Why Tories should back a written constitution
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."
As Vernon Bogdanor argued during his lecture, the Green Paper marks a new stage in the process of constitutional reform. While the first stage was essentially about the re-distribution of power amongst the political elite, this new stage is, in theory at least, focused on redistributing power from elites to the people. As such it offers the opportunity for a proper conversation about where political power now resides in our system of government and whether there is a need for change.
Yet, even in the political class the need for such a discussion is not universally accepted. Talk to most Conservatives about the British constitution and they get all misty eyed over what they see as its almost mystical quality. The 1997 Conservative manifesto reflected this view, noting that our constitution "has been woven over the centuries - the product of hundreds of years of knowledge, experience and history." This is no longer a viable description. The last 11 years have witnessed extensive constitutional change, much of which – such as the abolition of the office of Lord Chancellor – was not properly thought through or based on any real demand for reform. These changes have left our constitution fundamentally unbalanced: power is unequally distributed between the component parts of the United Kingdom; the House of Lords now lacks either the legitimacy bestowed by tradition or by popular election. Yet, when I worked in the Conservative Party Policy Unit before the 2005 election I found it difficult to generate much enthusiasm for a fresh look at the Party’s position on constitution reform, the Party seemed to be stuck in 1997.
There are, in fact, good reasons why the time is ripe for a cross-party debate on establishing a written constitution. The values and traditions that underpin our system of Government are under threat; in particular, the doctrine of parliamentary sovereignty is increasingly impinged by the European Union. The Factortame case, where the European Court of Justice overturned a Law Lords judgement and "disapplied" parts of an Act of Parliament, demonstrated that the uncodified form of our constitution makes it particularly vulnerable to judicial interference.
British membership of the EU also means that the familiar argument against a written constitution, that it would undermine parliamentary sovereignty, is far less potent than it once was. In practice a codified document may help to protect the powers of parliament, particularly if it specified that any future transfer of sovereignty to the EU would be dependent on approval by a referendum.
A full cross-party debate on a written Constitution offers an opportunity for a proper evaluation of the British system today and the extent to which it still embodies the values and traditions that many still take for granted.
Anthony Barnett said:
Mon, 2008-05-12 08:17This is a very important argument coming from the party that has historically provided the base line of power over the British state and is now likely to form the next government. But it does not go far enough. The old constitution was never simply built on THE sovereignty of parliament in an institutional or technical way as academic experts often imply. This, of course, is now dead though not alas buried, not just by judges and the EU but also thanks to the parliaments in Scotland and Wales that has seen authority distributed not just to other sections of the elite but to the people of the small nations.
The 'sovereignty of parliament' included the Lords and the monarch in parliament' as well as the Commons and together they formed a way of rule that was not dictatorial even if it was imperial. It relied upon a strong informal code of behaviour and propriety. It had checks and balances, of a consciously constitutional kind, based on convention. These were if anything broken by Thatcherism before being cynically swept away by Blair.
Two things follow from this story. The first is that it should be a conservative approach to treat British government holistically. But no restoration of the old constitution is possible by writing it down - that is to say by formalising what was essentially informal. There is no way back to the past.