It’s often been said that we don’t have a constitution, or at least, we have an unwritten one. We can sit and argue the toss as to exactly which part of the package of laws, conventions and customs that form part of our ‘constitution’, may, or may not be part of it, but it’s clear that we have not got anything written down that can be guaranteed.
May Day nowadays is celebrated as part of International Workers’ Day, but it’s also represents a seminal date in English legal history if you go back a bit further. Back to 1649 to be precise. Whilst it’s true that we don’t have a written constitution, it’s not true to say that we have never had one. Our first one was (probably – it’s difficult to define) in 1653 with The Instrument of Government (although its’ legal status was a bit in doubt). It was, for its time, radical, and the ideas (and some of the language) rippled out and can be seen in later documents such as the US Constitution (an embryonic separation of powers for example).
But, the constitution we could have had before that was the three ‘Agreements of the People’ that was put forward by the Levellers during the English Civil War. The last, and most substantive, was put forward by someone who should be a hero of every lawyer – ‘Freeborn John’ Lilburne and three other Levellers on this day, 363 years ago.
It is a recognisable constitutional document; there is a preamble setting out its history, rationale and purpose. It proposes a legislative body with (near) universal (male) suffrage, the accountability of all people who hold public office, progressive taxation, the abolition of the death sentence for every crime other than murder, and an effective Bill of Rights – all profoundly radical in its day. Importantly, it contained the principle that is one of the most fundamental to any democracy – the rule of law; the idea that everyone, even Parliament itself, is subject to the law. Limits were placed on the ability of Parliament to pass laws that interfered with fundamental rights (something we haven’t quite got our head round to this day).
Parts of it jar now obviously – for example, women were ignored. The idea of annual Parliaments with no member in one being able to sit in the next would probably not be practical today. A strict time limit on legal proceedings from the first court hearing to the Supreme Court of six months is tempting, but clearly unworkable. And the restrictions on freedom of religion didn’t extend to Catholics. But all these are all pretty understandable given the age.
But fundamentally, the document at its heart contained a profoundly radical statement – that all power resides in us, the people, who delegate it to Parliament with limits, not in Kings or Lords or elites. Truly a world turned upside down.
It also represents a long strand in English radical thought, that of individual liberty. This is one that can, and frequently did, go hand in hand with social justice and the principles of organised labour. It’s a lesson that the Labour party forgot during their recent period in office, but will hopefully be re-learned some day. Happy May Day!
PS. ‘Freeborn John’ is now nearly forgotten in his home country, which is a tragedy. His memory is kept alive over the pond where he is frequently cited in the Supreme Court, particularly in relation to the right to silence, a right that he was instrumental in establishing. In a parallel universe where the Agreement of the People had been adopted, it may not be too far-fetched to say that today would be our 4th July, or at least our 17th September.