Who needs a constitution?

21 May 2007

A British constitution - a real, written one? Gordon Brown has begun to open a portfolio of ideas as he approaches his prime-ministerial moment, and this - we are told - is one of them. Is he serious? He is being supported by Jack Straw, veteran of many ministries and Brown's campaign-manager in what became (in the absence of a rival candidate) the latter's election-by-default to the Labour Party leadership. Straw's reputation for not backing losers thus gained another notch. Something may be up.

A British constitution - a real, written one? Gordon Brown has begun to open a portfolio of ideas as he approaches his prime-ministerial moment, and this - we are told - is one of them. Is he serious? He is being supported by Jack Straw, veteran of many ministries and Brown's campaign-manager in what became (in the absence of a rival candidate) the latter's election-by-default to the Labour Party leadership. Straw's reputation for not backing losers thus gained another notch. Something may be up.

It's said that Gordon Brown wants to set up a constitutional convention. This is an idea borrowed from Scotland, where the cross-party constitutional convention established in 1989 was able to agree on the outlines of devolution and the future structure of a Scottish parliament, duly delivered by the Labour government elected in May 1997. But what, almost two decades on, would a British convention be able to agree on?

Its minimal outcome could be a bill of rights, doing little more than pasting existing human-rights legislation into an imposing new frame. Possibly it could invent a "constitutional court", empowered to test new laws against the bill of rights and if necessary strike them down. Possibly it would include a modernisation of electoral law, introducing to United Kingdom elections a form of the proportional representation introduced in Scotland, Wales and Northern Ireland as part of the post-1997 "devolution settlement".

But this is not what the rest of the world calls a constitution. These adjustments would be welcome but minor tweaks to what already exists. Nothing fundamental would change in the old United Kingdom power structure. And it's important to understand just how old and outdated that structure is.

openDemocracy's new blog "Our Kingdom" has contributions from members of parliament, freedom-of-information campaigners, journalists and analysts in a conversation on the future of Britain

Memory vs contract

It all goes back to the English 17th century (and the structure is essentially English, merely extended to Scotland after the 1707 Treaty of Union). In 1688, the so-called "glorious revolution" overthrew the absolute monarchy. But in doing so, it simply transferred the principle of absolutism from the monarch to the parliament. To this day, parliament is absolute and sovereign in just the way that the Stuart kings wanted to be. Its decisions overrule all laws, and can be changed or revoked at a moment's notice. No "rights" can stand against the will of this sovereign parliament, which can assert or abolish them as it pleases. It also follows that no doctrine of popular sovereignty can exist in Britain. In this state, power flows from the top down, not upwards from the people to their governors.

It could be said that this is a constitution for tyranny, in theory giving a prime minister who dominates parliament unlimited, even dictatorial power. And yet England, later Great Britain, has on the whole been celebrated for the relative mildness and tolerance of its governance. For that, the British can thank the legacy of the earlier English revolution of the 1640s, which failed but left behind it a memory of militant democracy and equality.

This system worked well as a way of limiting royal power. But in a later age of mass democracy, as the state enormously expanded its intervention in society, it became oppressive and restrictive. Almost everywhere else in the world, and especially in continental Europe, the ideas of the Enlightenment and the French and American revolutions had seeded "republican" constitutions. There, power was deemed to rise from the base of the pyramid and flow upwards (popular sovereignty). It culminated in a "supreme law" or written constitution which was above all other laws, parliaments or individuals, and which in effect spelled out the rights of the people - the terms of the contract which allowed a government to require obedience from its citizens.

Also in openDemocracy on Britain's political future:

Christopher Harvie, "Union in a State: a Scots eye"
(16 January 2007)

Roger Scruton, "England: an identity in question" (1 May 2007)

Anthony Barnett, "What will Gordon Brown do now? " (11 May 2007)

Tom Nairn, "Not on your life" (15 May 2007)

The English exception

So the English/British system of parliamentary absolutism is both archaic and unique. But, even today, very few people in England are aware of this isolation. The notion of a supreme constitution is quite unfamiliar and bewildering. A group of English students was recently asked on radio what a written constitution might do. They were puzzled. Some suggested that it might lay down enforceable policy targets - like maximum health-service waiting times.

Such lack of imagination, such ignorance of the power and energy of democratic institutions rooted in the sovereignty of the people, is widespread. No wonder that the English use the word "republicanism" as if it meant no more than "getting rid of the monarchy", and had nothing to do with the democratic structures used by almost the whole modern world beyond the Channel.

Let me give an example. In 1986, Margaret Thatcher abolished the metropolitan county councils, the elected big-city authorities which were almost all in Labour hands. In so doing, she abolished the Greater London Council, the democratically-elected government of a city with a bigger population than Hungary. Her authority for doing this was no more than a simple majority vote in the House of Commons.

There were loud protests, of course. But the point is that, if she had done this in any other west European country, she would have been instantly impeached and arrested. She would have faced trial for an outrageous breach of the constitution and its guarantee of the citizens' rights, a crime defined in most republics as "high treason". Almost certainly, Mrs Thatcher would either have been sent to prison or allowed to bolt into exile. If the West German chancellor of the day, Helmut Kohl, had put Lower Saxony under direct rule and abolished its government, he would probably still be in Stammheim jail, along with the survivors of the Baader-Meinhof gang. But did anyone in London make that contrast? No, nobody.

So grafting a genuine written constitution onto Britain, as opposed to a flimsy sham, is going to be an extremely tough struggle. A constitution which is worth anything is not just a proclamation of civic rights in big letters. It is the keystone of an arch. It's the completing act of building a whole system of democratic institutions around the idea that power flows from the base upwards, that the people make the state, that governments are only hired to do what people can't do for themselves.

In the UK state, this means standing the whole antique power-structure on its head. It means smashing its 300-year-old tradition of centralism. It means tearing up and burning its tradition of official secrecy - that all knowledge belongs to the crown, unless the government chooses to make an exception.

The arena of struggle

Here it's worth noting that more and more blobs of constitutionalism have begun to float on the surface of the old English pond. The UK's membership of the European Union, agreeing to obey Brussels in certain matters, is really a constitutional document. So is the 1707 union treaty with Scotland and its new annexe, the 1998 Scotland Act. The Official Secrets Act is now qualified by freedom-of-information legislation, allowing British subjects to demand (not always to get) information which the state in unwilling to disclose.

A Human Rights Act was passed in 1998, incorporating the European Convention on Human Rights into English law. And a big growth area for lawyers is "judicial review" cases, in which a court can strike down an official decision as incorrect or perverse. Here England is edging towards the notion of a supreme law, although the courts would not yet dream of trying to overturn an act of parliament.

But these are isolated blobs. Will they ever coagulate until the pond is covered by the single smooth surface of a written constitution? It all depends on the determination of Gordon Brown, as the incoming prime minister. Equally, though, it depends on why Brown wants a constitution and what he intends to use it for. If it's for general liberty, then good. If on the other hand it's designed to head off developments Brown does not fancy, such as the increasing independence of Scotland and Wales, then it will fail.

It's been said that Gordon Brown will be the best-read prime minister since William Gladstone. He belongs to a generation of Labour intellectuals who realised in the 1970s that constitutional change mattered. The first translations into English of the works of Antonio Gramsci, appeared in Scotland about then. They helped to convince Brown that the British left was competing in an institutional arena designed to ensure that it could never win. So that arena had to be replaced.

Suddenly programmes like decentralisation, the anchoring of human rights in law, even electoral reform ceased to be Liberal diversions from the socialist struggle. They became the conditions for a new Labour party to seize and hold political hegemony. After the death of John Smith in May 1994, Brown became the driving force behind Labour's devolution plans, rammed through as the new government's first priority in 1997. Left to himself, it's unlikely that Tony Blair would have made the Scotland Act and the Government of Wales Act happen.

Neal Ascherson is a journalist and writer. He was for many years a foreign correspondent for the (London) Observer. Among his books are The King Incorporated: Leopold the Second and the Congo (1963; Granta, 1999), The Struggles for Poland (Random House, 1988), Black Sea (Farrar, Straus & Giroux, 1996), and Stone Voices: the Search for Scotland (Granta, 2003)

Also by Neal Ascherson in openDemocracy:

"From multiculturalism to where?"
(August 2004)

"Pope John Paul II and democracy"
(April 2005)


"Tbilisi, Georgia: the rose revolution's rocky road" (July 2005)

"The victory and defeat of SolidarnoϾ" (September 2005)

"Poland's interregnum" (September 2005)

"Victory's lost sister – the wreck of the Implacable"
(October 2005)

"A carnival of stupidity" (February 2006)

"Good Night, and Good Luck" (February 2006)

"Torture: from regress to redress" (March 2006)

"The case for pre-emption: Alan M Dershowitz reviewed" (May 2006)

(28 June 2006)

"Catholic Poland's anguish"
(11 January 2007)

"Ryszard Kapuœciñski: from Poland to the world"
(25 January 2007)

"Scotland's democratic shame"
(9 May 2007)

A matter of timing

And now? Gordon Brown's motives, his underlying strategy, will be decisive. Unfortunately, it looks as if his interest in constitutional reform has become subsumed in his recent campaign for "Britishness". At a moment when the idea of "British identity" is visibly losing its appeal in England as well as Scotland and Wales, and when polls suggest that more English people would like to end the union than Scots, Brown is battling to head off "petty nationalism" and restore an overarching British patriotism. The Union Jack will be planted on a brand-new British constitution which will list British values (whatever they may be), redefine the state, and firmly close the door on any further drifts towards Welsh or Scottish defection.

It won't work. It's too late. There is indeed a country which needs to be converted to the cause of a written constitution, but its name is England. Scotland, especially, is already a long way down that road and marching without assistance. Historically a more European nation, the Scots have preserved in their legal tradition the idea of Lex Rex, a written supreme law to which both kings and parliaments must bow. In 1988, Scotland's Labour and Liberal Democrat MPs signed the "claim of right", which says quite explicitly that in Scotland sovereignty rests with the people - the precise opposite of the Westminster doctrine of sovereignty.

Especially since the elections on 3 May 2007, which narrowly gave government in Edinburgh to the Scottish National Party, there is no way to bring Scotland back into some constitutional uniformity with the rest of the UK. Even before the elections, pressure was building to expand the 1998 devolution settlement in two ways. Firstly, there are gathering demands to give the Holyrood parliament more of the powers reserved to London (taxation and immigration among them). Secondly, there is growing conviction that the powers of Holyrood and the Scottish executive must be securely entrenched in some sort of constitutional document. In short, a Scottish - not a British - constitution.

Gordon Brown, it's said, is implacably opposed to any further extension of Holyrood's range of government (even less "placable", in fact, than David Cameron's Conservative Party). But he is heading into a dead end. If he wants to be remembered as a great prime minister, he should back out of his doomed "Britishness" enterprise and set off down a different path, leading towards places where he might succeed.

There are two such places. First, he should not hinder but help Scotland to move forward down this chosen track of increasing self-government. It may or may not end in formal independence. Probably it will. What is certain is that it's no longer possible to incorporate Scotland into grand designs for "British" institutions.

A "union" of sorts will survive, but made out of the myriad ties of family, work, memory and genuine affection which link the two nations. Daniel Defoe wrote cynically that the 1707 union was "divided Hearts, united States". But I suspect that, three centuries on, exactly the opposite will turn out to be true.

The other grand project, ensuring a Brown statue in the palace of Westminster, is to secure a written constitution for England - not for Britain. England is rediscovering its identity. To complete that rediscovery, England's institutions have to be dragged out of the 17th century and recast in the forms proper to a modern rights-based democracy.

That would be good for the English. But it would also be good for the rest of the world. Europe, especially, would at last have a common political language with a nation often admired but - in the spirit of its laws - always just out of touch.

Author: Neal Ascherson
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