A Blue Print for Change

With the general election looming, Richard Gordon QC argues that the price of restored trust in democracy may be a codified constitution

Is it time for the UK to have a written constitution? In suggesting that we had no constitution, the 19th Century French political theorist Alexis de Tocqueville was wrong. Britain does have a constitution but it is old-fashioned, top-down and—as far as the rest of the free, democratic world is concerned—of a fast-disappearing kind.

What causes confusion is that, unlike us, nearly all democratic States have a written (in the sense of codified) constitution. Only Israel and New Zealand join us in relying on a nebulous body of rules, some contained in Acts of Parliament, some in constitutional conventions, some scattered around in the most diverse sources. The expenses scandal and the ensuing loss of trust in politics led many (myself included) to think we needed fundamental change.


Disintegration of the political order

History provides a refreshing parallel. In his Rights of Man, published in 1791, Thomas Paine argues for a radical brand of republicanism that will sweep away the old order; the dead hand of hierarchical authority embodied in the autocracy of George III. His target is the conservative Edmund Burke, the defender of tradition, experience and precedent as guardians of an unwritten constitution.
It may be thought that we need some of Paine’s iconoclasm today as the UK seeks to extricate itself from what many—because of the insidious weakening of trust in Parliament—consider to be its most significant constitutional crisis since 1945. The events that led in 2009 to a perceived disintegration of the political order started with something as seemingly banal as MPs trying to compensate for relatively low salaries by swelling their allowances with morally (and in some cases legally) dubious claims. They were able to do so in a culture within the Houses of Parliament that encouraged greed by fostering secrecy. This led to a knee-jerk clamour for constitutional reform from politicians and to a more general questioning of our entire political setup by the media. The Guardian launched its “A New Politics” series, featuring pundits and celebrities weighing in with piecemeal (if often inconsistent) proposals for change. Other papers and periodicals quickly followed suit. The hapless Speaker of the House of Commons, Michael Martin (in common with a number of MPs), had resisted information disclosure on MPs’ expenses in the fashion of a shop steward opposing wage cuts and redundancies. The information on bogus claims came pouring out anyway through embarrassing leaks to the Daily Telegraph.

 

Banging the drum of reform

With a general election in prospect but then nearly a year away, the government and the Leader of the Official Opposition Party started to bang the drum of constitutional reform.  At the Labour Party Conference last October, Gordon Brown became an unexpected convert to the virtues of the “alternative vote” electoral model and a post-election referendum on it. For his part, David Cameron promised to “seriously consider” the option of fixed term Parliaments, said that he would curb the power of the whips and publish all Parliamentary information online. Most controversially, he has proposed a Sovereignty Act which would “reaffirm” Parliamentary sovereignty and prevent the Queen giving Royal Assent to Bills that increased the power of Brussels.

Yet, a year or so on, with the election now just around the corner, little has happened. There has been some cosmetic, short-term tinkering in the government’s long-awaited 2009 Constitutional Reform and Governance Bill (still not, at the time of writing, on the statute book). The Parliamentary Standards Act 2009 was rushed through in indecent haste and appalling drafting in frenzied response to the clamour over expenses. These measures apart, the drums have gone silent. The most successful politicians are those who find ways of spinning news to distract. And, in the aftermath of the credit crunch, there is plenty to distract us away from the idea of reforming our constitution.

 

A riddle

In a limited sense the UK already has a written constitution because it has written laws some of them of a constitutional nature. It lacks only a codified constitution. But this distinction is crucial. As expounded by A V Dicey in his seminal Introduction to the Law of the Constitution first published in 1885, Parliamentary sovereignty, our over-arching constitutional principle, states that laws may be made and unmade by Parliament at any time and so are not in any meaningful sense entrenched. In post millennium Britain the principle, as enshrined in the Human Rights Act 1998 (“HRA”), expressly prevents the courts from being able to guarantee protection of fundamental rights by leaving statutes with full legal validity even where they are incompatible with the European Convention on Human Rights.

Even if (unlike the HRA) an Act of Parliament purported to contain entrenchment provisions such provisions could, under Parliamentary sovereignty, easily be repealed. It is the entrenchment of constitutional provisions that creates the dividing line between a proper codified constitution and an organically evolving set of laws that may be written down but can be repealed by a majority (over 50 per cent) vote in Parliament. In a codified constitution laws would be entrenched in the sense that certain provisions, most notably those protecting the most fundamental rights, would be irrevocable. Other constitutional provisions would be embedded by permitting amendment only in carefully defined circumstances including the requirements of a referendum and a high majority Parliamentary vote in favour of change.

Parliamentary sovereignty is a riddle. Its origins have never been satisfactorily explained. In the recent Parliament Act 1949 challenge in the House of Lords (see Jackson v Attorney-General [2006] 1 AC 262), Lord Steyn and Lord Hope suggested that the Parliament Act was a construct of the common law and that the judges had ultimate control over its longevity. But this view is by no means generally accepted. Indeed, in the same case Lord Bingham expressly disagreed with it observing, instead, that Parliamentary sovereignty (successfully enacted by Parliament in the Bill of Rights) had the precise effect that the courts could not interfere with laws passed by Parliament.

Whatever its origins, Parliamentary sovereignty is fundamentally anti-democratic. No one claims that it has been endorsed as a constitutional principle by the electorate. Indeed, its supposed 17th Century provenance means that it developed as a constitutional principle some 200 years before even embryonic suffrage in the Great Reform Act of 1832.

The fact that general elections are required to take place every five years does not mean that the electorate has voted on Parliamentary sovereignty. In modern Britain there simply is no real choice involved in much of what passes as an electoral “mandate”. Not only may no main political party offer a real choice at all; even if it does, the electorate faces a binary-computer electoral model in which votes are cast for a party rather than for a policy. It follows that voters may agree with some of the policies of one party and some of the policies of another but can only, in the end, vote for one party. A codified constitution has not appeared as a proposal in past manifestos of the Conservative or Labour party and will not appear as a proposal in the 2010 election manifestos of those parties.

 

Striking out in new directions

Even if there were to be widespread support for a written and codified constitution in principle, its detailed content would present another, entirely different, set of issues. Should we simply catch up with the organic unwritten constitution that is modern Britain and put it in writing? Or should we strike out boldly in new directions, and, if so, what new areas should a written constitution encompass? Under a codified constitution the people rather than Parliament would be sovereign. So, charting a new course is probably inevitable once it is accepted that there should be a codified constitution. By the very act of adopting such a constitution, we cast ourselves into a new constitutional settlement in which the over-arching principles affecting government are, necessarily, different.

With popular sovereignty as the mainspring of our constitution (that is the principle that the legitimacy of government is determined by the consent of the people in a delegation of power under a codified constitution), a fundamental change would be effected whereby instead of being accountable only to itself, Parliament (and the Queen in Parliament) would be subordinate to the terms of the constitution. This would be true of all the organs of government.

A number of changes would, then, be logical. Under such a codified constitution, the monarchy would need to be modernised and made subordinate to the constitution. This would certainly entail transferring prerogative powers never used in modern times to the executive by statute and making their exercise subject to judicial review so that the monarch’s authority became purely symbolic. 

The Church of England would probably have to be disestablished. Retaining the monarch as Head of State with essentially symbolic authority does not necessarily entail disestablishing the Church of England (of which the Queen is the Supreme Head). However, separating Church from State is a necessary precondition of a modern, secular constitution in which recognition of multiculturalism is an important foundation.

In order to ensure a genuine separation of powers, Parliament would have to be strengthened against an over-mighty executive. The House of Lords would have to be substantially elected rather than appointed in order to ensure democratic legitimacy. Our creaking first-past-the-post electoral system (used only in general elections) would probably be the first target in a wave of reforms necessary to give voice to a true representative democracy.

Importantly, too, the Supreme Court would have powers under a codified constitution to strike down unconstitutional laws by, in appropriate cases, being able to grant declarations of unconstitutionality. Such powers would be necessary precisely because of the need to ensure that the constitution, as supreme law, was properly enforced. The reference point for a law’s validity would be the constitution itself.

I can hear the dissentient voices only too clearly. After a fashion, it will be claimed, our constitution—haphazard as it may be—“works”. To move from an informal arrangement of that kind to a formal written constitution, itself usually the product of a crisis in national affairs, is at best pointless and at worst threatening.

 

Do we have the “constitution”?

But there is another side to this. The current apathy that seems to have triggered rapidly declining electoral voting patterns is part of a more general malaise in which we, as citizens, feel powerless to affect events about which we feel strongly but over which we have no control (the Iraq war is a notable recent example); a malaise in which the top-down government that we have—itself the legacy of our history of absolute monarchy—leaves us politically disillusioned and at times (“expenses” being a notable recent example) profoundly mistrustful of the good intentions of those who exercise power over us.

But do we have the “constitution” for reform? Unless we do, we will have to be content with what we have. And what we have is the outmoded doctrine of Parliamentary sovereignty; the palest of shadows of the popular sovereignty to which we are entitled if we want it.

Richard Gordon QC, Brick Court Chambers, is the author of Repairing British Politics – A Blueprint for Constitutional Change (Hart Publishing, 2010).

 

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