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Grace Mallon: Hello and welcome to Convention's a podcast about the history of constitutions brought to you by the Quill Project at Pembroke College, Oxford.

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My name's Grace Mallom and I'll be your host. A common side effect of being someone who likes to talk about the U.S. Constitution to Americans,

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but in an English accent is getting a lot of questions relating to British constitutionalism.

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Does Britain have a constitution? Is Britain federal like the United States?

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Is freedom of speech guaranteed in Britain when we don't have a First Amendment?

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I often feel ill equipped to talk about the similarities and differences between the British and American constitutions.

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So today, Nicholas and I have invited Robert Saunders, reader in modern British history at Queen Mary University of London,

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to help us work through what makes Britain's constitution unique and what challenges it faces in a turbulent period for UK politics and government.

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Robert, thank you so much for coming on the convention's podcast. 
Robert Saunders: Thanks for inviting me.

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It's very good to be on. 
Grace Mallon: And Nicholas, thank you for coming back, as you always do, to lend your expertise.

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Nicholas Cole: It's great to be back. Thanks, Grace. 
Grace Mallon: OK, well, my first question then is for Robert, and I'm always interested to know,

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particularly in an era when when constitutional history sometimes seems a little bit boring to some of the current generation of of students,

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how did you get to be interested in British constitutional history?

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It's something that you've written about as something that you continue to sort of comment on in the public sphere as well.

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So how did you get interested in that? 
Robert Saunders: Well, I didn't dream of becoming a constitutional historian when I was a teenager.

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In that sense, it was accidental. But I've always been really drawn to the history of ideas and I've always been drawn to great ideological

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conditions and the way in which big arguments and big debates worked themselves out politically.

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And of course, there are no more fundamental questions in politics than where does power lie?

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Where does authority come from? What is a state? What is the nature of political authority?

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How do we entrench our liberties? So constitutional history doesn't have to be about dry and dusty documents.

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It is about women chaining themselves to railings.

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It's forged in civil wars and battles and revolutions and great parliamentary debates and outdoor demonstrations.

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It is sometimes about dry and dusty documents, and that matters because those documents have a kind of magical power that these

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are the words that capture within them the nature of our rights and our liberties.

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So it's a kind of force field that can either protect our freedoms or can obstruct movements for change.

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So constitutional documents matter, but they matter because they are part of a kind of living fabric of arguments and dissent and disagreements.

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Grace Mallon: There was a rousing call, the constitutional history of ever. I heard one.

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Thank you very much. And so to get back to something a little bit more technical, perhaps, but not very,

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one of the reasons we get this question, does Britain even have a constitution?

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And to link to your dry and dusty documents as well, we get this question.

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Does Britain even have a constitution?

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And one of the reasons we get that question is, of course, because Britain's constitution is, quote unquote unwritten.

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And this is something that particularly Americans are very that's that's something that they know

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about the UK's constitution that that differentiates it from from the American constitution.

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My question, though, do we exaggerate the extent to which the UK's constitution is unwritten or are

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document still really important to understanding British constitutionalism?

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Robert Saunders: I think it's true to say that parts of the UK Constitution are written down,

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you can put out the statutes that created the Scottish and Welsh parliaments and then amended its powers.

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You can find in legislation rules about things like the length of parliaments and the conduct of elections.

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But I think it is also true to say that large parts of the British constitution are unwritten,

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and I think that does matter in at least two key respects. One is that it's not all written down in one place.

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You cannot go into a bookshop and say, give me the British Constitution.

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And I think that is important in terms of the relationship between citizens and the state.

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But secondly, where it is written, it doesn't have any special legal status.

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Our constitutional law has the same status as laws relating to dog taxes or the regulation of betting shops.

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The basic principles of our Constitution in that sense can be changed by exactly the

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same constitutional process as you would repeal the dog tax or impose a tax on drink.

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Nicholas Cole: I think there's another twist to that question as well, Grace, which is that countries with written constitutions,

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including the United States, often exaggerate the extent to which their constitutional arrangements are written down and are collated.

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And plenty of the American constitutional order is, in fact, contained in statute such as the size of the Supreme Court,

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for example, or the appellate jurisdiction of the Supreme Court.

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And plenty of the rest of their constitution is in fact governed by convention as well,

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such as the precise way in which the executive will consult the Senate for advice on appointments and advice on treaties,

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which is to say hardly at all until a vote is taken.

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And and so plenty of what Americans think of as their constitutional order is, in fact, either in statute as well or unwritten entirely.

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So I think there's a great temptation to exaggerate the extent to which the American

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constitution as a whole is written and therefore a great potential to exaggerate

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the extent to which constitutional change doesn't happen every single year in the

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United States as conventions evolve in just the same way as they evolve in in Britain.

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So I think the question cuts both ways. In some ways. 
Grace Mallon: I think that's a really interesting point and a really interesting point of comparison,

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because this was also something something one reason that I to sort of been afraid

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to engage with the history of British constitutionalism is it feels complex

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and it feels like there's so much and and and you'd have to go into so many

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different areas and think about so many different historical stages to fully grasp,

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you know, the development, that constitution. But at the same time, this is also true of the United States.

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As you say, handing out pocket constitutions doesn't necessarily equal constitutional literacy in the way

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that we might expect because that three and a half thousand words really doesn't capture.

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And if you're as Nicholas is fond of saying, if if you're an alien who comes down from Mars and lands in America and somebody

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hands you a pocket constitution to understand how American government works.

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Well, well, no, you don't. And so for Nicholas, I did have a follow up question, which is to do with written again.

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And Robert may have some thoughts on this as well.

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And as I've said, you know, this this issue of readiness is a really common way to sort of distinguish between UK and the US Constitution.

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Did Americans intend this when they were coming up with their constitutions?

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They say, well, something that's going to be really important to us as a nation is codification of our constitutional law.

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Nicholas Cole: The Americans, in a sense, had to have some kind of written constitution after the revolution for their different states because they had been

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governed by charters and they needed something to replace those documents to provide authority for new states.

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So in a sense,

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they needed a written text of some kind precisely because the authority of their existing colonial governments had come from written documents.

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And so it would have been very odd not to have anything. So they needed something.

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They rapidly settled on this idea, though, of having some kind of convention process that is separate from the ordinary process of legislation.

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The voters in Massachusetts rejected their first attempt at a revolutionary constitution precisely because it had been

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written by the legislature and not sufficiently distinguished from the sort of ordinary session of the legislature.

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And so that idea in America that in order to give some institutional reality to the idea of popular sovereignty and delegated powers to government,

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that that idea really did take hold in the form of the idea of having a sort of constitutional

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convention to write this text and not simply leaving it to the Legislative Assembly.

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That said, they did also start to think that this idea of having a written text did distinguish

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them from Europe quite sharply and started to talk as as the Federalist does,

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of the idea of government through reflection and choice or systems of government created through a process of reflection and choice,

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rather than relying on accident and force, as the Federalist says.

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And so so the Americans came to think that one of the things that had

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distinguished them after the revolution from the British devolution of government

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was that they had thought carefully about the structure of their institutions and had codified them through a process of debate and ratification,

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whereas the British had not done that.

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So I think they started by being forced to write written texts, but very rapidly came to see that as a virtue and something that was distinctive.

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Robert Saunders: And it's perhaps worth adding from a British perspective that until quite late in the 19th century,

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a lot of Britons really did think that they had a written constitution and they fought.

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In fact, what was unusual about Britain compared to other European powers was that it had

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a constitution and that you could point to Magna Carta and you could point to

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the various acts of union and you could say that these were the doctrines of the

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Constitution and particularly for groups that were excluded from parliament.

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The idea that there were constraints on what parliament could do was also really powerful.

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So in the 1876, when Josephine Butler was campaigning against the contagious diseases, it's really a Pawling legislation,

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she argued that not only that these were bad laws, that they were not really laws at all.

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And she insisted that there are laws that are contrary to law and that because these breached Magna Carta,

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they did not have at least the moral force and possibly not also the legal force of law.

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So that kind of modern sense that you might have some kind of constitutional court

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that strikes down legislation was quite deeply entrenched in the 19th century.

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And not only really changes, once you get a much more activist parliament that is legislating on such a scale that in practise it is constantly

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breaching Magna Carta or refind in the act of union or just establishing the Irish church or whatever it may be.

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And that view starts to become untenable because the practise of politics now suggests that parliament can, in fact, repeal or replace any statute.

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Grace Mallon: That's very striking to hear, particularly sort of as an Americanist, because there is that sense and I hope I'm not getting this wrong.

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Nicholas, is it is it James Otis who writes a pamphlet where he basically makes the argument that, you know, well,

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parliament will just have to repeal any legislation which is contrary to the Constitution because, you know, that's the way it has to work in Britain.

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And it's also interesting from the American perspective that written this doesn't have to be codification in that traditional sense.

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Like one of my favourite documents is Elliotts Debates, which is a four volume or five volume text that has lots of different like quote unquote,

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constitutional texts that are not the Constitution itself, but are known to inform the workings of America, the foundations of American government.

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That's very striking. But alongside this written this question,

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one of the aspects of British constitutionalism that I confess I don't fully understand is this idea of a convention.

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So when we are coming up with with the title for the podcast, thought to be quite a fun pun,

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Americans have constitutional conventions where everybody gets together and writes a constitution.

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Britons have constitutional conventions in a slightly different sense.

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So how are these conventions or am I correct in saying that they can also be called customs of the British Constitution?

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How how are they enforced and how is the creation of a Supreme Court affected

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the way that we think about custom more convention in the British constitution?

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Robert Saunders: Well, we have to remember, first of all, that until, again, the late 19th century,

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the distinction between custom and convention on the one hand and law on the other was perhaps less of a gulf than it might appear to us today,

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because Britain was operating a common law system in which the law itself is founded

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on precedence and the law itself is founded on what did the court decide 200,

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300 or 400 years earlier.

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And you build up this body of law which can change and it can evolve, but is nonetheless rooted in continuous practise across time.

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So whereas nowadays to say that something is lawful but unconstitutional suggests a great chasm between those two.

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I think that was less the case in the 19th century in terms of how these customs were enforced.

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Sometimes it was by institutions. So there's a wonderful example.

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In 1856, the what's called the Wensleydale case where Queen Victoria created a life pair.

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So rather than creating a hereditary peer, someone who would sit in the House of Lords just for the span of their own life.

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Now, monarchs had done this in the past, but they haven't done it for hundreds of years.

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So it was regarded as no longer being part of Britain's constitutional practise.

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It was regarded as a convention that had expired. The crown had a lawful right to do it.

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But this breached a convention that the House of Lords should be broadly independent of crown control.

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So the House of Lords simply barred the gates and refused to let a it on for an entire session.

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They simply refused to admit poor Lord Wensleydale into the House of Lords until eventually the Crown relented and gave him a hereditary peerage.

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And then he was admitted. So sometimes there were institutional defences.

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But more broadly, it was done by, I think, the power of political opinion and the power of political criticism,

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a sense that these conventions really mattered and that you had to be on a hair trigger for executives

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and monarchs and prime ministers who were trying to break in and breach those conventions.

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And that, I think, is is perhaps where the really big change in British politics has come,

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that you had a political society that was founded on the idea of a revolution and not just a revolution,

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but a glorious revolution in 16 states under resisting tyranny,

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resisting governments that tried to break the rules was fundamental to Englishness and to the practise of English politics.

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Whereas I think increasingly we think in more legalistic terms, if there isn't a law that says you can't do it and it must be your rights.

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So the kind of internal defences have to be washed away.

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Nicholas Cole:I think it's also true, isn't it, Robert, and I love your opinion on this,

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that people broadly are much less educated in the traditions and forms of the British Constitution.

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It's a much less part of a sort of general education now than than it was so that people entering politics probably haven't

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had a kind of education that is really emphasised tradition and custom and constitutional law in quite the same way.

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Robert Saunders: Yes, I think that's absolutely right. I think a key argument against a historically based constitution is that it's quite

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difficult to make that work if you have a historically illiterate governing class.

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Again, going back to the 19th century, the leading politicians of that period, the Lord,

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John Russel's, the blood stains and so on, were soaked in constitutional history.

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They wrote books about the glorious revolution and the civil wars. And of course, that holds up a certain skewed version of that history.

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But it meant that history and politics were in constant dialogue.

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I don't think the current generation of politicians, broadly speaking, really knows what happened the day before yesterday.

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And so because of that, there is a growing tendency to think in purely legalistic terms.

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And to go back to your previous question, I don't think institutionally the creation of a Supreme Court actually changes a great deal,

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but it does perhaps mark a shift in mindsets that we now look to the law,

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not just the last line of constitutional defence, plus the first line of constitutional defence,

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because in such we we can't look to history and historical memory any longer to perform that role.

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Nicholas Cole: I think all I add to that, which I completely agree with, is that the same is true in America,

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that although much more is codified and much more is written down and easily consulted,

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if people are sort of ignorant of sort of general legal and constitutional education,

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that they come to read words in quite unusual and different ways from previous generations.

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And so so come to think of their constitutional text quite differently.

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Grace Mallon: I can't believe that Robert and Nicholas have both just implied that Boris Johnson and Jacob Rees-Mogg are not great

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historians of Britain and don't have have a have a really deep understanding of the British constitutional tradition.

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I confess that I'm quite shocked. I'm quite shocked that you don't you don't feel that way.

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I do think this question of political culture is really important, though.

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I mean, I think something that I've been dealing with myself,

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some thinking about the law and spending a lot of time reading statute books and then realising that sort of it's

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it's political culture that is actually driving the way that certainly in the founding era of the United States,

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you know, that Americans are thinking about, you know, how should federalism work?

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How does our Constitution actually work in a lot of that is to do with political culture and essentially interpersonal relations.

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And that is quite a scary thought that ends up being the barrier to a lot of very dangerous behaviour.

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I think a really. Big change or something?

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There's been a lot of sort of commentary on certainly in the last few years has been the introduction of a of the referendum into British

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politics or the sort of explosion of the referendum onto the scene with two with with Brexit and with with the Scottish independence referendum.

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And Robert, you've written a book about a referendum on Europe.

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And I would like to hear your thoughts on on how you think, to what extent you feel that the referendum is compatible with the British constitution.

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Robert Saunders: Well, I think whether we like it or not, the referendum is now integral to the British constitution,

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that we've now had three UK wide referendums in the last 50 odd years.

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And we've had something like 14 major referendums affecting one or other parts of the United Kingdom.

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So even if we took the view of people like Clement and Margaret Thatcher that referendums were a terrible thing,

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that genie is out of the bottle and it's not going to go back in again.

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So referendums are part of the British constitution now.

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But I think what we haven't done is had a really serious debate about how we use them productively.

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So firstly, we haven't evolved any real conventions or customs about when we hold referendums

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or why we hold referendums or who gets to decide when referendums happen.

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And that, I think, creates a really dangerous constitutional situation,

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because you look at the situation in Scotland at the moment and there is broad acceptance that the route to Scottish independence is via a referendum.

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And yet No.10 is insisting that it will effectively never grant such a referendum.

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So you've got this mighty constitutional weapon,

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which we seem now to have decided is more powerful than parliament, is more powerful in the general elections,

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but it becomes the subject of party warfare rather than the instrument by which we resolve conflicts within the party system.

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So I think we need to do a better job of establishing when we have referendums who decide who gets to vote and what the other criteria might be.

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So we try to lift this a little bit out of the swamp of party warfare.

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And then secondly, we haven't really thought about how we make the referendum work with the green of parliament rather than against it,

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as we saw from 2016 to 2019.

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Really a master class in how not to use a referendum in which the referendum issued an instruction which parliament broadly accepted had to follow,

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that we were going to leave the EU, but it gave no instruction whatsoever on how we were going to leave the EU on what the terms of that might be.

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So we had an instruction. But we had no map that was such.

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We must leave the EU. We had a mandate for that, but we have no mandate for any of the doors by which we might actually have walked out.

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And I think we could perhaps learn something by going back to an earlier period here at the referendum,

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really first came into British political discussion in the late 19th century.

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And the reason for that was that there was a sense that the barriers to precipitate constitutional legislation were disappearing.

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So in 1832, if you want to pass the Great Reform Act, you have to win the support of a House of Commons that the executive does not control.

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You have to get it through a House of Lords that has an independent power of veto and no life peerages.

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And you have to have the support of the monarch. So passing this is really tough.

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It takes two years and a major political crisis. By the end of the 19th century, the monarch has disappeared politically.

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The House of Lords is in retreat and will shortly lose its veto.

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The party system is becoming more powerful, so executives are increasingly dominant over the House.

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So suddenly, actually, you can repeal the Magna Carta or you can repeal the act of union in a way you couldn't before.

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So the referendum emerged as what I called the people's veto, the idea that parliament chooses to act.

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But then you have a check and then the people decide whether they want this or not, which is exactly the opposite to what we did in 2016,

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where we put the referendum at the start of the process and then asked parliament to clear up the mess rather than saying,

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right, this is how Parliament wants to leave the EU. Do you now endorse this?

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Nicholas Cole:I think that's a really good point.

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That should be much more powerfully and often made that most,

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though not all of previous referendums before 2016 had been to confirm a very definite plan of action or not, and that the 2016 referendum wasn't.

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But one of the interesting quirks there, and I think it it shows as well the limits of written law and codification.

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The the the act that created the referendum for 2016 was very clear in the letter of the law that it was merely an advisory referendum.

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And in fact, this was it was a small part of the campaign, but it was part of the campaign.

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And to persuade people to vote one way or another was to say, this is this is merely an advisory referendum.

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It doesn't in and of itself necessarily have any legal force. But of course, as soon as the vote had happened by the slimmest of margins,

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it was as if none of the other checks and balances of the Constitution had any force at all,

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because members of parliament immediately signed up to a doctrine that said that

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whatever their personal opinions on the wisdom of a particular course of action,

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they would nevertheless treat the 2016 result as if it had the force of a constitutional command, which is very peculiar.

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Robert Saunders: And I think that's a reminder that we shouldn't put too much faith in paper safeguards,

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because they are literally that there are a lot of people who will, in retrospect, say we should have had more security in 2016.

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There should have been a requirement for a supermajority. It should have insisted that it be 60 40.

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Well, can you imagine what would have happened in 2016 if there had been a majority vote to leave,

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but by some kind of little protection in the referendum act?

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We didn't have to act on that. So I think the political consequences of that would have been absolutely devastating.

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So what the referendum showed us was the power of an idea and the power of a set of assumptions about the referendum.

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And I don't think that attempts to wrap that around with legal limits,

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unless they are hallowed by centuries of precedent, is really going to get you very far.

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Grace Mallon: So my follow up, in a sense, obviously, one of the interesting things about about both the Scottish independence referendum and the Brexit

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referendum is that they have sort of caused or relied upon really important shifts in sort of

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partisan alignment in the U.K. And I'm one of the things that we sometimes get reference to from the

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current government is this idea that it might be that they want to enact constitutional reforms,

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which I have to say strikes fear into my heart or both of the major parties equally comfortable

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with the idea of using constitutional reform to sort of gain a partisan advantage.

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Robert Saunders: Well, in some ways, both parties have tried to use the referendum in the same way, which is to address a split within their own governing coalition.

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So in 1975, when Britain had its first national referendum on whether it should be part of the European community or not,

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the reason for this was the Labour Party was desperately divided on the issue of Europe.

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And so it was as if the European issue was like a ticking bomb sitting on the cabinet table.

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So you pick it up and throw it over the fence and ask the electorate to deal with it instead.

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And I think you could make a very similar case in 2016 that the Conservative Party had

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reached a point where it simply could not have a unified policy on Europe anymore.

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So you pick up the ball when you again chuck it over to the electorate and ask them to sort it out for you.

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And in 1975, that broadly worked because the electorate gave the answer that the government was expecting.

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And in 2016, it really did and has rewritten the party system ever since.

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I'm not sure that one party is intrinsically more constitutionally radical than the other.

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Although I think you could make a case that the policy that has been most

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constitutionally irresponsible historically has actually been the Conservative Party,

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and the paradigm example of that would be the most a crisis between 1912 or 1914,

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where the conservative front bench was supplying weapons to a paramilitary army,

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the conservative leader and the law was making speeches saying there are things stronger than parliament parliamentary majorities.

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When a future Lord Chancellor was talking about ministers swinging from the lampposts of London.

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And perhaps the psychological element in the Conservative Party believes it is the party of the Constitution,

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that the Constitution is intrinsically a conservative possession and so therefore can do whatever it wants with it.

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Whereas Labour has, in a sense throughout the 20th century, been trying to prove its constitutional credentials to prove that it isn't a Soviet party,

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that it's not a kind of Eastern Bloc party, and has in some respects perhaps been excessively deferential towards Britain's parliamentary traditions.

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Nicholas Cole: There are some easy parallels to the structure of the party system in other countries,

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but I think I'm going to leave this unspoken for the purposes of this podcast.

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Grace Mallons: Yes,

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the supplying of weapons and the swinging from lampposts would certainly evoked a certain sort of recent recent events in there in the United States.

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But it's it's sort of interesting to to look back to as the conservative and Unionist Party and in its heyday.

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Um, so I think we've talked about some big questions.

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And I'm going to end with the two biggest questions of all for both of you.

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Take as much time as you need. Number one, what are the biggest constitutional problems facing the UK today?

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We've touched on several big shifts or changes or things that are sort of pressing in UK constitutionalism.

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And then the second question and really the question that just comes up again and again and again is,

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is the solution to all of our constitutional problems having a written constitution?

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Robert Saunders: OK, I'll have a go. I think I could talk for hours about what's wrong with the British Constitution.

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But in terms of the most pressing problems, I think it is the lack of constraints on the executive,

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the ability of the leadership of a party that can win control of the House of Commons on

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as little as 35 percent of the votes to do almost anything it likes without constraints.

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And the present government, I think, is particularly determined to expand that power and to try to dismantle constraints upon what it can do.

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And I think the issue that actually isn't just about the politics or the personalities of the current government,

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it's a deeper structural problem in British politics, which is that we are increasingly stuck between two different models of democracy.

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So historically, Britain was a parliamentary democracy, but it is trying to behave increasingly like a presidential democracy.

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So we have dismantled many of the powers of parliament to hold the government to account.

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We have in all sorts of ways, lifted the prime minister and the executive above parliamentary control.

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We increasingly treat general elections as if they are presidential races.

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We have televised debates to pick Britain's next prime minister.

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So we're acting and thinking and increasing increasingly presidential term. So we talk about designated survivors when our prime minister becomes ill,

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but we haven't erected any of the safeguards of an actual presidential constitution.

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So the prime minister is not directly elected, doesn't have to win.

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That kind of mandate can be put in power simply by party members.

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We don't have a separate legislature with its own authority that might be controlled by a different party.

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The prime minister is not constrained by a written constitution which is interpreted by a constitutional court.

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So we've got this kind of crazy presidential system emerging,

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which doesn't have the safeguards for parliamentary system or the safeguards of a presidential system.

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So for me, that's the big problem that we've got to try to resolve now.

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Is a written constitution the solution? I think there are merits to a written constitution,

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there is something to be said for having a source of authority that sits above the government of the day and which in a clear and understandable form,

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brings together the liberties of the people and sets out the constraints on what governments can and cannot do under the rules of the game,

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whether it's the solution for Britain in the short term, I'm much more sceptical about.

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Firstly, if there is one thing that's definitely worse than having no constitution, it's having a bad constitution that's been difficult to change.

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And liberal progressives like me tend to assume that if we had a written constitution, it would have all the things that we want in that.

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But it's just as possible that would entrench first past the post,

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that it would make clear that government can shut down Parliament whenever it chooses to do so.

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And we do all sorts of terrible things like that that we then couldn't change.

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Another type of constitution that's clearly bad is one that doesn't command widespread consent.

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Britain is a fantastically divided country.

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I don't know how we generate a constitution that we all agree is fair and none of us think is rect in the interests of one group or other.

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And if you end up for a written constitution that's perhaps passed by 52 to 48 percent in a referendum,

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then you're in a really nightmarish situation in which the constitution itself

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becomes the focus of attack rather than the means by which we resolve our problems.

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And then finally, I think that having a written constitution or the debate about a written constitution often acts

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as a kind of displacement activity for tackling the things that are wrong with our politics now.

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So whenever another minister breaks the ministerial code or whenever there's another scandal about party funding,

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people always write on my Twitter feed, we need a written constitution. And having said that, I go back to whatever they were doing before.

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Well, we're not going to get a written constitution in the short term. So what are we going to do now?

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We do actually have the powers, broadly speaking, to tackle things like corruption in public life.

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We the electorates have things that we can do about the current state of politics.

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And I think the priority should be on doing those things, on trying to mobilise the electorate,

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rather than simply looking across the vast vista of history and saying, well, in the year 2019, will we have a written constitution?

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This will all have gone away.

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Nicholas Cole: I think one of the things that people get confused is the difference between having a written constitution and creating a political culture and.

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A political culture emerged in Britain and in America that was very important for the growth of democracy that contained propositions such as.

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One shouldn't lie in places like parliament, one shouldn't mislead parliament.

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That's a very important sort of part of political culture.

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You know, if one is caught misleading parliament, one's position is untenable.

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How quaint that idea seems now. And yet for generations of British politicians, although perhaps a smaller period of time than we might imagine,

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that that really did command respect as a proposition. Likewise, one shouldn't beat each other up at elections.

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Electoral violence is not acceptable. Again, you know, that was part of British political culture for a long period.

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I think it still is. But in many parts of the world, that's become a bit of a shaky proposition as well.

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And a written constitution doesn't create political culture, and historians are not very good at explaining what creates political culture.

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Robert and I are both, in a way, sort of historians of political thought.

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But but I don't know that there is a big field about political culture that really

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has a good understanding of how that broader political culture is is created

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and how one might go about actively creating sort of good political cultures and

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helpful political cultures on the constitutional problems facing the country.

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One problem I think we need to think about more is when we talk about devolving powers to local areas,

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which both parties in different ways have thought about a lot and often sort of champion as the answer to ills,

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let's just give more power to local governments of different kinds or regional governments.

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Are we then happy to have different outcomes from decision making?

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Because devolved authority means that you will have different outcomes if you devolve, say,

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spending on that on the NHS to local areas, local areas will choose different priorities.

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I'm not sure that we're very comfortable actually with that kind of idea.

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And it's and it's something that we don't think about enough as we tinker with where at which level of government different decisions are made.

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And some of this has to do as well with with Parliament's willingness to simply not debate legislation in detail on the details

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of legislation and pass things off to secondary legislation and other ways of making decisions about what the law should be.

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So I think part of what's implicit in what Robert said is,

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is a plea for parliament actually to be more active and engaged with the business of writing laws,

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which one way, because it's its core job and for which it has far more time than parliament in the past, actually.

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But again, that's something we see globally,

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that legislative assemblies are increasingly not spending their time looking at the detail of legislation.

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As for your question about whether a written constitution would help,

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any modern process to write a written constitution would want to include the entrenchment of policy, as well as the entrenchment of process.

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And whether or not it would then command widespread support might be very much to do with whether particular

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people felt that they had managed to entrench the policy preferences that they have in a written constitution.

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There's an enormous trend across the modern era of constitutions containing

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more and more that is about policy preference than about process across time.

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And all written texts need interpretation and.

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If you have a written text that requires interpretation and you don't happen to like the particular

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interpretation given to it by the body that has been appointed or has appointed itself as its guardian,

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then it can become very difficult to change those interpretations.

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So I actually think that becomes a problem with accountability sometimes as more and more is moved into the sphere of a written constitution,

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and yet it becomes harder and harder to control the interpretation of that text.

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And for those reasons, I think for Britain right now, a written constitution really wouldn't solve anything very much.

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And I completely agree with Robert that the process of writing one would be a really terrible ordeal to go through in a divided country.

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Robert Saunders: I'm cheering Nicholas on the way he talks about political culture, because I think this is absolutely crucial.

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I was reading a wonderful speech by Gladstone the other day where he was he said the real security for liberty.

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They are the securities that are written in the hearts and minds of men.

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And as long as we update that to men and women, then I think that's absolutely right,

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that if we want a politics that cares about things like truthfulness and integrity and not paying large sums of money to your friends and allies,

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we are only going to get that if the electorate cares about that and if the electorate starts to

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punish people who do not tell them the truth or who in other ways corrupt the democratic process.

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And as Nicolas says, it's very difficult to explain historically why that appears to exist more powerfully in some periods than in others.

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I think in the 19th century you might talk about the rise of evangelicalism, and that's a force that isn't going to help us politically anymore.

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But perhaps another element that was important then was the consciousness of the fragility of free governments,

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the sense that actually having free governments was rare and unusual.

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If you were standing in Britain in the 18th 60s and you looked out across the world,

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you looked across the Atlantic and you saw the United States of the collapsed into civil war,

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you looked across Europe and you saw France under a military dictator.

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You saw Russia under the Tsar. You saw all kinds of other states under feudal monarchs who had rolled back freedoms.

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So the sense that free government wasn't the natural state of politics,

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it was something really unusual that required constant vigilance and constant protection was very powerful.

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And we've lost that radically, I think, particularly in the post 1989 world.

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Now, it may be that as we start to look around the world and we start to look at what's happening in places like Hungary and Poland,

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or we look at the scenes that took place in January around the capital building in United States,

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that perhaps we start to rebuild a sense that actually democracy can pass, that we can lose freedoms that have been won as well as building them,

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and that we as citizens have responsibilities to our institutions, not simply rights to expect to extract from them.

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Grace Mallon: I don't think there is a better note on what she could possibly end.

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Thank you so much, Robert and Nicholas, for this really fascinating conversation.

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Thank you for listening to conventions, I'm Grace Malin and I was joined by Nicholas Cole, director of the Quill Project,

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and Robert Saunders', reader in modern British history at Queen Mary University of London.

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His most recent book, Yes to Europe: The 1975 Referendum and 70's Britain, is published by Cambridge University Press.

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Next time we're joined by the political scientist Robinson Woodward Burns.

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Woodburn's will be telling us about his new book On the Way State Constitutions Stabilise American

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Politics and discussing why statehood for the District of Columbia is such a contentious issue.