Six months is an eternity in politics. It is hard now to recapture the sense of excitement among constitutional reformers when, astonishingly soon after its formation, the new Brown Government published its Green Paper The Governance of Britain, and spoke of a national consultation on British values and a possible British bill of rights. Since then, the élan that marked Brown's early weeks in Number Ten has dribbled away. Northern Rock, the lost computer disks, Hain's resignation and the prospect of an end to the long boom of the late-1990s and early 2000s have cast a pall over the Government and pushed constitutional issues far down the political agenda. Yet the need for reform is as urgent as it ever was; and the green paper has created a better - or at least less bad - opportunity than we have seen for years.
But to seize it we shall need to keep our wits about us. There are good things in the green paper. Its proposals for strengthening parliamentary scrutiny of the executive and for narrowing the scope of the Ruritanian royal prerogative are welcome, even if modest and in any case long overdue. Unfortunately, however, the paper is full of gaping holes when it comes to the great questions of democratic renewal, the future of the union state and human rights. On human rights it is confused and opaque. It says nothing at all about the two explosive ‘E' words - England and Europe. And it shies away from the crucial issue of sovereignty, central to any constitution whether written or unwritten.
To publish a paper on ‘British governance' without even mentioning that the governance of this country is inextricably bound up with the governance of the European Union, of which we are supposed to be members, reveals a poverty of imagination that almost baffles belief. Britain has been a member of the European Community and later the European Union for well over thirty years. British governments are now constrained in a host of ways by the Union's ‘acquis communitaire'; on every working day British ministers, British officials, British MEPs and British lobbyists are to be found in Brussels, taking part in the endless round of negotiation, coalition building and compromise which forms the stuff of EU politics. Union law takes precedence over British law; the (British) Trade Commissioner has more political and institutional clout in world affairs than any British minister, with the possible exception of the Prime Minister. Such influence as Britain has in global politics derives from its membership of the EU, not from its imaginary special relationship with the United States or its own diminished weight. EU membership has done far more to undermine the venerable notion of absolute parliamentary sovereignty, which lay the heart of the British constitution for around 250 years, than any internal British development.
Precisely how EU membership should be factored into debate on British governance and the British constitution is a moot question. That it must be factored in if the debate is to be worth having is surely self-evident.
The same applies to the other ‘E' word - England. Twenty years ago, proponents of a Scottish Parliament sometimes complained about the ‘silent English'. How could there be a serious debate about Scotland's future, they asked, if nothing was said about England's future? The United Kingdom constitution was a system of interacting parts. Changes in the constitution of one UK nation would be bound to impact on the others. Now things are different. England's voice is still rather subdued, but no one could possibly doubt that it has one (or perhaps several). In part, this is because of the familiar West Lothian question, which Tam Dalyell first raised during the devolution debates of the 1970s. But there is more to it than that. Devolution north of the Border and west of the Severn has changed the political cultures of Scotland and Wales and - still more important - it has also changed the ways in which the Scots and Welsh understand themselves. South of the border and east of the Severn these changes have impacted on English self-understandings in a way that no one foresaw. The long-term consequences are impossible to predict, but to pretend that there will be none would be a form of denial horribly reminiscent of the denial over the European project, which has prevented this country from coming to terms with its true position in the world for more than half a century.
But the biggest hole in the green paper has to do with the ultimate political questions of where sovereignty lies and ought to lie. The constitution of the Fifth French Republic says, in terms, that sovereignty lies with the people of France. The immortal words at the very beginning of the US Constitution - ‘We, the people of the United States' - says the same thing in a different way. Nothing of the sort has ever been said in the mélange of precedents, judicial obiter dicta and statutes which has done duty for a British constitution ever since 1707. For most of the three centuries since then there was no need to: the Crown-in-Parliament was absolutely and inalienably sovereign, and everyone (except the odd Scottish jurist) knew it. But this is no longer true. The Human Rights Act and the devolution statutes knocked huge holes in the old doctrine, and so did the European referendum of 1975 and the devolution referendums of the 1990s. The governments concerned pretended that the old doctrine was still intact and wrote their pretence into the relevant legislation, but no one with eyes to see was taken in. But though the old doctrine is now a shambles, no new doctrine has replaced it. As over the European and English Questions, the British no longer know who they are. We used to be subjects of a monarch. Some of us aspire to be citizens of a democratic state. But at the moment we are neither. We inhabit a crumbling and dilapidated half-way house, full of death-watch beetles.
It is not a happy house. Trust in the system has continued on the downward path it has followed since the early-1970s. Electoral participation has plummeted: in the last election, Labour won a comfortable majority with only 30 per cent of the popular vote and not much more than 20 per cent of those eligible. Non-voters easily outnumbered Labour voters. Gordon Brown knows this, and part of the purpose of his green paper is to halt the drain of legitimacy which has been the most important single feature of the recent history of the union state. But unless and until he and his ministers face the fundamental question of sovereignty, their efforts will be in vain. For though the word "sovereignty" does not echo through chats in the notorious Dog and Duck, the thing will be crucial to any worthwhile project for democratic renewal. Before we can decide what kind of constitution we want, we must decide whether we see ourselves as subjects or citizens. It is as simple as that.
This is much more than academic nit-picking. It goes to the heart both of Labour's self-understanding and of Brown's whole project. For most of the time since it became a party of government after the first world war the Labour Party has been essentially democratic collectivist. It has accepted the traditional constitution, despite its flagrant archaism, in the belief that it could use it to procure beneficial social and economic change from the top down, by pulling the traditional levers of central control.That has been the hallmark of all Labour governments, even of Blair's, despite the Human Rights Act and devolution to the periphery. But it is now clear that that essentially paternalist model of social-democracy has failed. Worthwhile change can no longer be procured from the top, if it ever could be. What Labour now needs to do is to revisit what I think of as the ‘democratic republican' strand in its heritage - the strand that goes back to Milton's thunderous prose and Tom Paine's magnificent audacity: the strand that emphasises self government by free and active citizens in a polity they own. Unless and until it does, and explains how this is enhanced, not diminished, by sharing sovereignty with others in the EU, its social democracy will be crippled and self-stultifying.
From that perspective, Brown's talk of Britishness, British values, and a British Bill of Rights and Duties takes on a new, and potentially worrying dimension. I admire Brown enormously for having the courage to call for a national conversation on these matters; none of his predecessors has dared to do anything of the sort. But in the absence of a clear commitment to replace subjecthood with citizenship - to locate sovereignty in the citizen body as the French and Americans do instead of in Westminster and Whitehall - I fear that ‘British values' will turn out to be restrictive and backward-looking, and that the proposed British Bill of Rights and Duties will make it harder to give effect to the rights already contained in the Human Rights Act. The omens are not altogether encouraging, we should remember. The Government that passed the Human Rights Act is also the Government that let loose a cascade of legislation restricting the rights of the citizen under the question-begging rubric of the war against terror.
Constitutional reformers have a tricky tight rope to walk in the coming months. I believe very strongly that Brown is as good as it gets. It would be folly to undermine him: no better Government is remotely in sight. But we shall not be doing him a service if we fail to argue our corner. This is not a moment for false heroics, but it is a moment for serious argument in a spirit of mutual respect.
Comment and discussion on this article is hosted here, on the OurKingdom blog.
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