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The unspoken constitution

About the authors
Stuart Weir is founder of Democratic Audit at the Human Rights Centre, University of Essex, and co-founder of Charter 88.
Dr Stuart Wilks-Heeg is Executive Director of Democratic Audit.
The Unspoken Constitution

Today, to mark the return of MPs and Peers to Parliament, Democratic Audit have published a satirical pamphlet that sets out to describe how our unspoken constitution would look if actually put to paper. Below, Stuart Weir presents the Preamble, and Stuart Wilks-Heeg explains both the historical and the contemporary context of the project: 

Earlier this year Graham Allen MP made some very good jokes in a speech, suggesting how an honest constitution would describe the way we are governed. He inspired me to a brainwave: why not write an ‘Unspoken Constitution', as if from our political masters, as a satire on our inefficient and undemocratic governing traditions and rules?

Fortunately I was able to draw on the knowledge and ideas of friends at Democratic Audit - openDemocracy's Anthony Barnett among them - to hone down the weaknesses and contradictions of our constitutional arrangements to their paradoxical bones. As I wrote, I became more and more astonished at the arrogant complacency and ignorance not only of our rulers but of the whole political class - and yes, I do mean civil servants, the media, most academics as well as leading politicians- over what is in essence a rotten caricature of democracy.

The paradoxical bones? I think Article 3 of the spoof constitution best illustrates what I mean:

Government, like every subject, shall be free to do whatever is not unlawful. The government shall decide what is unlawful.

You can read the whole document, The Unspoken Constitution, here at OurKingdom, or view our site at Democratic Audit, but here as a taster, is the Preamble...

WE, THE ELITE, do not believe in the kind of constitution most other advanced nations have - those that boast a belief in popular sovereignty; with resounding declarations such as ‘we, the people', and that tend to contain rules about how governments should act.

We describe ours as the ‘unwritten constitution'. It is a collection of laws, fictions, powers left over from the old monarchy and powers that we make up as we go along. We disguise the fact that it is neither popular, representative nor accountable through a set of myths about the ‘Mother of Parliaments', Magna Carta and the rule of law.

We hide our power behind a grand title, the Sovereignty of Parliament. It has a democratic ring to it, but legally this sovereignty is vested in the Crown in Parliament, or in plainer language, in the hands of the Prime Minister and government within Parliament. This enables us to combine executive and legislative power. Parliament by and large passes all the laws that we tell it to, or better still, we can employ devices, known as statutory instruments, to make the law so that we do not have to bother with Parliament that much.

Parliament, far from being representative of the people, is actually our bulwark against the people. We are also able to treat the people not as citizens but as subjects. We encourage people to believe that they are free, though actually they are in chains, unfelt but real nevertheless,

One most helpful myth is widely believed - that the great virtue of the obsolete electoral system that we use for elections to Parliament is that it enables the people to ‘chuck the rascals out.' Actually it is the secret of our grasp on power. Elections are unavoidable, but we can reduce their unpredictability in a variety of ways. First-past-the-post elections limit the number of parties that have a chance of winning power, and most MPs - four out of every five - can count on being returned at a general election (if not after an expenses scandal). Moreover, once in power governments can usually expect to be returned over a series of elections. The electoral system for the House of Lords is even more efficient - we do not have one. We are quietly perfecting the principle of non-election by creating bodies known as quangos at all levels of government, national, regional and local, and run by people whom we appoint and trust. A great number have usurped the roles of elected local councils allowing us to subdue local councils and more or less abolish local democracy.

We justify our ability to create new powers and ways of governing, or to change how we run the country to suit the Prime Minister or his or her cabinet, by extolling the flexible nature of the unwritten constitution. The great advantage of this flexibility is that once we have hit on a new way of behaving, it becomes part of the constitution. And we can modernise easily. So we have moved on from old-fashioned cabinet government to sofa government by the prime minister with trusted allies and special advisers. Presidential, yes, but faster and more efficient.

This excellent state of affairs allows us to exercise executive power more or less as we please while the whole world admires us as a democracy. In fact, our unwritten constitution is what governments do - as opposed to all those foreign constitutions that tell governments what to do.

These are the Unspoken Articles of what the Minister of Justice calls our executive democracy.

Stuart Wilks-Heeg explains the historical and contemporary context:

Stuart Weir has given you all a taste of the 'written constitution' that Democratic Audit is publishing today as our Parliamentarians return after the summer recess.  In contrast to the handful of previous attempts to undertake this onerous task, ours is a spoof. Working as one of Stuart's collaborators, we aimed to describe the constitution as it currently works in practice, rather than offer a framework for a democratic polity rooted in a conception of popular sovereignty.  We set out to describe the constitutional order which the political elite would never wish to be discussed in public, let alone set down on paper; hence the title of our text - The Unspoken Constitution.  

While we conceived this project shortly before the expenses crisis began to break, the sense of popular outrage about MPs' expenses has spurred us on at Democratic Audit, as we worked with our partners, OurKingdom and Unlock Democracy, to map out the subtle, and not-so-subtle ways, in which our political elite cling to power. Like other reform advocates, we feel it is crucial to make the link between the catastrophic loss of public faith in our political institutions and the wider democratic flaws in the UK's constitutional order.

Our satirical offering is, of course, another way of making the case for a written constitution, though we recognise that even this remarkable moment in British political history in unlikely to see us reformers achieve our aims. As is well known, written constitutions tend to emerge at radical moments in a state's history - following a revolution or military defeat, after securing independence from a colonial power, or new states being formed by the break-up of an existing one. The United Kingdom, so the argument goes, has lacked such a decisive political moment. Even in the face of civil wars and civil disobedience, democracy in the UK has evolved imperfectly over a period of centuries rather than been ‘installed' following a particularly revolutionary moment.

While the historical impact of popular unrest and popular protest on British democracy is often seriously under-estimated, there is little doubt that the UK has exhibited fewer ‘system-changing' moments than most of its European counterparts. As a result, the pace of democratic change has often breathtakingly slow. And while there are some indicators of (frustratingly gradual) progress over time, taking the long view actually highlights how aspects of the British constitutional order also appear to regress, sometimes quite seriously. Take Dicey's (1885) interpretation of the British constitution, centred on the doctrine of parliamentary sovereignty. This may have marked Britain out as a democracy in the late nineteenth century, but today the concept is not simply archaic, it entirely misrepresents how our political system works in practice. Over the past century, and certainly since the early 1980s, the significance of Parliament has declined significantly in the face of executive dominance. As Anthony Sampson put it in his (1992) book, The Essential Anatomy of Britain: Democracy in Crisis, ‘the British in the last decade have seen concentrations of power which the Victorians never dreamed of'.

Since 1997 much has changed as a result of devolution, Lords reform, the Human Rights Act, the Freedom of Information Act and other measures. The question, though, is what have these changes done to shift where power lies, to render elected politicians more accountable to the public, or to ensure that the rights of British citizens are protected in practice? When we pose this question, it quickly becomes apparent that there has been a parallel set of hidden constitutional changes since 1997, which have served to further strengthen the power of the executive and dramatically erode civil liberties. It is this ‘other story' of constitutional change (and the absence of change in areas such as abolishing Royal Prerogative powers, replacing the Lords with an elected second chamber, or reforming the electoral system) which The Unspoken Constitution seeks to reveal.

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