Do we need a constitution?

‘That the influence of the Crown has increased, is increasing, and ought to be diminished.’

Motion by John Dunning, passed by the House of Commons, 6 April 1780.

A constitution is a device for limiting the power of the executive. That ought to answer the question whether Britain needs one. For most of the 20th century, indeed ever since the Parliament Act of 1911 curtailed the power of the House of Lords, constitutional tinkering has been the province of eccentrics. Republicans, regionalists, advocates of electoral reform all counted as faddists, to be encountered at Liberal Assemblies or at Tony Benn’s annual commemoration of the Levellers.

That is no longer so. The Seventies saw a revival of the movement for Scottish self-government. There can be no Scottish devolution without an element of a written constitution, bringing with it the power of the courts – or of a specially constituted court – to interpret the terms of whatever Scotland Act is in force. It is highly probable that after the next election there will be a new ‘Scottish crisis’ – either because the Tories, if they win, will refuse to budge on the self-government issue, or because a non-Conservative majority, of whatever stripe, is likely to be divided on how far to stop short of the total independence that the SNP demands. For that reason alone an element of constitutional codification is likely in the next decade.

Quite apart from the Scottish question, we are getting a written constitution through the back door of Brussels. To put it another way: when Britain acceded to the European Community, the principal component of our unwritten constitution, the sovereignty of parliament, was irretrievably weakened. From 1973 onwards, directives made in Brussels became legally binding in the UK; judgments of the European Court in Luxemburg on Community law applied in Britain; and British law incompatible with Community law could be set aside – a process increasingly adopted by British judges sitting in British courts. If European political union on a federal basis ever takes place, Britain will have a written constitution whether it likes it or not. But those who object to a federal Europe on the grounds that it undermines the sovereignty of the Westminster Parliament are manning a last ditch that was overrun 18 years ago and over which they themselves hoisted the while flag when they signed the Single European Act in 1986.

These, however, are not the only reasons why the bandwagon of constitutional reform has been gathering pace. There is a more widespread feeling than for many decades that civil liberties are under threat, that our existing institutions are inadequate for protecting them and that our public political ceremonial bears less and less resemblance to the realities of the exercise of power: that, to adopt the phraseology of Walter Bagehot, the divergence between the dignified parts and the efficient secret is unprecedently wide. Perhaps in this, as in so many other respects, greater familiarity with what goes on in other countries has undermined the assumption that British is best. The undignified interrogation of Clarence Thomas may not have done much to enhance his personal standing or that of the institution that he now serves. But it helped to remind us that there is such a place as the United States Supreme Court, and that it seems to matter desperately to a great many people who its nine justices should be. The judgments of the European Court of Human Rights at Strasbourg, to which Britain has had to bow more often than any of the other participating states, may perhaps have had a similar effect.

Whatever the proximate cause, a bandwagon there is: it was set going three years ago by Charter 88, with its set of simple demands: a Bill of Rights, freedom of information, legal constraints on executive power, electoral reform, a reformed Upper House, a reformed judiciary, strengthened local government, and a written constitution enshrining all of these. It was followed two years later by the Liberal Democrats’ ‘We the People ...’, proposing English, as well as Scottish and Welsh, devolution and the incorporation into British law of the European Convention on Human Rights. This year we have had the constitutional proposal of the Institute for Public Policy Research, the ‘incremental agenda’ of the free market Institute for Economic Affairs and, most recently, A People’s Charter, published by Liberty, successor to the National Council for Civil Liberties.

The main impulse for reform comes from the left of centre. Charter 88 probably has more Liberal Democrat than Labour supporters; at any rate, it seems to have few Tories. The IPPR is predominantly Labour, but without formal party ties. The IEA belongs to the libertarian Right, which means it has more in common with some of the individualist radicals of the Left than either would like to acknowledge.

What is new is not the devotion of some of the Left to constitutional reform but the growing intensity of this devotion. For much of its history Labour has not been greatly interested in it. Even before the First World War Ramsay MacDonald dissented from almost all his socialist contemporaries on the Continent in rejecting proportional representation as leading to ‘academic and dogmatic politics’ and as a hindrance to ‘an expression of the public will’. Harold Laski’s Parliamentary Government in England, published in 1938, pleaded for ‘a government that can govern’ and ‘a stable executive with sufficient authority to drive an important and substantial programme through the House of Commons in the lifetime of a Parliament of five years’. If one did not know who wrote these passages, one would be hard put to attribute them to two of the leading socialist thinkers of 20th-century Britain. Both were quite content to see the Labour Party absorbed into the Whig constitution; and what was good enough for MacDonald and Laski was also good enough for Attlee, Gaitskell and Wilson.

A few elderly Labour Whigs are still around. Criticising the IPPR’s proposals.’ Professor John Griffith denounced judicial review as ‘subversive of democracy’: it ‘transfers the determination of where the public interest lies’ to an ‘appointed unaccountable cabal of senior lawyers, and overturns the principle of parliamentary sovereignty’. It does indeed. Considering that parliamentary sovereignty has in recent times given us the poll tax, the virtual abolition of local government and a strengthened Official Secrets Act, and has turned most public utilities into ill-regulated private monopolies, one wonders what is so admirable about the status quo. One might add – lest I be thought partisan in these matters – the Prevention of Terrorism Act, the Kenya Asians Bill of 1968 or the carte blanche to the closed shop in the 1975-6 trade union legislation, all passed by sovereign Parliaments with Labour majorities. The IPPR proposal makes no bones about its main purpose. It wants to take power away from Parliament and give it to judges.

One can think of two sets of reasons why the Centre-Left is moving towards positions such as these. One is that this is a reaction to 11 years of Mrs Thatcher. Under her premiership power was used more ruthlessly, centralisation accelerated more than ever and her electoral domination seemed unbreakable. The thrust towards moderation that most observers had thought inherent in the Whig constitution was first deflected, then reversed. The guardians of this moderation, the old upper and upper-middle class, the Oxbridge-educated professional and administrative élite, already in decline before 1979, were pushed into the margins. When you cannot win the game, you try to change the rules. On that logic, a changed game should diminish the demand for changed rules: i.e. the arrival of the milder John Major should dampen the desire for constitutional reform and a non-Conservative majority next year should kill it off. Do we not remember that Lord Hailsham, who had warned us against ‘elective dictatorship’ in the dark days of Jim Callaghan, forgot all about this danger in the ten years when he was Lord Chancellor?

The Constitutional Convention, held at the beginning of November under the aegis of Charter 88, suggests that this logic does not apply. What is not yet clear is what exactly needs doing and how best to achieve it. The sovereignty of Parliament today means, to all intents and purposes, not only the sovereignty of the majority party, but the sovereignty of the dominant caucus of the majority party and on some crucial occasions of a narrow majority of the dominant caucus. No winning party has been elected by more than 44 percent of the total vote since 1970. What the system needs, if it is to offer not merely credibility but justice, is countervailing institutions.

Both the IPPR and Charter 88 argue that the defects have gone so far that nothing but a comprehensive constitutional settlement will do. On intellectual grounds their argument is strong. My misgivings rest on the fear that this turns it into a Greek Kalends scenario. Let me therefore suggest a minimum programme that would remedy the grossest abuses but also has a reasonable prospect of being enacted in our lifetimes. This consists of 1. a Freedom of Information Act, 2. revitalised local government, 3. electoral reform, 4, a Bill of Rights.

The first of these, on the lines currently in force in the USA or Australia, requires a simple Parliamentary majority. All a written constitution can do is to require that we have such an Act: its detailed contents will in any case depend on the House of Commons (and therefore the government) of the day. The same applies to the revival of local government. The IPPR proposes elected English regions alongside Scottish and Welsh parliaments, to take some of the powers of the existing counties as well as of central government. The Liberal Democrats have long been enamoured of a similar scheme. But does anybody outside Scotland or Greater London want such a tier of government? Do you know anybody who thinks he will be better governed because some of his laws are made in Mercia or Wessex? Will ‘East Midlands the Brave’ sound from ten thousand throats? The IPPR draft does secure a tax base for regional and local government, but since the exact share of public revenue between central and local authorities cannot be laid down in perpetuity, the constitutional guarantee of fiscal independence is not worth a great deal.

Electoral reform is vital to revived faith in our political institutions. It is sometimes argued that while proportional representation is fairer than first-past-the-post it would not mean better government. I can think of at least one way in which it would be better and would be seen to be better. It would prevent minorities from behaving like majorities. Most of the political damage of the past decade has been done by those with no mandate to do it. Mrs Thatcher was re-elected by 42.4 and 42.2 per cent respectively. Ted Knight’s Lambeth council rested on 33.5 per cent of the vote, the Brent Labour council of 1982 on 36 per cent and Liverpool Labour under Derek Hatton never got more than 46 per cent.

Junior coalition partners who exploit their pivotal power can be punished by the voters. Parties have obtained, and can in future obtain, absolute majorities even under proportional representation. But their majorities will then be legitimate and credible. The IPPR not only anchors proportional representation in the constitution, but lays down the method of election – the ‘additional member’ system which corrects any bias produced by single-member constituencies from a further reservoir of candidates. While I would, if invited, be happy to argue at great length the superior merits of the single transferable vote, what worries me more is the inflexibility of the IPPR proposal. The post-war German Basic Law was careful to exclude the system of election from its provision and so is almost every other major constitution.

For all its many merits, the IPPR proposal offends against Jefferson’s law: constitutions, he said, should be brief and vague. All constitutions betray the ephemeral concerns and fashions of the years from which they date, which means that parts of them become irrelevant and parts of them become an obstacle to reform. The mortuaries of America are silent witnesses to the wisdom of the Second Amendment to the Constitution, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The German Basic Law – understandably in the after-math of Nazism – placed marriage and the family under special protection and stressed the sanctity and physical inviolability of life. This has caused problems for a divorce law, for the rights of the illegitimate and for access to abortion.

What does freedom from discrimination on grounds of age, proposed by the IPPR, mean? That a five-year-old can drive a car? Or that compulsory retirement ages will be illegal? And does safety at work need to be anchored in a constitution? The IPPR proposal is the most scholarly and most comprehensively argued of all those before us, but it does try to do too much. It also sets a bad example to the peasants by its grammar: ‘no one’, ‘every’ and ‘everyone’ are not plurals. And it misquotes Dunning’s motion, for the correct version of which see the head of this article.

Which brings us to a Bill of Rights. Most of its advocates argue for the incorporation into UK law of the European Convention on Human Rights. That Convention is by now well-known to lawyers and judges and to a growing number of citizens; it is common to all European states. IPPR prefer an amalgam of it and the International Convention, which would certainly cover more rights. What is important is not the detailed content of such a Bill but the question of who should adjudicate it. IPPR accepts it must be judges, but anticipates the objections to that by reforming the ways in which judges are appointed. Nevertheless, the fact that judges, however nominated, are not answerable to the public when they pronounce on political questions, raises inescapable problems. For that reason the ingenious proposal in Liberty’s A People’s Charter is attractive: a check and balance to the courts in the form of a Human Rights Scrutiny Committee of the House of Commons and a time-limit on all exceptional legislation.

Bills of Rights have to enunciate general principles, and we all know the pitfalls of that. My freedom of information may contravene your right to privacy. My free speech may contravene your right to be protected from discrimination. My right to life may contravene your claim to an abortion. Almost every right conflicts with another. But unless we think human beings are capable of resolving these dilemmas we might as well give up.

I also know that even the most carefully drafted constitutions and bills do not guarantee complete protection. The United States Supreme Court was of little help to the Japanese-Americans interned after Pearl Harbour or to the victims of McCarthyism. Its most recent judgment on the death penalty makes it applicable even to minors and the mentally defective. The West German Constitutional Court was feeble when faced with the ‘Radicals’ Decree’ which barred the politically suspect from a wide range of public appointments. But the citizens of every country which has effective judicial review would agree that they are better-off with it than without it. And even the dispute as to whether judges or parliament should have the last word is frequently beside the point. The main offender against civil liberties in recent times in Britain has been the executive, not the legislature, as the Spycatcher prosecution, the GCHQ ban on unions and the general leaning on the media have shown. A Bill of Rights, borrowing from existing, well-tried documents, would be the single biggest improvement in the quality of our political life. Together with electoral reform and a Freedom of Information Bill, it would restore to our constitution what it has for too long lacked: effective checks and balances. This package could be enacted quickly if the will were there. Once we had it, we should marvel that we had for so long been prepared to do without it.