There are two great myths about the British constitution:
The first is that is unwritten. This, of course, is wrong. As every politically literate person ought to know, most of it is written – in the form of countless items of case law, statute law and international treaty. What we do lack is a document in which all these strands are tied together in a single, supreme constitutional statement. In other words, the British constitution is uncodified.
The second great myth about the British constitution is that it is inflexible. Nothing could be further from the truth. There are, of course, a few archaic laws and practices that linger on long after their natural lifespan, giving the impression of a constitution preserved in formaldehyde. However, these are peculiarities, not fundamentals – and it is the fundamentals, not the peculiarities, that are the problem. Or, rather, it’s the fact that the fundamentals of our constitution – especially our system of common law – can be, and have been, eviscerated without the informed consent of the British people.
In particular, the Human Rights Act 1998 has subjugated centuries of common law – and statute law – to what amounts to a foreign constitution: a series of simplistically-worded rights that allow an unelected judicial elite enormous leeway for interpretation, and therefore power, over matters that ought to be decided democratically here in our own country.
Now, before you get your hopes up, I must warn you that I’m not about to blame this mess on the European Union. After all, these arrangements were hardly forced upon us by outsiders. Each surrender was freely agreed to by British Parliaments elected by the British people. Needless to say, not one in a hundred voters understands the enormity and significance of the concessions that have been made, but whose fault is that? And whose fault is it that a Government elected with barely more than a third of the popular vote is now poised to ratify the repackaged EU constitution?
I’m afraid that it all stems from the inherent weaknesses of our own constitution. Its individual parts – both efficient and dignified – may be perfectly formed, but as a whole it lacks an immune system, leaving it defenceless to any foreign bodies the Government of the day may choose to expose it to. By taking our attachment to Parliamentary sovereignty to extremes and maintaining an essentially toothless House of Lords, the majority in the Commons is in position to do just about anything it likes – such as promising a referendum on a vital issue of national sovereignty and then breaking that promise on an utterly spurious pretext.
A codified constitution could stop the worst abuses, setting the ground rules for the way in which the Government of the day uses the power granted to it at each general election. The Government would of course be free to seek to change these rules, but could only do so by seeking a democratic mandate specific to the changes proposed.
However, there is dilemma here: codification risks the destruction of the very thing it is designed to protect. By boiling down our gradually evolved and painstakingly elaborated constitution to a few briefly worded paragraphs, we could open up our system to the judicial activism I described above. In this regard, the US constitution is provides an object lesson in unintended consequences. The founding fathers may have placed limits on the power of the executive that we could do with over here, but their constitution is subject to fundamental reinterpretations by the unelected Supreme Court. Thus we are presented with the irony of a legal system based on common law, but where judicial activism is nevertheless a massive factor.
Is there a way out of the codification dilemma? I think there may be.
It is surely possible to codify our constitution in such a way that we produce a single statement of how all the various parts of our existing constitution relate to one another, but without the new document taking precedence over the original building blocks. Thus we could avoid the sort of codified constitution whose briefly worded, but all important, clauses become the rune-stones of a shamanic judiciary, cast around and reinterpreted as the be-wigged ones see fit. In an alternatively codified constitution, the clauses would refer back to established common law and statute law, which would continue to provide the dominant content of the constitution. Such a system would be analogous to the hypertext on the home page of a website – individual words and phrases in a simple document linking back to more detailed documents elsewhere.
I’m no legal expert, and I expect there’s a proper technical term for this concept, which others must have described with greater competence than I can manage. Still, I find it useful to think in terms of ‘hypertext constitution’ whose ‘home page’ links to, and helps organise, all the documents that currently make up our existing constitution.
That said, the home page of a hypertext constitution wouldn’t just be made up of links – it would have some crucial content of its own:
It would define the hierarchy of all the source documents, making clear which took precedence should their provisions come into conflict. This is particularly important in relation to European Union law, because in the process of codifying our constitution we would as a nation have to make a conscious decision as to whether to submit ourselves to a supranational authority or to make an unambiguous declaration of our national sovereignty.
The home page would also set out the conditions under which the fundamentals of the constitution could be changed – for instance, by specifying the circumstances in which a referendum would be required. This would, of course, limit the supremacy and sovereignty of Parliament – and a good thing too.
Now that Gordon Brown has announced his intention to draw up a Bill of Rights, David Cameron ought to trump his dubious little scheme and announce the intention the next Conservative Government to codify the British constitution. We are fortunate to have within our ranks a number of needle-sharp legal minds (Dominic Grieve, Oliver Heald and Bill Cash, to name but three) who could be tasked with drafting such a document.
The last ten years have surely demonstrated the moral bankruptcy of what Lord Hailsham once called our “elective dictatorship”. It’s time we put an end to it. So let’s get started.
UNSOUND.
Posted by: DavisFan | October 31, 2007 at 12:07 PM
The EU Constitreaty should have been knocked out in under thirty Articles, few of them more than a paragraph in length.
Instead, it ended up as a mammoth bleeding heart Wishlist of the Inanities, and probably wouldn't fit into a steamer trunk once all the different-languaged versions are compiled.
So it's hard to see the Human Rights Industry and their paid help in the Judiciary letting a simple idea like this survive in any form shorter than Encyclopedia Britannica, nor are they likely to accept any document that specifically says that the judges are not lawmakers.
Besides, even Parliament's Turkeys know Christmas when they see it, so I think we can stamp this notion DOA.
Posted by: Teesbridge | October 31, 2007 at 01:14 PM
I understand what you're saying. The Japanese Constitution works a bit like that. For example, the constitution would say 'all adults are allowed to vote in democratic elections', but leave it to outside law to define just what an adult is, whether it's sixteen, eighteen, twenty-one or fifty-nine. That would cement the principle of democracy, without being doctrinaire.
It's an interesting idea, and one that I've actually had before. I'm not fiercely against it in principle, but I'd need a bit more convincing before I'm a signed up supporter.
Posted by: Ash Faulkner | October 31, 2007 at 01:58 PM
"The second great myth about the British constitution is that it is inflexible"
Just about everything I have ever read and been taught is the reverse of this, i.e. that the British Constitution is extremely flexible. Every law and regulation makes up our ever changing Constitution.
By not being "codified" into one single fast read document, or McConstitution, it has been able to adapt and adjust to change as needed, thereby creating a stable State that has avoided the civil war, unrest and extremes that have plagued our neighbours in Europe.
Those older parts that survive intact are not as you say "linger[ing] on long after their natural lifespan...preserved in formaldehyde" but surviving due to their strengths. Unlike say the US Constitution, which is codified and fairly inflexible with its out dated (and too often very deadly) perculiarities such as the right to bear arms.
Our strength has always been in our ability to adapt, don't throw that away.
Posted by: David T Breaker | October 31, 2007 at 02:40 PM
The fault lies with the First Past the Post voting system supported by the Conservatives and their Labour allies.
This led to a party with a minority of the votes once again having control.
Posted by: TimberWolf | October 31, 2007 at 04:10 PM
We often here Lib Dums and others talk about PR. We are told that a minority government would need to promise PR to get Lib Dum support. We have seen TB's government set up new parliaments in Cardiff & Edinburgh, whilst destroying the house of Lords.
Whatever the rights or wrongs of these issues, none should be in the power of the government of the day to change. It amounts to nothing more than changing the rules of the game as you go along. No something that befits the mother of parliaments.
All such issues need a mechanism for change, a set of rules that need more than just a parliamentary majority.
I believe we need a constitutional court, whose job is to decide when parliament oversteps its boundaries, and refers the relevant law to a "constitutional vote" which would require a super majority (2/3s, 3/4s ??) in order to pass.
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