Godfrey Hodgson is right that the British prime minister Tony Blair and his immediate circle have sought to reshape the constitution of the United Kingdom according to an American paradigm, and right to imply that the paradigm is not merely inappropriate but profoundly incompatible with the day-to-day workings of the countrys parliament. In doing so, however, he misses a crucial point that needs to be emphasised if we are to understand what is really happening.
The American constitution was developed over a long period of public debate, in which some of the best American minds devoted themselves, in a spirit of public service and patriotic zeal, to understanding their past, with the earnest intention of improving their future. They had pondered the English constitution, whose law and procedures they had inherited, not in order to discard it, but in order to understand how it worked, and how it might be made to work better.
When they advocated the separation of powers it was not because they had suddenly captured this notion from the air, but because they had read what John Locke and Montesquieu themselves patient observers of the English political process had written on the subject, and come to see how admirable and how difficult an achievement is this one, which had been discovered by the English (like everything else in their constitution) in a fit of absence of mind. The debates around the American constitution contained in The Federalist Papers are among the precious achievements of modern political thought, worthy to stand beside Aristotles Politics and Montesquieus Esprit des Lois as profound explorations of what is at stake in politics.
Anyone contrasting this with the random constitutional thoughts and proposals that emerge from 10 Downing Street today will be astonished at the sheer effrontery of the prime minister and Charles (Lord) Falconer, the head of his department of constitutional affairs. Indeed, the very conjuring of this office in June 2003 out of thin air and without consultation is a symptom of what I am referring to. One morning Tony Blair wakes up with the thought that we dont need a Lord Chancellor. He tells the press that the office of Lord Chancellor is to be abolished. And that is that.
The prime minister does not bother to inform the Queen who, like it or not, is head of state. He neglects to mention it to parliament, which after all has no real political standing, now that all business is conducted behind closed doors by the cabinet. As for the public debate that such a gesture would seem to demand forget it. Nobody is worth debating with, since nobody (apart from the prime minister and his clique) has any power.
I dont say that the office of Lord Chancellor should at all costs be retained. Maybe the decision is a good one. But maybe it isnt. The point is that this is the very opposite of the American way of making and reforming a constitution. After all, the office of Lord Chancellor is the oldest in the land, apart from that of the sovereign herself. It is responsible for what F.W. Maitland regarded, rightly in my view, as the greatest legal achievement of the English: the doctrine of equity and the concept of the trust. This has proved an effective mediator between executive and judicial powers, retaining the barrier between them while allowing sufficient communication across it to prevent overt clashes. All of this and much more could and should be said in the course of any proposal for reform. But it wasnt.
The same happened recently with the House of Lords the object of a series of botched and last-minute reforms that are proposed not at the end of discussion but at the beginning, the discussion being by way of an astonished cry from those who ought to have been, but never were, consulted. We read in the newspaper that Blair and Lord Falconer are to introduce a new Parliament Act, designed to curtail the delaying powers of the Lords. Who argued for this? When was parliament informed of this? Did the Queen receive any notification? What theory of bicameral government is implied by it? Ask these and all the other questions that will spontaneously occur to a politically minded person and the answer is that there is no answer.
What is a constitution for?
Some, like the editor of openDemocracy and others involved in Charter 88, will argue that it is the absence of a written constitution in the United Kingdom that permits arbitrary acts of vandalism and endless botched reforms. And it is certainly true that, when you have a written constitution, you have to accept the ruling principle that reforms will have to be discussed, justified and made persuasive usually to a two-thirds majority of those entitled to vote on the matter.
But the UKs constitution has been a matter of convention of things put beyond discussion, by the slow evolving politics of a nation governed not by decrees but by common law (i.e. law that arises from the judicial resolution of conflicts). This means that a constitutional vandal can change things overnight, without discussing the change with anyone save his immediate cronies, and maybe not even with them (though cronies form a useful mirror, which never reflects the haggard appearance of the one who looks in it). The extraordinary position in which we find ourselves is that it has become far easier to change our constitution than to pass a law!
This is directly contradictory to the spirit of the American constitution, as this was shaped by the founding fathers. The whole point of a constitution is that it is difficult to change it, since it is the frame that gives sense to the law. Go on changing it in response to every whim of the ruling clique and you undermine not merely the political process, but the law itself. Every time the cronies change the constitution in order to achieve some coveted legislative result, they erode some part of the citizens loyalty, and some part of the laws ability to govern our conflicts and also to heal them.
Lord Falconer, speaking in the debate recorded in this months Prospect magazine, claims that the purpose of the New Labour reforms is to introduce certainty into a constitution that has been culpably vague. In fact the purpose is to remove constitutional obstacles. The Blair-Falconer approach to constitutional reform is to make legislation easier, so that whims can become laws with the minimum of fuss. But the true purpose of a constitution is to make legislation more difficult, so that whims do not become law. The constitution serves as a wall around the law, protecting it from invasion by the interests outside. A proposal for change should be compelled to stand outside the wall for as long as it takes for reasonable people to be persuaded of the need for it.
When Blair proposes reform, however, it is invariably in order to weaken that wall, so that he and his favoured interests can force a passage through. Hence the prospect of an elected House of Lords, which will have an authority equal to that of the American Senate, horrifies him. His reforms of the Lords are intended only to remove powers, not to create or endorse them.
It seems to me, therefore, that while there is truth in the suggestion that Tony Blair and his clique would like to Americanise our constitution, it is also true that they have only the most superficial regard for what the founding fathers were trying to do, and no respect whatsoever for the underlying principles of constitutional reform. If we are to bring home the revolution, as Jonathan Freedland has argued, then let us begin by discussing it at least!