Chris Hawes at The Wardman Wire has written an excellent piece today on constitutional reform arguing against some of the fads of the moment, like proportional representation and fixed-term parliaments. I’ve already written about fixed terms; and I agree with him about PR, too. The right place for it in our system would be in the House of Lords. To have the Commons elected by PR would risk a politicians’ politics of permanent coalition, in which MPs, not voters, choose who will govern, where we will be unable to sack the government, and where our influence over it will be smaller even than it is now. What PR can usefully do, though, is prevent the tyranny of the majority; that’s why it’s perfect for a revising and delaying chamber.
I’m not against all constitutional change. Devolution is a good thing, I think (although there is an English dimension yet to be resolved – I’d have only English/English & Welsh MPs voting on purely English/English & Welsh matters), and I back the Human Rights Act and freedom of information. I wouldn’t oppose a bit more use of the referendum, open primaries for Parliamentary selection, or a recall mechanism as long as it’s triggered by some independent finding of misconduct in office, rather than just political opposition. Tinkering is good.
But what Britain faces now is a political crisis, not a constitutional one, and politicians desperate to cling on to power should not be allowed to use it to toy with the constitution in their own narrow interests. If Alan Johnson is Prime Minister next week, he should not take that as any sort of mandate to bring in PR: that would be an obviously self-serving move from a Labour Party whose best hope of avoiding years or wilderness could be to offer this sacrifice, and coalition, to the LibDems.
Meanwhile, this week’s Prime Minister has launched a laughable “Council on Democratic Renewal” which seems to consist of ministers themselves plus a few great and good invited speakers. The only purpose of this stunt is to allow Brown to pose as “ahead of the curve”. It is the least democratic possible way to propose any reform, and this fag-packet “council” should meet as little as possible.
In particular, the suggestion Britain should have a written constitution is especially dangerous. It may be a superficially attractive idea: it sounds so “modern”, doesn’t it? But many people fail to realise it would mean a total constitutional revolution, abandoning what’s long been the keystone of our democracy: Parliamentary sovereignty. In countries with written consitutions, it is that written document which is sovereign – not democratic institutions nor, ultimately, the people who elect them. In countries like the US and Germany it is unelected judges who determine policy on smoking bans, abortion and gun ownership; in the States, it’s beyond doubt that Justice Scalia is one of the most powerful people in the country. Who elected him? It would be a disaster if Lord Phillips were as powerful here.
I’m a great admirer of the German and American constitutions, believe it or not: both countries had good reasons for adopting written consitutions at the moment they did, each is about as good a system as can be consciously devised by men, and each has stood the test of time. Americans are rightly proud of a system that has worked so well for two hundred years. But Britain’s constitution in the 21st century should not be based on the political ideas of the eighteenth; nor do we need arrangements designed above all to prevent the return of fascist dictatorship. Our constitution has the advantage of having evolved over time – and it has indeed evolved since King and Parliament vied for power, a contest that’s still built in to the American constitution’s frozen music. We’ve moved on since then.
Parliamentary sovereignty is a good, soundly democratic principle. People here would miss it, and only realise what they had when it’d gone. Politicians should stop toying with the fundamentals of the constitution.
Open primaries are by some distance the worst of the suggestions made so far. They strip the local party membership of power, cause candidates to have to fundraise personally (which opens possibility of more corruption), and actually reduces the choice for most of the electorate by resulting in a battle between a lot of similar centrist candidates. The chief advantage of open primaries – preventing the situation where some constituencies will elect anyone wearing the right colour rosette – is much better dealt with by multi-member constituencies voting under STV.
I agree it'd be awful if candidates had to, or were allowed to, fundraise – but that can be avoided if we have strict rules barring them from spending anything at all. Any spending should be done by the party, equally on all primary candidates.
But I think campaigns can be done for very little cost these days, anyway, through blogs and so on, as well as free exposure through local media. We also need a return to a culture of public political meetings. The party hires a hall; all candidates for selection are on the public stump.
I used to be for STV when I was an SDP/Liberal student – but no longer. I'm terrified of the risk of permanent coalitions, and that it'd stop us from sacking the government.
Quite frankly, just reforming this system of expenses is all that is needed. The "change the constitution bandwagon" ought to be parked somewhere.
Buried in Gordon's political grave with him, I hope.
I find it very difficult to see the "danger" of a written constitution approved by popular referendum. Constitutions are key to national identity and, as part of a contract between the state and the individual, set clear limits on what can and cannot be done, on what is owed and what is expected.
The absence of a constitution also impacts on other areas of the law. Read the Chagos decision and the nature of the right to reside – it's not a "constitutional right", only an authorisation given by statute, repealable like everything else. A situation where the state gives and takes as it likes, with little to no control by the courts.
This links with the next point, the "soundly democratic" principle of Parliamentary sovereignty, according to which 646 individuals elected by a minority of the electorate have, together with their appointed cronies in the Lords, the unqualified right to do what they like during their self-determined period of office. There is nothing to prevent the passing of an Ermächtigungsgesetz, indeed this was effectively attempted with the Legislative and Regulatory Reform Act. Who will stop them, the Queen?
Britain needs to update its democracy to avoid a Weimar Republic type of situation, supporting old and outdated concepts (noble as they once might have been) will get the country nowhere.
Surely the Weimar Republic shows the problems that can arise from inventing new constitutions.
You're right, we don't have constitutional rights. I'm not sure Chagossians would have such rights if we did have a written constitution, mind; would it extend beyond the UK? Anyway, though, the problem with constitutional rights is that they can be entrenched today, outmoded tomorrow, yet unchangeable. If you entrench a voting system today, based on the report of some great and good politicians and academics, and then decide you don't like it, it'll be tough luck, you'll be stuck with it.
If you want to get round that by not entrenching the voting system… fine, but it means accepting the advantage on non-entrenched constitutional rules.
Interestingly, the Legs & Regs Bill never was passed, was it, at least in its controversial form? Foreign detainees were in time released from Belmarsh, and 42 days was defeated. Whereas Guanatanamo is still filled with prisoners held by a country with a written constitution.
I'm afraid calling Parliamentary sovereignty "old and outdated" is simply an assertion, a slogan. You need to make the case on the merits, not on the basis of historicism.
Interesting and forthright article. But Parliamentary sovereignty does not guarantee democracy – witness Section 76 of the Counter-Terrorism Act 2008 which makes it an offence to photograph policemen and members of the armed forces without reasonable excuse. The section states that the burden is on the accused to justify taking a photograph.
Taking a photograph?
It is tantamount to making photography equivalent to 'going equipped' under the Theft Act.
And the ability of the courts to rein in Parliament depends on the courts finding enough wiggle room to challenge the precise extent of a statute.
But once a statute is on the books, and if it is clear on whom the burden lies (as with this section of the Terrorism Act) then the rights of individuals are not protected by Parliament – quite the reverse.
It's a slippery slope – not one about which I need worry in 2009 with this government and this society – well, maybe.
But twenty years down the line, when (God forbid) the country has moved to the right and laws are used precisely to curtail freedoms that ought not to be curtailed – then we can look back on a particular brand of the age of stupid and wonder how we gave up freedoms, little by little.
So it is particularly satisfying that photography has clarified what did and did not take place at the G20 protests.
I don't see any spectacular benefit in shying away from broad written statements of constitutional principle – without them we only have the length of our memories to recall how things used to be.
If you accept that the UK has no constitutional rights, can I persuade you to go one step further and admit that the UK has no constitution in any meaningful sense of the term? Is it not true that it all the conventions and royal prerogatives boil down to one thing – parliamentary supremacy: the elected members assuming the former role of the sovereign?
I fail to see the problem with entrenched constitutional rules which would require more than just a simple majority to be modified, as distinguished from major constitutional changes (e.g. the voting system) which would be put to popular referendum (as per Crotty v An Taoseach). Surely this has to be a better and more democratic way of doing things?
The Legs & Regs Act is on the statute book in its current form thanks to the intervention of the Lords. That it was even attempted in the first place shows the failings of the UK system – because so much unrestrained power is concentrated in the hands of a small group of individuals, the potential for wrongdoing is huge.
As Lord Hailsham said in the Sunday Times 19 July 1970:
"It is the Parliamentary majority which has the potential for tyranny. The thing that the Courts cannot protect you against is Parliament – the traditional protector of our liberties. But Parliament is constantly making mistakes and could in theory become the most oppressive instrument in the world."
Re the point concerning Chagos – if the UK had a written constitution, would it not oblige the executive to provide one along similar lines for BIOTs and other similar constitution-less territories?