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Does the Civil War really have anything to do with Brexit?

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Seventeenth century precedents have been cited fairly freely during the Brexit wrangles. Goodwin’s case of 1604, which asserted the right of the House of Commons to regulate its own elections, or the measures taken by parliament in the 1640s to prevent the King dissolving a parliament that he found increasingly tiresome, have seemed newly relevant to contemporary politics. Their use, however, has been only vaguely recognisable to seventeenth-century historians like myself. This gap between historic decisions or agreements and their subsequent interpretation (one might also think of Magna Carta, for example) is a consequence of what is called by its advocates the ‘organic development’ of the British constitution. 

The UK’s constitution was not founded on the kind of clear articulation of principles that underlay the formation of states elsewhere. Revolutionary republican constitutions created the French Republic and the USA, and were subsequently refined in successive republics, and by constitutional amendments. Most other modern states have a moment or moments of creation like this, often associated with an immediately prior experience of trauma. Outside Europe it has often been a post-colonial moment of creation. Nearer to home, the states of Germany and Italy were founded in nineteenth-century unifications and re-founded following later crises, for example in the aftermath of the two World Wars. Other European states were systematically reformed in the Napoleonic era and remodelled following wars or revolutions. When the Irish Republic was founded, following civil war and revolution, it was the product of a coherent, publicly visible process of constitutional design and one can imagine that a Scottish departure from the UK would be the same.      

Such formal constitutions provide the framework within which politics happens. By contrast, the UK constitution is the net effect of decisions taken at very different points in time for directly political purposes. Our history does not foster nearly as clear a sense of the difference between politics and the constitution (or perhaps even between politics and government), as that of most other democratic states.

This has been a problem in the Brexit disputes, where constitutional issues have been thrashed out in the course of highly divisive political campaigns rather than systematic constitutional discussion. Any talk about this in constitutional terms has been drowned out by campaigners on either side: that the referendum result was based on deceit; that the judiciary are enemies of the people; that parliamentarians exercising restraint on the executive are traitors; that the executive might consider not obeying a judicial ruling about its conduct. 

This impasse has revealed real limitations of our constitution (for example an indistinct separation of powers) and also a more dangerous lack of public constitutional awareness. This is related, I suspect, to the absence of a clear creation moment. That the legislature and the judiciary play a legitimate role in restraining the executive ought not to be an alien thought, although it seems to be so for many British citizens, and even some political journalists. On the other hand, it appears to be second nature to think that constitutional rulings are just another form of tactical politics.

As a seventeenth-century historian this leads me to reflect less on Stuart precedents than than on the overall process of constitution-making in the UK. In the early seventeenth century, Charles I was at odds with subjects in each of his three kingdoms of England, Scotland and Ireland, notably over religion and finance. These tensions were common in Reformation Europe but what was peculiar about the Stuart experience was that in Charles’s largest kingdom the tensions manifested as a civil war between parliament and Crown, which parliament won. Having secured practical powers over religion, legislation and finance, executive power gradually migrated into the hands of whoever commanded a majority in parliament. The smaller kingdoms meanwhile were absorbed largely, but not completely, on the terms set by the English system. 

In a second phase, during the nineteenth and early twentieth century, the executive and legislature became answerable to an electorate including all citizens. That allowed the UK to weather the development of mass politics and nationalism without violent political change, unlike most of the rest of Europe. In effect, opening up an already established representative executive and legislature proved an easier task than that faced by most European monarchies. 

It resulted though in a UK constitution that is both hard to describe and poorly understood. The separation of powers illustrates this point. In effect, a majority in the legislature provides the mandate for the executive, but these people are also the majority of those responsible for holding the executive to account. If they follow the party whip and their career interests, the logical endpoint could be said to be an elected dictatorship; if they don’t, they are vulnerable to attack as anti-democrats. Meanwhile, legal restraints imposed on the Crown during the seventeenth century provide part of the formal armoury by which the legislature asserts its power to restrain the executive.

In the end, the Brexit wrangling may vindicate this process — of piecemeal decision-making under the pressure of events as a way of producing the framework for political life. I take the other view, though, that the current problems have politicised the constitution and made political life in the long run less manageable. If the peculiar British outcome of seventeenth century was that the UK had an easier time in the nineteenth, I think we are now in the opposite position. A partly reformed British state is less able than others to deal with the political passions of contemporary life and to take a long-term view. That is partly a matter of the shortcomings of its constitutional arrangements, but also of public understanding of those arrangements.

These constitutional tensions need to be resolved outside the context of immediate political campaigns — by constitutional thinkers not by campaigning politicians, by people with an interest in government, not just politics. It is time (in fact well past time) for a constitutional convention.

Please note: Views expressed are those of the author.

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