I’m grateful to Charon for drawing my attention to Richard Gordon QC’s article in the Times last week arguing that it’s “time” for a written constitution. I’m not as impressed as he was, though. I’m thoroughly and firmly against a written constitution for the UK. The current conventional vogue for one, together with Gordon Brown’s occasional loose talk of one, risks steering Britain towards a massive historic blunder. I don’t think Richard Gordon makes a good case for one, either.
I love constitutional change. I think one of the best things about politics in Britain is that there’s continual debate about our constitutional arrangements and the way we protect rights, and as a result, regular and ongoing reform. At the moment we’re discussing changing the House of Lords further, and radically reforming libel law. Not long ago we gave more powers to the National Assembly for Wales, we continue to debate the wisdom of the domestic human rights law system we adopted twelve years ago (which we retain the option of abandoning) and the powers of local government. Just five examples where reform has happened recently, or is expected soon. One of my main complaints against a written constitution is that overnight, its effect would be to freeze our constitution, and make constitutional reform a much less important part of our national discourse as we found we were simply straitjacketed within the entrenched written arrangements we now had and were unable so easily to talk about and make these sort of piecemeal changes. I find it astonishing that this simple point isn’t more often grasped.
But let me deal with some of Richard Gordon’s arguments. He says
Our profound disillusionment with politics can only get worse with the “constitution” we have; an unwritten (in the sense of uncodified) “constitution” that is out of touch with the reality of the modern world.
I admire advocates of a written constitution (and of fixed-term parliaments, PR and every other constitutional reform) for trying to link their cause to the current political crisis following expensesgate. They’re not really linked, though, are they? There have been plenty of financial scandals among politicians in countries with written constitutions, like France and Germany to name only two. Gordon’s remark about the “reality of the modern world” is just a wrong-headed appeal to fashion, and reminds me of a claim I once heard attributed to Carmen Callil, who apparently said Britain can’t “carry on drinking warm beer” (a remark which, if true, shows how little she knew about beer). The fact that something’s in fashion in many places doesn’t mean other places or ways become “unreal” or part of a dispensible past. Richard Gordon’s approach to the constitution is akin to a belief that the food traditions of Italy, say, should be abandoned in favour of fast food because that’s the “reality of the modern world”.
After a brief discussion of the views of Lord Steyn and Lord Hope in Jackson v Attorney General, he goes on
In stark contrast to parliamentary sovereignty, constitutional supremacy makes it clear that power resides in the people and that they have delegated a defined measure of that power to government.
It may do – in theory. But this is an abstract “people” whose abstract “will” is strictly confined within the limits of the supreme constitution. Who, in Richard Gordon’s scheme, wields the undefined measure of power that has not been delegated to political institutions? No one, is the real answer; the power has been abandoned in all but theory, because the constitution allows the people themselves no means of exercising it. But more of that in a moment.
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.
I actually agree with this. Our constitution certainly does work. Anyway, it works just as well as that of anywhere else in the “reality of the modern world”, where other countries have occasional crises about, for instance, hanging chads or, in the case of France, “cohabitation“. To change our entire polity from top to bottom (and abandoning Parliamentary sovereignty would certainly amount to that) would indeed be pointless and threatening.
The 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.
We’re back to the point about the power of the people again. How would a written constitution increase our ability to influence events? No imaginable written constitution would conceivably prevent Parliament from voting for war (which ours did) or prevent a crook (as some people think Tony Balir was) from holding power. Watergate happened in Washington, not London.
A written constitution would decrease the peoples power, in fact. Think about America, where city and state government may enact measures to control guns, yet those measures can be challenged and struck down by judges like Antonin Scalia regardless of the views of the people. In the United States, the people’s choice is not the last word on matters such as, for instance, how gay relationships should be formally recognised. There, liberals and conservatives alike have to wait on legal procedures and the rule of judges to tell them whether there must, or may not, be gay marriage laws and whether or not a referendum is to be respected. Here, if a political party argues for gay marriage or civil partnership, and wins a majority in Parliament, the people’s wishes can be enacted without final judicial approval. Yes, this is a weakness, and exposes us to the risk of intolerant majoritarian rule. I wish critics of our system, though, would accept that the American “sovereign written constitution” model, admirable though it is, also has the serious weakness that it limits the people’s ability to will change.
However, without a national debate nothing will happen. 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.
To call Parliamentary sovereignty “outmoded” is simply rhetoric based on the attraction of fashion, as I’ve said. Richard Gordon wants a national debate – fine. We’ve been having one for at least twenty-two years in fact, and I hope it continues.
But what if he got his way and we did have a written constitution? What would happen to national debate on constitutional change then? It’d end, effectively. Where is the ferment of constitutional debate in the US? It isn’t as lively as it is here, because the written constitution is, in terms of workaday criticism of its workings, simply an unshiftable given. Since prohibition there have only been six constitutional amendments; the Equal Rights Amendment has not been adopted in ninety years of activism in a polity saddled with the useless, genuinely outmoded “right to bear arms”.
If you want the people to rule over institutions like Parliament and the courts, and if you want constitutional reform and improvement to remain a constant issue in our politics, you should oppose a written constitution.