Repairing British Politics

A Blueprint for Constitutional Change

Richard Gordon Gordon

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847318053
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The constitutional crisis of 2009, sparked by the 'expenses scandal', led rapidly to the questioning of our entire political order. This book presents a major new constitutional analysis of the way we are governed. At the heart of the crisis lay an absence of accountability at the core of government. Repairing British Politics presents some key arguments for constitutional reform focused around a draft written Constitution underpinned by a new principle of constitutional supremacy. This would replace parliamentary sovereignty, which makes accountability more difficult. A written Constitution is not merely desirable; it is a constitutional necessity if Britain is to have true representative democracy. It would change our lives for the better by defining the over-arching values which we consider inviolable. The result would be a more rational, humane and inclusive society based on greater citizen involvement. Without a clear focus, constitutional reform will not happen. The approach taken here is therefore essentially practical and designed to provide a focal point around which a wider debate might be centred. Written in an easily accessible style and including a Glossary of Essential Terms Repairing British Politics is intended as much for the intelligent general reader as for those professionally interested in law and politics. Part 1 sets out a number of arguments in favour of a written Constitution, as well as the most common objections. Part 2 presents a working draft in the form of one possible model for a Constitution. Observations and explanatory notes are attached to each section of this draft Constitution. This model Constitution is intended as the first stage in a public debate, designed to provoke further discussion about the content and method of legislating into law a written Constitution. Part 3 contains the draft of the Act of Parliament that would be needed to introduce any form of constitutional change. We are currently facing a crisis of trust in British politics. Whichever party forms the government the questions raised in Repairing British Politics will not go away.

1

Setting the Scene

STARTING FROM SCRATCH

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.

Paine wants to start again with a tabula rasa. With the examples of the American and French revolutions fresh in his mind, and as a direct participant in many of the dramatic events that were unfolding in those countries, his approach is uncompromising:

Man has no property in man; neither has any generation property in the generations which are to follow ... I am contending for the rights of the living, and against their being willed away by the manuscript assumed authority of the dead.¹

It may be thought that we need some of Paine’s iconoclasm today as the United Kingdom seeks to extricate itself from its most significant constitutional crisis since 1945.² The events that led in 2009³ 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 dubious claims. They were able to do so in a culture that encouraged greed by fostering secrecy.

Misleadingly dubbed as an ‘expenses’ scandal,⁴ it 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, who had resisted information disclosure in the fashion of a shop steward opposing wage cuts and redundancies, was despatched to the House of Lords when the information on bogus claims came pouring out anyway through embarrassing leaks to the Daily Telegraph.

With an election looming, the Government and Opposition started to bang the drum of constitutional reform. As The Times put it, ‘an intense race to shake up the political system has begun as Gordon Brown and David Cameron compete to look more radical than each other in the wake of the expenses scandal’.⁵ Yet, appearances can be deceptive. On Andrew Marr’s breakfast show the Liberal Democrat leader Nick Clegg claimed that despite the rhetoric, ‘an elaborate establishment stitch-up’ was taking place and that the major parties were ‘colluding’, having failed to understand the depth of public anger and ‘the breadth of reform that is now necessary to clean up British politics for good’.⁶

Whether Clegg is right or not about collusion, politics has become the art of understanding how short the public’s attention span can be. The most successful politicians are those who find ways of spinning news to distract. It can hardly be doubted that without intense pressure being brought to bear on central government—of the kind it suffered in the aftermath of the expenses fiasco—little will happen.⁷

In this book I argue that inertia should not be allowed to take over. If it is, the moment for significant change will have passed. It may not arise again for several hundred years. For a few, fleeting months in the summer of 2009 it looked as if the sun was breaking through to light up the opacity that is our glorious, unwritten British constitution. Yet, even as these words are written, the shadows are threatening to descend.

WHY WE NEED A WRITTEN CONSTITUTION⁸

The central idea driving Repairing British Politics: A Blueprint for Constitutional Change is that of triggering a public debate focused on a draft written Constitution for the United Kingdom, underpinned by a new principle of constitutional (or popular) sovereignty in place of the traditional principle of parliamentary sovereignty.

Although my own preferences are clear, I stress that the book is not a campaign advocating a written Constitution; rather, the intention is to initiate a debate as to whether we should have one.

We cannot avoid the fact that we are living through a period of acute national misgiving. Our vaunted national autonomy seems precarious in the face of European diktat and global capitalism. Many of our politicians appear as ineffectual as they have demonstrated themselves to be self-interested. Time-honoured institutions such as the House of Lords, the banks and the police appear increasingly unfit for purpose.

This book has a specific thesis. It suggests that our profound disillusionment with politics can only get worse with the ‘constitution’ we have; a ‘constitution’ which is out of touch with the reality of the modern world. Our disaffection with politics is exacerbated by a constitutional settlement in which the spoils of victory following the power struggle between a monarchy claiming absolute power and Parliament all went to Parliament but in which the people were left out. It is argued that a written Constitution is not merely a desirable objective; it is in fact a constitutional necessity if true representative democracy is to be achieved in Britain.

Despite this, I should make it clear at the outset that I do not advocate that ‘the people’ should simply be able to vote on anything and everything affecting the process of government. That would be unrealistic. Any constitution needs checks and balances, and an unrestrained system of public voting would not provide this. My argument is that the constitutional principles that govern our informal, unwritten constitution have themselves got out of control and have ceased to provide the best mechanism for good and effective government.

Repairing British Politics asks what a written Constitution based on constitutional (in substance popular) sovereignty might look like and how it might be brought into being. It contains a possible model in the form of a draft Constitution, to which are attached Observations and Explanatory Notes. There, the main issues are discussed alongside a presentation of arguments for and against the various proposals that are set out.

However, this ‘Constitution’ is merely intended as the first stage in a public debate rather than as a series of suggested set-in-stone reforms. Even if—which is by no means obvious⁹—there were in principle strong support for a written Constitution, the drafting begun here (without professional drafting input) and most, if not all, of the ‘answers’ that appear in this (sacrificial lamb) Constitution would be likely to be torn apart during the course of that public debate. But such debate has not happened. It will never happen without a clear focal point around which certain threshold questions can be confronted.

What are these questions? I suggest that there are three:

• Should we, as a people, endorse the principle of a written Constitution?

• (If so,) what should be the content of that Constitution?

• What process should be undertaken to answer these two questions?

A practical starting point for thinking about whether we want a written Constitution is likely to be whether (and if so, how) it would affect our lives. The institutions that have developed in the UK over time and that, as a whole, make up most of our unwritten ‘constitution’ reflect, in part, a characteristic British pragmatism. They have evolved organically and in that way we have been able to distance ourselves from the revolution and social unrest that characterise our European neighbours’ constitutional histories. After a fashion 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, may seem at best pointless and at worst threatening.

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.

The argument advanced in Repairing British Politics is that a written Constitution for the UK would change our lives for the better in a number of practical ways. Underlying the constitutional shift advocated in these pages is an empowerment of the people. As a doctrine, parliamentary sovereignty has taken us a long way from the successive eras of feudal monarchy, Henrician despotism, and botched Stuart absolutism (though the ruling monarch, in theory at least, continues to hold a measure of power over Parliament).¹⁰ But parliamentary sovereignty, in constitutional terms, should be viewed as but one stage in the course of society’s development, rather than as a necessary end-point.

Implicit in the thesis presented here is that with a written Constitution defining our over-arching values we would become a more responsible, more accountable society, and that with greater citizen involvement in the form of a Citizens’ Branch of government we would also be more inclusive.

If the changes suggested in this book are to escape the fate of merely providing food for thought at middle-class dinner parties, the ideas of ‘responsibility, ‘accountability’ and ‘inclusiveness’ (political buzz words at the present time, often used to secure electoral advantage) need to be made real; things to which people as a whole can relate on a personal level. We are not individually responsible if we play no part in political decisions. MPs are not accountable if they can simply hide behind the notion of parliamentary sovereignty to resist strict controls over their expenses claims or to prevent us having at least a measure of control over the other ways in which they exercise power over us. As a society we are not inclusive if we break off into atomistic groups (criminal gangs, bankers, MPs) driven to different degrees (depending on the group) by herd instinct and self-interest.

A written Constitution would not immediately change these things, but it would contribute to improving them by giving people more power in terms of how they are governed. A blueprint for constitutional change of the kind found in a written Constitution is designed to remedy the apathy and indifference that fester like a cancer within British politics at the present time.

We are not an oppressed society like those—at least at the time—in South Africa or India that had to devise their own written Constitutions more or less from scratch. But it is in a climate of apathy and indifference that freedoms come to be sacrificed. A climate in which things which seem to work and so are tolerated can change into much more hostile and threatening weather which, overcome by a kind of creeping paralysis, we are powerless to resist. Today it might be prolonged detention of terror suspects without charge or draconian libel laws—which do not affect most people. But tomorrow it could be wholesale invasion of our privacy (a national DNA database) or abandonment of the rule of law¹¹ as we have come to recognise it (scrapping the presumption of innocence in criminal trials).

Power corrupts, and absolute power corrupts absolutely. Parliamentary sovereignty entails a claim to absolute power on the part of Parliament. The logic of those who defend it is to resist the situation whereby MPs surrender control over their expenses claims to unelected civil servants (such as Sir Christopher Kelly) because to do so is, it is suggested, to violate parliamentary sovereignty. The same logic would resist a UK Supreme Court having stronger powers to protect fundamental rights on the basis that this would offend parliamentary sovereignty by offering ‘its own subtle challenges to constitutional norms’.¹²

A written Constitution of the kind proposed here would move in the opposite direction, by creating new institutional checks and balances, including the establishment of a Citizens’ Branch to engage citizens directly for the first time in the business of government.¹³

Yet, even if there were to be widespread support for a written 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?¹⁴ Or should we strike out boldly in new directions, and, if so, what new areas should a written Constitution encompass? In this book I suggest that the time is ripe for us to chart a new course. External ‘constitutional moments’ in which momentum for change exists are extremely rare. Further, no written Constitution can co-exist with parliamentary sovereignty. The two are mutually exclusive because the institutions of government are bound by the terms of such Constitution and, therefore, no single institution can possess potentially unlimited sovereignty. Under a written Constitution the people are sovereign. So, charting a new course is inevitable once it is accepted that there should be a written 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 different.

These, then, are the shapes of the main arguments. But obtaining any consensus on the principle and possible content of a written UK Constitution will take much time. There is bound to be disagreement along the way.

OUTLINE OF THE BOOK

This book seeks to kick-start the debate and to suggest a framework within which it might usefully be conducted. It is divided into three Parts. In this Part, Setting the Scene, I briefly present some of the ideas that might drive and be included in a wr...