Everyone has their breaking point. Mine came this week, as the Brexit saga plumbed new depths of absurdity. No, I haven’t changed my mind on the issue itself: to the extent that my thoughts achieve any coherence, I’m a lachrymose leaver (just across the line from the reluctant remainers).
Rather, my rethink concerns the British constitution – and why, I’ve finally come to the conclusion, we need a written one.
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Technically, that’s what we’ve got already – our various bits of constitutional law are written down in various documents. However, it isn’t codified – i.e. drawn together into a single overarching document.
I’ve never thought we were less of a democracy for not having one of those. After all, history is littered with constitutions bearing the boot-prints of dictators. Like it or not, de facto power can squash de jure legitimacy. On that basis, one could argue that an all-over-the-place body of constitutional law is less vulnerable to tyrannical subversion than an easily amendable – or suspendable – codified constitution.
However, the events of the Boris Johnson premiership have convinced me that the make-it-up-as-we-go-along approach isn’t sustainable. I offer no comment on whether the Government was right to prorogue Parliament at this particular time; to me the real problem is that there should be any confusion as to the legality of the move.
It ought to be crystal clear what the rules are. Yes, there will be occasions when unforeseen developments – like America’s infamous hanging chads – present themselves, requiring a novel interpretation of the rules. But on something as basic as when parliament is or isn’t in session there’s no excuse for not knowing exactly where we stand.
There’s also no excuse for blatantly stupid provisions like the Fixed Term Parliament Act (FTPA) – which allows a government with no majority to be trapped in office by an opposition too frit to agree to an election.
The FTPA is an example of the way our existing constitutional arrangements have struggled to cope with this strange new era of hung parliaments, coalition governments, national referendums, asymmetric devolution, supranational institutions, and the botched reform of the House of Lords.
In short, it’s a mess, it’s getting worse and it’s time to sort it out.
Unfortunately, it’s often in the process of correction that one makes a fatal mistake. So, let me acknowledge the number one risk involved in codifying the constitution – which is that the enterprise would be hijacked by those keenest on the idea.
Liberalism: the other God that failed
Advocates of a written constitution tend to be of a certain type – the we-know-best establishment liberal. Of course, liberalism is as legitimate a point of view as any other, but not one that should be privileged in a constitution to the extent of constraining democracy for decades to come. And, make no mistake, if the establishment take the lead on constitutional reform they will use it to entrench their power. To misquote George Orwell: “if you want to know what the future will be like, imagine Dominic Grieve and Harriet Harman stamping on the will of the people for ever.”
Now, you may be quite fond of Mr. Grieve and/or Ms. Harman. You may think the ‘will of the people’ a bogus concept. Fair enough. But, just like everyone else, you should have to fight for your beliefs at each and every election, not have them embedded in the body politic like an inoperable piece of shrapnel.
So if we’re to have a codified constitution for the whole country, we need some guiding principles. Here are five:
From the outset it needs to be made plain that this new constitution is not a founding charter for the People’s Republic of Islington. The purpose of codification must be to organise and clarify the fundamental features of our existing constitutional arrangements – those tested by time and for which there is widespread popular support. So national sovereignty, constitutional monarchy, parliamentary democracy and so on and so forth. I’ll come on to a glaring exception below, but the general principle is this: if it ain’t broke, don’t fix it.
That said, codification shouldn’t mean fossilisation. Democracy is fundamental, of course – but if at some future point the voters wanted to, say, abolish the monarchy, they should be free to do so. Therefore we need a procedure for changing the constitution. In our current system, all that is usually required is a parliamentary majority. A codified constitution could replicate that, but, if it did, one would have ask why we’d bothered with codification at all.
Look what happens when you ignore Parliament
Changing a constitution should require a higher hurdle – for instance a national referendum. Yes, the political establishment would hate that (which in itself recommends the idea). Referenda are also expensive, time-consuming and divisive. But that’s good too, because changing the constitution shouldn’t be cost free. In contrast to the Fixed Term Parliament Act, which was passed in a fit of absence of mind, the prospect of all future ‘reform’ must be sufficiently wince-inducing as to provoke forethought.
II: Rules not rights
If we want a ‘sticky constitution’ – i.e. one that can be changed, but not easily – then the fewer provisions it contains, the better. It’s therefore essential that codification doesn’t become overloaded with rights legislation – because you know what would happen: every single lobby group in the country would try to justify its existence by getting their trojan hobby horses into the final document.
Furthermore, this is how they’d make their demands – “if you don’t agree to X that we say is the only way of securing the rights of Y, then that shows you don’t care about Y – in fact, you’re probably Y-phobic, you bigot.”
Our illiberal empire of rights
So, let’s not get bogged down in that. Codification must concentrate on rules not rights – settling the key questions about who governs in which circumstances as opposed to predetermining the government programme.
Of course, I’m aware that the 1998 Human Rights Act incorporates the European Convention of Human Rights into UK law. I’m not suggesting that a post-Brexit codification should reverse that, but it shouldn’t take Britain any further away from its homegrown legal tradition – which includes a long and impressive record of defending liberty.
III: Via negativa
Via negativa means ‘the negative way’. It isn’t a legal term, but refers to the old theological method of describing God by making statements about what God is not. More recently, Nassim Taleb has used the term to describe a method of approaching life generally – for instance, seeking to improve health not through unproven treatments of dubious worth, but by cutting out potential harms.
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We need a constitutional via negativa. Instead of relying on complicated innovations that may have unintended consequences – like the Fixed Term Parliament Act – we should first seek to make improvements by removing what we don’t need. In fact, repealing the FTPA would be an excellent place to start.
Admittedly, in deciding to codify the constitution we would have violated this principle, but it can still guide us. Instead of codifying to achieve positive outcomes that have so far not been attained (which, by definition, requires innovation) we should seek to avoid negative outcomes – relying on established precedent.
This doesn’t mean that government shouldn’t take risks or pursue progressive aims, just that it shouldn’t do so through the constitution – whose purpose is to serve as an anchor not a motor.
In any case, progress is best made from the bottom-up – through lots of local experiments. That way the successes can be copied and adapted for use elsewhere, while the failures are contained and learned from. This is what Taleb calls ‘optionality’.
However, optionality requires diversity and diversity requires decentralisation. One of the great failures of the British constitution in the modern age is that it did so little to hold back the over-centralisation of power. We should be proud of our long-established liberties – but their key weakness is that they go back to a time before the modern state, and thus provide scant defence against the top-down control made possible by the bureaucratic age.
What's the point of central government?
Codification would be an opportunity to put that right. Since 1997, we’ve seen power devolved to Scotland, Wales, Northern Ireland and London. Since 2010 there’s also been devolution to English cities and regions (though not to England as a whole). However, this is power given away by Westminster at its discretion, which it can choke-off or even take back altogether.
In his Confessions interview with Giles Fraser, the political philosopher Larry Siedentop makes the case that, post-Brexit, the United Kingdom must have a federal constitution. This means one in which all the power does not reside in one place (Westminster). Instead, a significant part of it would belong, inalienably, elsewhere: with national governments in Edinburgh, Cardiff and Belfast – and with a new English national government (in York) too. Within each home nation, there’d be further ‘deep devolution’, to cities and counties, and ultimately down to each community.
Brexit is ultimately about sovereignty. The will of the people – and I’m confident this includes many more than 52% of them – is that the United Kingdom of should remain an independent country.
One day that could change. Generations hence, we may wish to join a European superstate, a one world government, a federation of planets. But for now, and for the foreseeable future, we wish to govern ourselves. This is the most basic constitutional principle of them all and the foundation of our democracy. It is what a codified, written constitution must begin and end with.
At a time when they are under threat, the essentials of national sovereignty should be spelled out – if not exhaustively, then at least in terms of the most obvious and tangible components. Control of our borders, our currency, our armed forces: let these be written down – the pillars of an acquis Britannique.
If any or all are to be given away, let it be by one means and one means only – a direct vote of the British people.