A stronger constitution?

Photo by Taylor Herring from creative xommons

When applied to Great Britain the word constitution must be used in the most delicate sense. The document itself does not exist, but the contents of such a document are referred to with such regularity and such force that even the most cynical could become convinced of its reality.

The problem here is that something obviously must exist, for our country seemingly does not resemble a ‘banana republic’ with its aversion to constitutional democracy; and most people are aware of the Magna Carta and the Bill of Rights, so that the logical conclusion is that the British constitution is something like an ageing family member: happy and well, but not feeling quite required to visit – no need for us to check in. But the benign nature of our country’s institutions means we allow ourselves to become convinced of the existence of something we have never verified. Our family member never existed. Only the distant memory of maybe having met this person and the continual reassurance from our elders that she is there, like some Miss Havisham, dictating our lives and ensuring our expectations.

But as with Miss Havisham our constitution is not our anonymous benefactor but the capricious relic of an era distant from our own. A set of statutes, written Acts of Parliament which regulate the system of government and exercise of public power, provide the skeletal structure. The most important of these was established after our ‘Glorious Revolution’ of 1688, which established what was to become the United Kingdom’s sovereign formula, and is still the principal document of our national character.

So archaic and encrusted with layers of ‘tradition’ and ‘British values’ is our political system that the essential arguments are still to be found in Paine’s Rights of Man (1791), and Walter Bagehot’s The English Constitution (1867), itself the founding document for our ‘constitutional monarchy’ – and still the key text for an analysis of that thing-that-is-not-a-thing.

In his Rights of Man, Paine refutes both the idea of a hereditary head of state (absurd, like a hereditary mathematician) and the notion put to him that the Parliament of 1688 had established a Bill of rights binding over “their heirs and posterities, for ever.” It says much about the nature of our political institutions that this same argument is put to us today, and can still be denied with a quote from Paine:

“The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that have any right in it. That which may be thought right and convenient in one age, may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living, or the dead?”

And this is precisely the question we must ask today. Who, the living, or the dead? The circumstances are indeed continually changing: the steady pace of history seems to be quickening; years of political change occur within weeks, each day further preserving the British institutions under a gathering layer of sediment.

Of course, you may say – you are probably thinking it already – “Yes, but what’s the problem? The system, like all things, is flawed but it seems to work perfectly well, and is so well established that to change anything now would be pointless. And the Queen maintains stability.”

This is almost exactly the sentiment professed by Bagehot in his defence of the ‘dignified’ institution rather than the ‘efficient’:

“As long as the human heart is strong and the human reason weak, royalty will be strong because it appeals to diffuse feeling, and republics weak because they appeal to understanding.”

Who cares if we do not understand the very system that governs us? It makes us proud and patriotic, and the envy of the world – nations admire our system. We are often told that Britain is the ‘cradle of democracy’ and countless current democracies owe their very existence to the British constitution; yet, if we ask to see it we are referred back to its mystical nature, its magical influence. What is this? This wilful ignorance in defence of tradition, the appeal to the most primitive elements of our species; much like Lady Bracknell’s recommendation of the beauty of ignorance – “Like a delicate exotic fruit; touch it and the bloom is gone.” It is the symptom of a decaying nation, of a society unwilling to look its history in the eye.

The line of reasoning that takes one from the defensible notion that the British system of government was influential in the establishment of other democracies to the conclusion that our constitution is above reform is fundamentally false. For one thing, influence and emulation are not the same thing: astronomy was influenced by astrology, chemistry by alchemy, and philosophy by religion, yet to say that the former is still beyond revision, or even superior to the latter, is absurd. Second, the constitutional document does not exist. There is no need to reform our constitution, but rather to create it.

The British constitution is largely made up of common law and precedent – a work as we go approach (is it any wonder much of the nation seems to desire for some ancient identity, what do we stand for?) But the key aspect of its nature is the element Bagehot admired as the core of its effectiveness: the marriage of the legislative and executive function. To Bagehot this was the priceless diamond within our system, which could only be created under the intense conditions of English history. Not encumbered by term limits or a dislocated executive as in the United States, our elected government is free to create and enact without deference to any external body, and, crucially, any cabinet can be abolished in times of crisis – e.g. May for Johnson in recent history, but Bagehot was referring to those occasions when a dictator might be better suited.

The limits of constitutional plasticity were shown during the rule of Thatcher, when a substantial commons majority allowed for an authoritarian control of the executive and the subsequent erosion of a number of important civil freedoms; and an insignificant opposition meant no hope. For the events of 1688 only shifted the absolute power of the monarch into the hands of the parliamentary oligarchy. And an electoral process meant domination of the lower house can be decided by fewer than 40 per cent of the population; a parliament in which a majority of the upper house is still determined by inheritance.

Are we to be told that these are irrelevant issues? Let us appraise the situation. A substantial commons majority, this time imposing upon the country a revolutionary force of stupidity and baseness; the ability of a crony government to profit from a national crisis; the treatment of Scotland as vestigial baggage on the flight to our Brexit Utopia; and, of course, the politically apolitical Godhead. And our voting system which allows a 1.2 per cent increase in the vote share to lead to a corresponding increase of 47 seats. Oh, and Baron Botham. Ours is a country currently divided ideologically; the schisms grounded in grief for the loss of, and a dislocated nostalgia for, the glory of Empire and a strong church and glorious monarchy with which to unite it all and those who embrace the new world of internationalism and plurality.

Thus it is time again to reignite the revolutionary flame and call for the drafting of our constitution, and for the Labour Party to recapture the radical principles upon which it was formed. We must be united in one opinion only, that British society stands in need of a constitution which protects individual rights and of the institutions of a modern and pluralist democracy. No country can be considered free in which the government is above the law. No democracy can be considered safe whose freedoms are not encoded in a basic constitution. Such ends can be far better demanded, and more effectively obtained and guarded, once they belong to everyone by inalienable right.

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