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Response to committee - a new Magna Carta?

openDemocracy's founder explains why Britain must go for a fully written constitution, and why a constitutional convention is necessary to achieve that.

Anthony Barnett
Anthony Barnett
6 February 2015

In July 2014 the Political and Constitutional Reform Committee published a report, A New Magna Carta?, which offered three options for proposed reform: (1) a constitutional code, sanctioned by parliament, (2) a constitutional consolidation act which would bring together constitutional laws and convention and enshrine it in statute, or (3) a written constitution. Anthony Barnett responds below.

 

The Committee is to be seriously congratulated on commissioning and publishing A New Magna Carta? Alongside the Committee’s sustained efforts to hold the constitutional activities of the Deputy Prime Minister to account it is a quite exceptional achievement to have laid out a new overview for constitutional thinking and policy for the United Kingdom.

This brief comment will not be able to do justice to the full range of the committee's work and the research and the proposals set out by its team in King's College London headed by Prof Blackburn.

Introduction

I will focus on the following:

  1. The recent context and history of the current constitutional crisis

 to set out why:

  1. The need is for a new overall settlement, hence your option C
  2. Some remarks about the monarchy
  3. The need to include protection from ubiquitous surveillance, the right to publish and free speech and privacy, in any constitution  
  4. How a written constitution can be achieved, the need for Parliament to ‘let go’.

In terms of length - but not importance - my main response consists of 1, because the question that you ask experts and members of the public to respond to concerns the best of the three options: A, a constitutional code; or B, a Constitutional Consolidation Act; or, C, a written constitution. My view is: it has to be option C, a codified constitution is not only desirable it is essential. This is because the old, uncodified constitution is now broken, legally and spiritually. Your report suggests (para 190, p 410) that it may be practical to start with model A, move to B, consolidating the constitution, “before embarking on the more ambitious task of preparing a written constitution for the UK". Such a "building blocks approach to enacting a written constitution" is doomed to fail, however well meaning. Because what the Prime Minister recently referred to as "our system" has lost the will, culture, and coherence that would enable it to reform itself in such a fundamental fashion. Instead, such a process would be a formula for procrastination.

Your Report’s full and fair-minded overview of the history of constitutional negotiations since the 1970s (Paras 133 - 160) shows that despite the unprecedented seriousness of the constitutional changes envisaged and debated, when push comes to shove the centre holds on all too tenaciously. It is essential, therefore, for member of the Committee to understand that Britain is already in what your Report refers to as a “constitutional moment". This being Britain, the deep crisis is hidden to the eye and ear by a smokescreen of scaremongering, scandals and Parliamentary rhetoric, which appear to camouflage its seriousness because such weird theatrics do indeed ‘blow over’. To put this another way, such procedural scandals hide from view the actual constitutional moment. Trying to go from A to B while postponing C will make matters worse. When you are in a hole, stop digging. Neither the sensationalism of the media, nor the glamour of spinning, should distract the Committee from the rumble of the ground giving way beneath your feet as you probe.

1)      The background, the breaking of the old constitution

For 40 years after the Second World War, during the decades of ‘consensus politics’, the constitution was a given. It might be altered, for example with the introduction of life peerages, but it was never an issue of party politics let alone electoral politics. How could it be? The heart of the consensus was that the system worked. Then, when Margaret Thatcher launched her assault on consensus politics her aim was to reverse Britain’s relative decline in the world, not replace or reform the institutions of sovereignty. For her, indeed, the aim was to return the old order to its former glory, as she said at her moment of greatest triumph, “There were those who [feared] that Britain was no longer the nation that had built an Empire and ruled a quarter of the world. Well they were wrong. The lesson of the Falklands is that Britain has not changed.”

Doubtless, her allegiance to the traditional institutions of sovereignty was sincere. But the ‘conviction’ that drove it undid the culture of checks and balances, which, historically, had been crucial to the actual, lived workings of British sovereignty. She released and focused social and economic energy, both positive and negative. But from ‘Big Bang’ to the Poll Tax she swept away the larger ethos of consent and unity that ensured a highly centralized, pre-democratic system its unique political culture and democratic legitimacy. Ironically, perhaps, the way she polarized and marketised society was a constitutional rupture. Later, Geoffrey Howe would write that she came to believe she was the national interest. Naturally, a large section of the population found this insupportably authoritarian, as eventually did Howe himself. Some then asked themselves how it was possible for this to happen in a what we thought was our democracy?

In 1988, Charter 88 took off as the constitutional response to the Prime Minister’s constitutional vandalism. The importance, here, is that it took off. This was thanks to an extraordinary wave of support, skillfully encouraged by those who launched it. [Declaration of interest: I helped draft and later became Charter 88’s first coordinator but was not responsible for its conception or launch]. The first aim was to ensure that its list of specific constitutional demands (see picture) became live issues in the 1992 general election. The call for a written constitution linked them but was not among the primary demands. The strategy was to campaign for the ideas outside parliament while lobbying Labour, assisted by the Lib Dems.

The Charter brought together pre-existing campaigns and concerns: The Scottish Constitutional Convention was an inspiration; the Campaign for Freedom of Information a model of lobbying exactitude, the Labour Campaign for Electoral Reform a vital link to Labour. We held a massive Constitutional Convention in Manchester in the Autumn of 1991 in the run up to the election and the first ‘Democracy Day’, a week before the poll, with over 100 constituency public meetings across the country. Later Roy Hattersley blamed Charter 88 for losing Labour the election.

By then it was clear that Labour needed to renew itself. Indeed, after he stepped down Neil Kinnock signed the Charter. Much more important, John Smith, with Tony Blair in tow as his shadow Home Secretary and influenced by the arguments of Gordon Brown, adopted constitutional reform, announcing his conversion at his Charter 88 lecture in March 1993.

He committed his party to a Bill of Rights, Freedom of Information, reform of the Lords, devolution to Scotland and a referendum on electoral reform, but more important still, he argued for a new settlement, a new overall approach, seeing the failure of parliament itself as central to the need for this. In the unscripted session in answers to questions, the then leader of the Labour Party said,

“Your criticism of Parliament is apt: Parliament is weak in this country. I've been in it for 22 years and I think it's got weaker every single year I've been in it. We just don't check the executive properly in our system… we do have an elective dictatorship. I've come to realise that. I used to myself believe in the sort of mysteries of the British Constitution. My experience over the last ten, eleven, twelve years, like many people, I think, has caused me to change my mind quite fundamentally on that”.

The committee will be more familiar with what happened next. After John Smith died, Tony Blair became leader and inherited Smith's list of reforms. He and his advisers were determined to carry them through to prove that Blair could be trusted as a man of his word, but they did not believe in constructing a new democratic polity, rather they gloried in the strength of unchecked executive power and convince themselves that the reforms were of minor significance (Blair compared the Scottish Parliament to the parish council). Above all they rejected the idea of a new settlement and Blair personally refused to make a speech that presented the changes in a unified fashion.

Before it was clear that Labour would win 2001 election the Liberal Democrats had to be kept on board and Blair signed a constitutional declaration with Paddy Ashdown on 11 June 1998. It concluded with these fine words:

“What we are embarked on and what we are determined to complete, is nothing less than a transformation in the way we govern ourselves in Britain.

We know that constitutional change requires the widest possible consensus and that will take time to deliver in full.

We ask that the support of the British people in putting power where it belongs, in their hands.”

A key driver of the reforms was the then Lord Chancellor Derry Irvine. I spoke with him a year later at Blair’s request after I warned him of the dangers of incoherent reform. Irvine agreed that constitutionally, “the genie was out the bottle”. Blair did not, and said so to the Party Conference.

Later Irvine suggested his reforms were in the long British tradition of piecemeal modification. But this tradition involved pragmatic adjustment after considerable delay and then step by step: it was a process adopted by a confident polity that believed in itself and wished to safeguard its coherence by digesting and absorbing reform at its own pace, confining the dangerous energy of change.

The New Labour reforms were anything but this. They legitimised referendums, created a Mayor of London with the second largest direct personal mandate in Europe after the French presidency, undermined the sovereignty of parliament by creating new ones, lopped off hereditary peers without reforming the Lords, introduced a Human Rights Act that incorporated another jurisdiction into our own, promulgated a Freedom of Information Act that was to lead to the MPs expenses scandal because legislators did not take it seriously. So incoherent was this approach, that in 2005 when the Blair government passed the Constitutional Reform Act creating a Supreme Court, it blithely agreed to legislate, in clause 1, that there is an “existing constitutional principle of the rule of law”, thereby creating the possibility of the Supreme Court striking down legislation that is clearly unlawful.

This was not piecemeal, constitutional reform, it was reform that broke the constitution into pieces.

Alone among the Labour leadership, Gordon Brown had a profound, even historical grasp of what was being done, or rather undone, and realised that they were steering the ship of state into a void. When he became Prime Minister he opened his premiership with a commitment to integrated democratic reform with the possibility of a written constitution. It was not to be.

I do not need to summarise the constitutional charivari of the Coalition for this committee. I hope I have illustrated some of the background to the constitutional moment which the committee is seeking to address. Please do not be taken in by the rhetoric of parliamentary bluster. The Westminster system is no longer capable of sustaining piecemeal reform, it has lost the coherence that motivated and justified gradualism.

You can be sure that the population is well aware of this. When the Scots were offered a genuine choice about the nature of their own constitution in terms of leaving or staying within the United Kingdom they engage fully and wholeheartedly in unprecedented numbers. People right across United Kingdom would do the same if offered the chance of reshaping our constitution for real. But no consultation, or process of soundings, or even public gatherings, that end up back in the House of Commons, which is manipulated as John Smith recognised by a dictatorial executive, will gain the public's support. Quite rightly.

For the greatest constitutional change of all to take place in the first decade of the century upended the traditional order in a wholly positive fashion. It can be traced back to the debacle of the invasion of Iraq when millions of the unwashed took to the streets and many backbench MPs voted against the government and the leaders of the opposition. We, the people showed that we are wiser and more far-sighted than our leaders.

2)      This means C

Not only is it the case that the official political system is now incapable of reforming itself in a coherent fashion, it is also the case that the people of the United Kingdom are now capable and wise enough to oversee its replacement with a democratic, codified constitution.

This is why the committee needs to recommend the country moves as soon as possible to option C and sets out our constitution in writing.

3)      Becoming a constitutional Monarchy

The illustrative blueprint for a codified constitution constitution set out in the committee's report (p. 282 onwards) provides the Head of State in its section 4 and says this position shall be held by her Majesty Queen Elizabeth II and her heirs and successors as Monarch. I am sure this accords with the wishes of the majority. It's very important to recognise however that the monarchy will become a truly constitutional monarchy in these circumstances. The constitution needs to state, therefore, that the head of state does not enjoy monarchical powers. The way this should be set out is with a clause which stipulates that on his or her coronation the monarch will swear an oath of allegiance to uphold the constitution.

Section 5 of the blueprint proposes that the Privy Council shall continue to exist. But this is a secret council of a completely undemocratic kind that can have no place in a modern democracy.

4)      The Inclusion of Modern Liberty

There is something missing from the blueprint. Is extremely well done but it has the atmosphere of an analog document whereas we live in a digital age. The consequences of the microchip are proving transformative in all human relationships and institutions and a new constitution promulgated today that engages the support of the population needs to take account of this. In particular because the British public has embraced the use of new technology with enthusiasm and skill.

For a start the nature of liberty in terms of privacy from surveillance, the right to publish, the nature of free speech, the right not to be bullied or intimidated on the Internet just as one has that right not to be so treated in public - all this need to be addressed explicitly.

5)      The elite must let go

Finally, the committee can also be congratulated on addressing methods of deliberation in its discussion of how to implement codification. There is one central and simple point which needs to be grasped. The country's leaders and its main political parties can and should let go and trust the public. The writing of a new constitution and the issues that need to be put to voters to decide by referendum can only be undertaken by a constitutional convention. This can include a cross-section of members of Parliament but which must be mainly made up of members of the public chosen at random to represent a cross-section of the population. There is enough evidence to show that such a convention given time and support will deliberate wisely and can do so in public.

 

This article is part of Great Charter Convention series.

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