Anthony Barnett (London, OK): At the end of last month I wrote a post objecting to a phrase by A.C.Grayling. A written constitution should never  be described as "rock solid" and were it to be so it would be failing its democratic purpose. The slip was twofold, a written constitution can't be rock solid (academic point) but also we should not want it to be (political point).

Grayling did me the great compliment of responding swiftly and courteously on a subject that is a great issue. I then broke the First Law of Blogging NEVER POSTPONE A POST! Many apologies. I am engaged in a new project (more on which anon, I hope) that was intensely distracting at that moment and I wanted to gather my thoughts.

The problem with insisting on the argument is that it runs the risk of the narcissism of small differences, when two figures on the edge of a cliff with a landslide approaching and a storm brewing decide to have a punch up! One of the most striking things about British journalistic and political culture over the last twenty years, that I have become very aware of since campaigning for a written constitution as one of the key demands of Charter 88, has been this. For all the fine words and radicalism, and now even when Prime Ministers talk about the need for a new constitutional settlement, this obvious need is rarely addressed and then usually in passing. The media is part of the political class that benefits from the informal, unwritten order. The need for a proper constitution is passed over, drawn back from, or at best referred to as a gimmick.

Of course it is profoundly needed. Of course you cannot have popular sovereignty (ie democracy) without it being encoded in a democratic written constitution. That a well known broadcaster and author who is even an influence on Prospect should bang the table and conclude that the present crisis of liberty and rights in the UK means we should have a written constitution - well three cheers! Hat's thrown in sky! hugs all round! I mean this.

Now, lets get going on the next and really big question, how do we get it? For the process is as important as the outcome, see South Africa, in making sure that it is owned by the people and not the elite. And yes, this has to include issues like the people of England having the chance to vote for their own parliament just like the Scots.

So A.C. and I and so close as to nearly be one. It is only after making this fundamental solidarity clear that I will proceed to insist on this little point. It is a mistake to refer to a written constitition as "rock solid". As well as being technically mistaken it will put people off who want to be won over.

I'm reproducing his post below this, my original one after that, with apologies for those who also commented (esp Keith). You can see that he writes,

A constitution that is disposable at the whim of a currently prevailing majority of the legislature gives us nothing better than today's elective tyranny of the House of Commons, which gives any group the power to do whatever it likes if it has one vote more than the rest combined. By a 'rock solid' constitution I mean one that is not vulnerable to party politics or the accumulating off-piste absurdities of a government that has lost its way, but can only be amended by a major process itself constitutional - thorough debate, a referendum - and which institutionalises checks and balances among executive, legislature and genuinely independent judiciary (with the power to strike down laws in conflict with the constitution).

Of course, and very traditional. It is simply a misunderstanding for A.C.  to think that I don't understand that a written constitution will demand that any changes to it - like introducing detention without charge - will need a constitutional not a simple majority. Of course, I agree and he is right. The point about metaphors however is that they stick in the mind, and this one is a dangerous especially if, as I hope, the debate might take off, at last.

Rocks cannot be amended. "Rock solid" sounds like rock of ages: unchanging. Its authority lying not in a special public process with legal restraints, but it it being over and above any public alteration. But the point about a written constitution is that it is more democratic for not being at the mercy of whims, panics and populist manipulation. It turns us from being subjects, as we still are, hence some of the passivity and cynicism of the population, into citizens. It is a firmer, harder, clearer framework - yes. But rock like? No, rocks are oppressive, fatalistic, elemental.

We already have an unwritten rock over our head, pressing down on us, crushing the democratic air out of a lively and inventive people. Its famous flexibility is supposed to be inescapable, as it has proved. It is a form of class rule. We don't want another one. So - to be clear: A.C. and I agree (and and by the way over 80 per of the voters do too) that we should have a written constitution. But to carry the argument through to its actually getting one, we need to convince people it will be emancipating not imprisoning, and will diminish fatalism not reproduce it.

A.C Grayling's original comment

Dear Anthony - much as I dislike disagreeing with you about anything I must pick you up on the 'rock solid' point. A constitution that is disposable at the whim of a currently prevailing majority of the legislature gives us nothing better than today's elective tyranny of the House of Commons, which gives any group the power to do whatever it likes if it has one vote more than the rest combined. By a 'rock solid' constitution I mean one that is not vulnerable to party politics or the accumulating off-piste absurdities of a government that has lost its way, but can only be emended by a major process itself consitutional - thorough debate, a referendum - and which institutionalises checks and balances among executive, legislature and genuinely independent judiciary (with the power to strike down laws in conflict with the constitution). The US constitution is not immune to ducks and drakes being played with it, as we see from the Bush years; but it has a lot to recommend it, and can of course be improved upon. What is no longer acceptable is for the party currently in power to dismantle, with an egregious combination of facility and stupidity, the rights and liberties gained by huge endeavour over centuries. - Good wishes to you as always - Anthony Grayling

Anthony Barnett's original post - No Such thing as a 'rock-solid constitution'

There  was a short, strong overview of the threat of an authoritarian, corporate cash cow database state by A.C. Grayling in yesterday's CiF. It reinforced the alarm set off by No2ID's Phil Booth in his excellent OK post. I particular liked Grayling's raised eyebrow over Seimens of Germany who are "already supplying 60 countries with a device that monitors and integrates data from phone, email and internet activity". Apparently its system is notorious for throwing up "huge numbers of false positives". I like that phrase "false positives". I suspect it will run and run, as in "We are all false positives now!"

My only objection was to Grayling's stirring conclusion,

We need to stop this assault on civil liberies going further, we need to roll back the attritions they have already suffered, and we need a rock solid written consitution to protect us from those who aim to make us all suspects in the gaze of the unblinking universal eye.

He should know better than that. No constitution, written or unwritten is "rock solid", nor is ever meant to be. Of course he is spot on to see that to roll back the surveillance state we need to constitutionalise our governing settlement. But this is in order for it to be lived in a democratic fashion, not to be set rock solid. Simply to change the governing culture we have to show everyone that our values are rooted in popular sovereignty encoded in a democratic constitition. This is the precondition for stopping the mandarins treating us as colonialised natives. But the constitition that results will be flexible as well as principled, an aid for us to better govern ourselves, a step on the road to emacipation and freedom, not a rock-like fixed point that we will have to bow down to.