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Starmer and a new British constitution

The British state needs to work very differently – what are the Labour leader’s big ideas?

Photo: Christopher Furlong/Getty

The upcoming general election on 4 July, in which Labour is projected to win a landslide victory, brings with it the question of constitutional change. Following Brexit, and the loss of EU membership as a moderating force, the strength of the UK’s unwritten constitution has been repeatedly challenged. Constitutional outrages, such as Boris Johnsons’s attempt in 2019 to prorogue parliament, have coincided with a halving of trust in government ministers from 20% in 2016 to 10% in 2023.

This time-span has also included four prime ministerial resignations and attempts to alter legislation that is critical to the protection of fundamental rights. In that time there have been over a dozen by-elections held due to misconduct by MPs, as well as repeated government attempts to bypass parliament – with varying degrees of success.

These issues were at their worst at around the time when Keir Starmer took control of the Labour Party, and so his time as leader of the opposition has been punctuated by headlines about constitutional change. When Starmer commissioned Gordon Brown to produce a report on the UK’s future, Brown concluded that the challenges facing the UK were inextricably linked with constitutional issues.

One of the central elements of the report related to federalism, an approach Starmer had advocated in his leadership bid and that Brown had also previously considered. Although this did not attract the same attention as Starmer’s proposal to abolish the House of Lords, its impact would be far more consequential. It is a constitutional reform that aims to confront head-on the issue of trust in politics.

It is also an example of the way that constitutional change can be achieved without adopting a fully written constitution. The UK is one of very few countries, including Israel and New Zealand, with an unwritten constitution, which inevitably means there are constant calls to create one.

There are many reasons not to take this route. Not only is writing and enacting a constitution time-consuming and difficult, but according to research by the University of Chicago the process needs to be repeated on average every 17 years – plus there is also no guarantee that it would resolve any constitutional challenges. The political landscape in the US, for example, has been far more tumultuous than that of the UK despite – and in some ways because of – its written constitution.

More importantly, the structures and conventions that define the UK’s unwritten constitution have a practicality that many written constitutions lack. And although not codified in a single document, there are still written aspects of this constitution that could be strengthened or clarified.

Two areas of focus for this approach could include, first a new constitutional classification for laws considered foundational, and second, a reorganisation of local government from a devolved to a federal system. 

The recommendation to create a new category of constitutional act elevating the status of key legislation was included in a 2023 review of the UK’s constitution by the Institute for Government and the Bennett Institute for Public Policy. The review recommended that these acts should be protected from repeal and that they can only be amended by primary legislation.

New Zealand, which has an unwritten constitution, has a process, defined in legislation, for amending a limited number of provisions which are considered constitutionally significant. Amending these provisions requires either a three-quarters parliamentary majority, or a majority in a referendum.

Amendments to Norway’s constitution, which is a single document, require any amendment proposal to be made at the start of an electoral term, when it is published in print. It is voted on in the following electoral term, and requires a two-thirds majority vote in the Storting, the country’s upper chamber.

Aspects could also be drawn from Sweden’s constitution, which includes four pieces of legislation outlining constitutional law with enhanced protections. As in Norway, amendments to the constitution cannot be made in one election cycle: two decisions with identical wording must be adopted in the Swedish parliament with an election between the two. There is no reason why the UK could not provide similar protections.

To decide which statutes should be allocated this protection would involve reinstating the Political and Constitutional Reform Select Committee. This could be accompanied by aspects of Iceland’s approach to constitutional reform, which was to create the world’s first “crowd-sourced” constitution. This involved the direct election of individuals to a constitutional council to propose changes which were approved in a non-binding referendum (although controversially not implemented by Iceland’s government).

So – what laws could Britain put on this constitutional footing? The Human Rights Act 1998 and the Equality Act 2010 both come to mind. Other statutes fundamental to the UK’s constitution include those defining the relationship between local and national government. 

The most effective approach to decentralised government for long-term stability in a UK context is a federal system, an approach that Keir Starmer advocates. Whereas devolution involves power being allocated to local governments by a single sovereign authority, a federal system would allocate sovereign authority to local governments on a wide range of issues. Within this framework the governance of England would be split into equal-sized federal jurisdictions.

Germany and Switzerland’s federal frameworks both have aspects that could be drawn upon in implementing this approach in the UK. For example, both countries redistribute money from wealthier jurisdictions to those with lower revenue. Switzerland extends considerable autonomy not just to its 26 cantons but to the municipalities within them – there are over 2,000 of these.

Much of Britain’s political instability since Brexit has been down to its unwritten constitution – reform is possible. It is also more financially viable and time efficient than completely overhauling the country’s constitution and producing an all-new, written constitution. 

Additionally, by retaining proven aspects of our existing constitution and introducing tested, stabilising elements, there is a much better chance that the reforms will be effective. 

Starmer’s electoral aims are premised on the idea that constitutional instability must be addressed. Considering the pressure on government budgets, a careful process of reform will be the only way to achieve it.

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