Crowdsourcing a new UK Constitution

LSE is beginning a project in collaboration with Democratic Audit  to draft a new constitution for the UK by “crowdsourcing”, and last night’s launch event was fascinating and fun, as you’d expect with Professor Conor Gearty leading the discussion. David Blunkett MP called Gearty “LSE’s Bob Monkhouse”, an affectionately rude way of acknowledging Gearty’s wit and way with an audience. He’s a great communicator on law so if you can hear him speak, you should.

He began by asking what values were missing from the British constitution now – collective rights and something called universalism were suggestions from the audience – and suggested that long-termism might be the biggest gap, with our current political system focused on the short term. The evening was a mix of discussion of that sort (what John Strafford, who was in the audience, called “academic froth”), short contributions from the panel and interactive voting on issues like Does everyone deserve to be treated equally? Initially, 70% of the audience agreed they did, but after a short discussion – Carol Harlow saying it depended whether we meant equal treatment in terms of money, or procedures, or in court, and David Blunkett suggesting people should not gain access on equal terms with others to entitlements they hadn’t earned equally – that share went down to only 46%. Writing a constitution would be “damned hard”, David Blunkett commented.

Blunkett was the first panelist to present an argument, in his case that the right to state protection was fundamental. This is an interesting idea, familiar in one form but I think perfectly reasonably cast in terms of rights. The state, on this approach, cannot simply focus on the rights of, say, Abu Qatada, but must balance them against the rights of those who need protection from him. Blunkett made clear he’s well aware of his red-toothed reputation as Home Secretary, and emphasised repeatedly the need for constitutional protection to come through the democratic process rather then by courts, but he had some kind words for lawyers:

People like me have got so aggravated with lawyers, we’ve forgotten they are actually essential.

Two thirds of the audience agreed that the state should guarantee a minimum standard of living, and that vote remained solid in spite of powerful points made by Carol Harlow, who said she thought such social guarantees should be a matter of law and policy, and that the state

should just be getting on with that, not worrying about whether it’s in the constitution

and by Dr Lea Ypi, who said questions of distributive justice like this cannot be considered apart from the property system in a society.

Carol Harlow made the case against a written constitution in principle. Constitutions tend to be deliberately antidemocratic, she said: they’re

for the people but not by the people

her prime example being the ill-fated “European Constitution”. This is not a “constitutional moment” for us, she said, in which we needed to mark a fresh start. Our current institutions are stable and well embedded, and their flexibility is an advantage right now since we don’t know where the next few years will take us, with one referendum certain to take place in Scotland and another, about the EU, possible in a few years. The wrong things tend to get into constitutions, she argued – like the right to bear arms – and the right things get left out, so that for instance the courts in American ended up being a barrier to abolishing slavery and to women’s rights. Finally, she said written constitutions shift power unacceptably towards judges. while she admires the German Constitutional Court, she would not want the UK to have a constitutional court of that sort.

Richard Gordon QC argued for a written constitution, saying he’d written his draft, in his book Repairing British Politics, in “white heat” following the 2009 MPs’ expenses crisis, which had got him interested in politics for really the first time. He compared Parliamentary sovereignty, the keystone of the unwritten constitution we have, to papal infallibility, calling it

a giant confidence trick.

He said he agreed with much of what Carol Harlow had said except that whether the right or wrong things get into a constitution simply depends on how you draft it. Parliamentary sovereignty he said had

no respectable historical basis, and no respectable democratic basis

and it is, he said

a myth and an evil.

We have to get rid of it, he said, and the only way to do so is by means of a written constitution.

Lea Ypi said one of the critical questions is how a constitution that’s democratic at its origin can remain democratic by building in opportunities for political agency and for deliberative as well as representative governance. The points she made about process implied she felt the process of discussing a possible constitution was as important as any outcome.

Politics is always about elites and power

she said. It’s up to the people to use the processes open to them to effect change.

I was encouraged that others in the audience apart from me were resistant to a written constitution as a panacea for Britain: Tony Holland reminded us you can get rid of Parliament but not so easily of a constitutional court. But Richard Gordon fired back at naysayers, asking:

Who on earth voted for Parliamentary sovereignty?

Surprisingly enough the vote on a written constitution was a dead heat: 41% for, 41% against.

I’m firmly against a written constitution for Britain, but I think this is a brilliant project that’ll be interesting not just in terms of its product but because of what happens along the way. I encourage you to get involved.