federalism I advanced earlier, since the cre- developing a British doctrine of dignity.
ation of ten or twelve provinces throughout They will be obliged instead to embark on a
the Kingdom will do far more to respond series of highly controversial decisions, with
to underlying pathologies of asymmetric rival majority and minority opinions picking
federalism and does not generate a compa- and choosing amongst rival positions as the
rable deadlock problem. Court slowly develops its own distinctive
Before passing final judgment, however, approach to highly sensitive subjects. This
we should add the Supreme Court into the will make it particularly vulnerable to politi-
institutional equation. Perhaps Britain should cal attack.
reject both a federal Senate and a standard Since the Court must play an absolutely
kind of federalism and rely instead on the essential role in defining and protecting fun-
Court to play a leading role in mediating the damental rights, I think that it should save
conflicts between Westminster and the three its political capital to deal with these chal-
minority regions? lenges—and that it should not compound its

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© The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018 The Political Quarterly, Vol. 89, No. 4
legitimation problems by forcefully interven- candidates to the nation as a whole. The top
ing on the federalism front as well. candidates on each slate will gain election in
To be sure, it won’t be possible to design direct proportion to the slate’s share of the
a plausible British Constitution without pro- popular vote. This system—called ‘closed list
viding for a significant judicial role in medi- proportional representation’—has often been
ating tensions between centre and periphery. deployed successfully in many countries. In
But the priority of the Court’s rights-protec- this particular context, it will encourage the
tion mission suggests the wisdom of relying choice of candidates who can, on the basis of
on other devices—like symmetry and federal their past performance, persuade British vot-
Senates—to do the heavy lifting over the ers that they are worthy of their trust in
middle-run. undertaking such a fateful enterprise. Given
***** the different interests and values at stake,
As should be clear by now, there isn’t a it’s virtually certain that no single slate will
single magical answer to Britain’s constitu- win anything like 51 per cent of the vote.
tional dilemmas—which leads me to a final Instead, the top candidates from different
question: how should the country organise slates will be obliged to take competing
itself to make the big decisions that will views seriously as they try to hammer out a
shape its constitutional future? sensible solution. This is a good thing, not a
Since I’ve been emphasising the complex- bad thing, when fundamental issues of con-
ity of trade-offs till now, I hope you will for- stitutional design are at stake.
give me a bit of dogmatism on this issue. I The Convention should be given a dead-
believe that there is one, and only one way, line for decision, but there is no need for a
for Britain to take charge of its constitutional rush. After all, Parliament will be attending
future—and that’s by taking the issue away to business as usual. The Prime Minister and
from Parliament and electing a special Con- her government will also be trying to influ-
stitutional Convention to present a proposal ence Convention decisions. This is perfectly
for approval by the British people at a spe- fine, since they too have a mandate from the
cial referendum, after special steps are taken voters. But at the end of the day, the deci-
to assure an informed decision by the voters sive question for Convention delegates is not
on the key issues. whether they will please the Prime Minister,
My argument against parliamentary con- but whether they can convince ordinary citi-
trol is straightforward. The past half-century zens to approve their proposed Constitution
has demonstrated that British Prime Minis- at the coming referendum. A Yes vote will
ters—from Edward Heath through Harold not only add lustre to the delegates’ careers
Wilson through Margaret Thatcher through and propel them into national prominence; it
Tony Blair through David Cameron—have will assure them a place in British history for
systematically subordinated long-run issues a very long time to come. If such a glorious
of constitutional design to short-run issues of prospect doesn’t encourage them to rise
party management in the House of Com- above the petty politics of the moment, noth-
mons. There is no reason to think that ing will—especially if steps are taken to
Theresa May’s successors will be any differ- encourage the voters to engage in a similar
ent. To the contrary, they will be so over- effort at public-spirited engagement when
whelmed with the challenges of managing the time comes to cast their ballots at a refer-
Brexit over the next few years that they will endum. After the terrible mis-information
have little time left for anything else. campaigns in the last referendum, I would
So, the only option with half a chance of hope that public opinion on all sides would
success is to call a Constitutional Convention support a reform that would prevent a repe-
to debate the long-term, big picture issues— tition of the same sad performance the next
and come up with a sensible solution. Elec- time around.
tions to the Convention should not be con- In a book written with Jim Fishkin,5 I
ducted in the standard single-member make the case for a new national holiday,
district, winner-takes-all fashion. Instead, Deliberation Day, to be held a couple of
political parties and other citizens’ groups weeks before referenda, which would
should be asked to present a slate of encourage ordinary citizens to discuss the

588 BRUCE ACKERMAN

The Political Quarterly, Vol. 89, No. 4 © The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018
key issues at community centres throughout Poll, to engage in a structured discussion like
the country. the one I set out for Deliberation Day. The
Deliberation Day would begin with a Australians invited to Canberra were
familiar sort of televised debate between the selected through rigorous statistical tech-
leading defenders and critics of the Conven- niques which assured that they were broadly
tion’s proposal. But after the show ends, representative of the general voting public.
local citizens take charge as they engage the As discussion proceeded, they increasingly
main issues in small discussion groups of fif- favoured the proposal advanced by the
teen and larger plenary assemblies. The majority at the Constitutional Convention. In
small groups begin where the national contrast, a separate survey of the broader
debate leaves off. Each group spends an public revealed that, while it was bom-
hour defining questions that the national barded by mass media campaigns, it was far
spokesmen left unanswered. less informed when the time came to cast
Everybody then proceeds to a plenary ses- ballots on referendum day. While the Can-
sion at which they join 500 other voters in berra deliberators had voted a strong Yes at
the neighbourhood to hear their questions the end of their poll, the general public
answered by local representatives of the Yes voted No at the referendum.
and No sides. After lunch, they repeat the Of course, Australia in 1999 is light years
morning procedure. By the end of the day, removed from Britain in 2018. For present
participants will have moved far beyond the purposes, I have no interest in debating
top-down television debate of the morning. whether the Brexit referendum would have
Through a deliberative process of question- come out the same way if it had been pre-
and-answer, they will achieve a bottom-up ceded by a day of deliberation. The aim of
understanding of the constitutional issues this lecture has been to urge you to look for-
confronting the nation. Discussions begun on wards, not backwards. Nevertheless, given
Deliberation Day will continue during the recent experience with the Brexit referen-
run-up to referendum day, drawing those dum, Deliberation Day certainly deserves a
who did not attend into the escalating try.
national dialogue. Of course, even if it were adopted, the
My proposal for Deliberation Day is based new holiday will only assure a much more
on 108 social science experiments in twenty- informed vote on referendum day. It hardly
eight countries that my friend Fishkin, guarantees a Yes vote. But even a No
together with his Stanford colleagues, have hardly suggests that the exercise had been a
conducted over the past twenty years.6 He failure. To the contrary, it would have
calls them Deliberative Polls, and they vastly clarified the contours of constitutional
involve a random sample of several hundred choice, setting the stage for a rerun of the
citizens spending a day or two deliberating process with greater prospects for success.
on major issues of the day. Fishkin has con- Once again, there should be another call for
vincingly established that participants elections to another Convention, which
greatly increase their understanding of the would make another proposal to place
issues and often change their minds on the before the voters in another deliberative ref-
best course of action. Swings of 10 percent- erendum. The challenge for the second Con-
age points or more are very common. No vention is clear enough: can they hammer
less important, people leave with a more out a new proposal that takes account of
confident sense of their ability as citizens to the principal objections that defeated the
contribute constructively to political life. old one?
A deliberative poll conducted held in Aus- There is reason for optimism here. While
tralia in 1999 is most suggestive for present Britain has lots of problems, it also has a
purposes. It was held in response to a pro- great tradition of problem-solving. But if the
posal, advanced by a Constitutional Conven- second proposal goes down, it would be
tion, to transform the country into a time to call it quits, and return the matter to
republic. Before voters went to the polls to direct parliamentary control.
decide the matter at a referendum, 347 Aus- By that point, three or four years will have
tralians came to Canberra for a Deliberative passed, and the Brexit clouds may have

WHY BRITAIN NEEDS A WRITTEN CONSTITUTION 589

© The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018 The Political Quarterly, Vol. 89, No. 4
begun to lift, permitting Westminster to take Notes
the issue with greater seriousness. Even on
This is the text of the Annual Lecture of the Insti-
this pessimistic scenario, the Convention
tute for the Humanities and Social Sciences at
experiment should count as a noble failure— Queen Mary University of London, delivered on 3
since the Westminster effort at a solution May 2018.
would be profoundly shaped by the course
of the preceding constitutional debate. 1 See G. Tsebelis and J. Money, Bicameralism,
In contrast, if Britain never goes down the Cambridge, Cambridge University Press, 1997;
Convention path, the ultimate outcome may J. Waldron, ‘Bicameralism and the separation of
well be far worse—with the dynamics of powers’, Current Legal Problems, vol. 65, no. 1,
asymmetric federalism generating a persis- 2012, pp. 31–57.
tent pattern of weak coalition government at 2 B. Lim, Australia’s Constitution After Whitlam,
Westminster, punctuated by competing cul- Cambridge, Cambridge University Press, 2017.
tural nationalisms that may ultimately 3 V. Bogdanor, ‘How Brexit will erase your
destroy the hard-won ideals of multi-cultural rights’, Prospect Magazine, 18 April 2018;
https://www.prospectmagazine.co.uk/magazine/
Enlightenment citizenship expressed by the
how-brexit-will-erase-your-rights (accessed 21
British tradition. May 2018).
In accepting the Institute’s kind invitation, 4 See A. Barak, Human Dignity: The Constitutional
I have taken this opportunity to speak as an Value and the Constitutional Right, Cambridge,
American who has spent much of his life Cambridge University Press, 2015, a book by the
studying my country’s deep debt to the Bri- long-time Chief Justice of the Israeli Supreme
tish constitutional tradition. This lecture is Court, who describes the Canadian and German
one small way to repay this debt. But it is case law in the course of elaborating his very dif-
for you, not me, to decide whether my diag- ferent approach, which also has had a powerful
nosis is sufficiently compelling to motivate influence on judicial developments elsewhere.
5 B. Ackerman and J. Fishkin, Deliberation Day,
some of you to spend the time and energy
New Haven CT, Yale University Press, 2004.
required to organise a broad popular move- 6 J. Fishkin, Democracy When the People Are Think-
ment for a Constitutional Convention that ing, Oxford, Oxford University Press, 2018, for
could gain the serious attention of Parlia- recent findings from deliberative polling, and a
ment. discussion of their deployment in concrete deci-
Thank you very much. sion-making contexts.

590 BRUCE ACKERMAN

The Political Quarterly, Vol. 89, No. 4 © The Author 2018. The Political Quarterly © The Political Quarterly Publishing Co. Ltd. 2018
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