Continuing the discussion on a written constitution initiated by Richard Gordon’s Repairing British Politics, Francesca Klug considers the moral and human rights aspects of constitution-making.
To paraphrase Harold Wilson, a written constitution is a “moral crusade”, or it nothing. On its own, a constitution is architecture – a house, not a home. Think the Soviet constitution. Think the BNP’s support for a British Bill of Rights. It is the values that drive a constitution and give it its soul. Richard Gordon’s draft constitution, already reviewed by Andrew Blick and John Jackson on OurKingdom, is a tour de force. We hear a lot about what is wrong about politics, and a lot is wrong. But Gordon suggests how to repair it and I want here to comment on the “moral framework” that he has adopted.
Gordon writes that, whatever else, a written constitution should reflect the principles of a just society; and that the framers of the US Constitution knew what justice meant, as evidenced in the Declaration of Independence. Maybe, but they also enshrined the constitutional principle that black slave equalled two thirds of a white man.
What I understand him to be saying when he makes this point is that justice is the underlying value of his proposed constitution. Popular sovereignty is a necessary underpinning, but it is not sufficient.
The values of his blueprint are to be found in the preamble and in part 9 on fundamental rights and freedoms. The preamble emphasises that these islands are not a static organic entity, but a place of migration and change over many centuries – that we are a multicultural and multi-faith society and it is now necessary to adopt a new UK constitution that reflects this reality. We are a “people” composed of “peoples”.
In part 9, Gordon roots rights and freedoms firmly in the framework that has developed to address and embrace diversity and change in the modern world. He explicitly incorporates the European Convention on Human Rights, the European Charter of Rights and Freedoms and the Human Rights Act, as well as additional rights and responsibilities from the Universal Declaration and the UN treaties it has inspired.
Thus he signals an important disassociation from the contrasting moral claim that liberties have a nationality, called “British,” are rooted in this soil, and must be embraced by “outsiders” seeking to become “one of us”.
But Gordon does not signal so clearly his basis for the inclusion of certain social and economic rights, either in the preamble or in part 9 on fundamental rights and freedoms. Of course, as he says elsewhere, there are some moral dilemmas for which there can be more than one answer; and for some advocates of a written constitution, social and economic rights represent an unacceptable incursion into individuals’ liberty. However, if the purpose of a written constitution is to be the creation of a just society, then the philosophical underpinning of these rights in that constitution needs, in my view, to be explicit, not implicit. As Tony Judt wrote last week in a Guardian essay, if the purpose of such rights is to reduce inequality, then this goal needs to be stated as an explicit value.
The greatest challenge in any constitution or Bill of Rights is to reconcile the two principles that Gordon champions – the protection of minority interests and popular sovereignty. The preamble and part 9 signal firmly that popular sovereignty should not trump minority interests. This constitution, in other words, is not an exercise in reconciling the principles that drive fundamental rights and freedoms with a tabloid agenda that both the major parties have at various times championed. Richard’s blueprint may be light years away. But in the meantime, “British” Bills of Rights and Responsibilities are likely to be paraded like models on a catwalk in the forthcoming election. The moral framework that Gordon proposes, with rights and freedoms rooted in universal principles designed to reflect our diverse and developing society, give us important benchmarks by which to judge these alternative models.
Francesca Klug is a Professorial Research Fellow at the LSE and Director of the Human Rights Futures Project. She has written widely on human rights, including ‘Values for a Godless Age: the story of the UK Bill of Rights’ (Penguin, 2000). She is currently writing a sequel to this book, to be published by Routledge.