Written Constitution

In an extraordinary interview on the Today programme this morning the Prime Minister single-handedly announced the formation of a National Council for Democratic Renewal.

He did so in the way that it takes a magician only one hand to produce a rabbit from the hat. Only his legerdemain is showing.

"I advocated freedom of information twenty years ago and have been advocating the case for a written constitution for some time," he said. Well, no. As perhaps the person who did the most to persuade Brown to embrace the case for constitutional change twenty years ago, in his Charter 88 Sovereignty lecture, and who has talked with him on the topic since and followed his announcements carefully, I know of no instance when he publicly and unequivocally advocated a written constitution, or even ‘the case for one’ (that magician’s positioning again). He often showed a codified ankle to attract the following of those us who found it attractive. But it was flirt.

I always suspected that what he himself found most attractive about the idea was that he might sit down and write it, to be hailed as the father of Britain.

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.

Anthony Barnett (London, OK): 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. 

Scott Kelly, a researcher for the Conservatives, explains why the party should back a written constitution.

Scott Kelly (Parliament): I recently joined my students from New York University at a lecture by Professor Vernon Bogdanor on the subject of the British and American Constitutions. The leaflet advertising the event stated that “many in Britain are calling for a Constitution”. The author of this leaflet may be surprised to learn that we already have one. What we lack is a written, or more correctly, codified constitution – most of our constitution is already written in one form or another although it has never been codified in a single document.

Although the leaflet may contain factual errors, it is true that the issue of a written constitution has moved up the political agenda. The terrorist attacks of last summer obscured the fact that constitutional reform was central to Gordon Brown’s “big idea”. The Green Paper issued during the first week of his premiership stated that "there is now a growing recognition of the need to clarify not just what it means to be British, but what it means to be the United Kingdom. This may lead to a concordat between the executive and Parliament or a written constitution."

Stuart Weir (Cambridge, Democratic Audit): Richard Holme, or Lord Holme of Cheltenham (being a peer suited him), who has just died, deserves a place in the pitifully meagre pantheon of modern British democrats. Trevor Smith’s fine obituary in today’s Guardian has already set out the important role he played in establishing the Cook-Maclennan pact in 1997 as well as assisting the agreement between the Liberal Party and the Social Democrats and his work in various bodies committed to democratic politics and constitutional reform, not least his own Centre for Constitutional Reform.

Anthony Barnett (London, OK): I'm watching BBC 24 with Iain Dale and Alex Hilton sweeping up the email detritus of Question Time. Discussing the Goldsmith debacle over children swearing an oath of fealty to the monarch, Iain picked up on the member of the Question Time public who pointed out that in the US people swear loyalty to the constitution not the president and showed the kind of overview that the panelists ought to have and in this case didn't. George Osborne was useless. But not as conceptually challenged as Alex Hilton of Labour Home, who in a classic Labour way seemed not to understand what Iain was saying: that we don't have a written constitution and should. I've long thought that the Tories were more likely to propose a new constitution than Labour (if only for good conservative reasons). Alas, David Davis didn't win the leadership.

Anthony Barnett (London, OK): In a sympathetic review of Keith Ewing's lecture this week, Debbie Moss suggests that the Professor is onto something:

Government has to be checked by a reinvigorated sovereign parliament. Ewing is surely right on this point. It must be preferable that our democratically elected parliament prevents the executive from passing statutes that contravene human rights, rather than hoping that judges will step in after the event when many of the measures will have already worked their effects.

Anthony Barnett (London, OK): I've just seen this the opening para of a report by Peter Riddell in the Times (which is still learning the courtesy of linking to websites):

What a difference a few hours make. In the morning, Jack Straw’s heavily qualified hints about working towards a written constitution were welcomed by Unlock Democracy, a leading reform group. Then, in the afternoon, Mr Straw’s full speech, entitled “Modernising the Magna Carta”, received a more hostile response: “what a load of cobblers,” as the OurKingdom website put it.

Anthony Barnett (London, OK): Here is Jack Straw's speech on our constitution in full. Its official title is

Modernising the Magna Carta

This defies satire. Tiring of modernising the 20th century and before even they have managed to 'modernise' the House of Lords, they are now modernising feudualism!

Anthony Barnett (London, OK):  According to ePolitix Jack Straw is on his way to the USA and...

Justice secretary Jack Straw visits the US, where he delivers a speech on constitutional issues. "We now need to think very carefully about whether a British Bill of Rights and Responsibilities should be a step towards a full written constitution, which would bring us in line with the most progressive democracies around the world," he will say.

Anthony Barnett (London, OK): As well as starting websites Sunny Hundal of the Liberal Conspiracy and Pickled Politics is going to set us on course for a written constitution. He starts to spell out the case in a new article in CiF. He takes up the issue from the point of view of the integration of immigrants and the forging of a shared identity,

Anthony Barnett (London, OK): One questioner managed to get back at Gordon Brown in today's press conference, the BBC's Nick Robinson. He posed the issue of the election call by contrasting it to the Prime Minister's declaration of principle that he would listen and could be trusted. Thanks to this, Brown said the following,

Jon Bright (London, OK): Ed Balls was quoted fairly widely for coming out in support of a written constitution at a Fabian fringe in Bournemouth, and his remarks have now been published:

'I do not underestimate how difficult it is. It would take years and be hard', said Balls. With the issue currently being debated within government, Balls said his personal view was that they should take the plunge and embark on a written constitution.

Anthony Barnett (London, OK): Just last night I was talking with an influential Labour advisor and we asked ourselves, 'Where are the Lib-Dems?'. I was arguing that one of the problems with the Government's approach, reinforced by the mood music (sleepy, lulling, intermittent) from the Ministry of Justice which is supposedly in charge of the great national conversation, is that it seems to be in denial about the problems with British democracy which all this effort is supposed to put right. If Gordon Brown wants to see a democratic equivalent of Make Poverty History, which he highlighted again in his speech on Monday and in his answers to the questions, then there needs to be agreement that there is indeed an  equivalent to the problem of world poverty in terms of the UK's democratic deficits.

Anthony Barnett (London, OK): The subscription only section of today's Prospect carries an essay by Anthony King which is the first sustained critique of the Green Paper on the constitution. The tone is bleak and slightly patronising as you might expect but it is serious and refreshing about the ambition, the difficulties and the issues avoided, including the English question to which the professor's solution is to decimate the number of Scottish and Welsh MPs. King asks,

Anthony Barnett (London, OK): In a striking article in London’s pre-holiday Evening Standard (not on line) David Davis had a go at the Chindamo affair. He understood that the decision to let him stay is based on an EU directive not the Human Rights Act, nonetheless the Act was the central target of his piece. The article shows that Davis thinks - but has still not escaped that weird constitutional cowardice that has for so long afflicted Tory attitudes. He writes,

Anthony Barnett (London, OK): With debate bubbling about whether a written constitution is needed to help resolve issues of layered identity and integration, the core anti-argument popped up in response to a feeble Comment is Free article against the monarchy by Graham Smith of Republic that was a response to the wretched John Gray that I blogged yesterday. On the monarchy also what matters is having a written constitution. If a majority vote in a referendum to keep it hereditary it will be a pity, I’d prefer a republic. But I’m a democrat first. What's important is that the monarch swears an oath of allegiance to a democratic constitution which defines the role of the head of state and thus we see the last of divine right. Smith’s article said, mildly and in passing, that he wanted a written constitution and this drew a wonderful example of our ancient regime’s policeman’s plod mentality from “Billy1” (Comment No. 731326)

Anthony Barnett (London, OK): Open Europe, the anti-EU pressure group, have taken the admirable step of publishing a complete English version of the new EU treaty, in effect its - our - constitution. I was surprised that it was not available officially, as the EU translates all its core material into its 23 official languages. But a search of the official EU website did not reveal its whereabouts. So well done Open Europe. Their point is that the government's refusal to give us a referendum on what they argue is 96 per cent the same as the original draft EU constitution is profoundly undemocratic and continues the erosion of British sovereignty. I am sure this is true. What puzzles me is why they and those on the right more generally don't draw the obvious conclusion. It is clearly threatening to be an uncodified entity within a codified one, therefore the first step to ensuring our democracy is to draw up our own democratic constitution.

Graham Allen (Nottingham, MP): There is an air of bafflement in the House of Commons. Last Tuesday Gordon Brown chose democracy as the topic for his first ever set-piece statement in the House of Commons as Prime Minister, and offered the prospect of a route map to a written constitution for the UK. “Of course he doesn’t mean it” said all the old hands. But then today, he chooses to make another statement to parliament - not, you notice, the media - this time heralding a debate on the government’s legislative programme some four months ahead of the Queen's Speech. He said,

Anthony Barnett (London, OK): Just attended the fourth and last of the Smith Institute seminars on ‘Towards a new constitutional settlement’. Vernon Bogdanor and Francesca Klug spoke and the newly returned to government John Denham MP; Dominic Grieve the Conservative shadow Attorney General; and Simon Hughes from the Lib-Dems responded. It was chaired by Jon Snow of Channel 4 News who amused everyone by his bemusement with the rate of change over the last two months. After the first seminar I breached the Chatham House rules by publicising in OK that Jack Straw said he had changed his mind on a written constitution. This time Dominic Grieve was the only person to say he opposed a written constitution. For everyone else it was a matter of either why not, or perhaps but not yet, or intellectually of course but is it feasible, to stop all the excuses about needing to wait (Simon Hughes). Jon Snow asked John Denham in what way he had changed his mind, and his answer was striking. He said he used to be against a written constitution because it would take power away from politicians and give it to judges, now he was favouring one because it would take power away from judges and give it back to politicians! At the end, Bogdanor asked what is the problem to which far-reaching reform is the answer. His reply to his question was, I paraphrase: people now want a direct influence in decisions that impact on them. We will be opening an OK section of the new openDemocracy website soon where full articles can be published, and I hope we will be able to run both Bogdanor's paper and Francesca Klug's who spoke very powerfully about why Britain may now get a new Bill of Rights and Duties.