Our Phantom Constitution

Last week’s heated debate over Lords reform brought unwelcome attention to the curious void at the heart of British democracy: our lack of a written, codified constitution.

Fabians have agonised over the structure of the British constitutional settlement since the Society’s inception, and founders Beatrice and Sidney Webb tackled the challenge head-on in ‘A Constitution for the Socialist Commonwealth of Great Britain.’ The Webbs’ defined the challenge facing progressives in the following terms:

“The problem to be solved is how to remould the social institutions that have come into existence in such a way as to evoke, in all men and women, and not merely a favoured few, all their latent powers, to stimulate the whole population…to the utmost possible exercise of their faculties.”

Few would argue that our current constitutional arrangement empowers every member of the citizenry in this way. However, would a formalised, written constitution really help balance out the current democratic deficit?

Britain has frequently flirted with the idea of a written constitution, but never advanced the relationship to one of solid commitment. At present, British democracy rests on a phantom constitution, comprising a hodgepodge of statutes, Acts, conventions and scraps of common law. It is a confusing, nebulous, and- most importantly- pliable doctrine that allows the government of the day a great deal of flexibility in defining the limits of what is and what is not ‘constitutional.’

The cornerstone of the current settlement is the principle of parliamentary sovereignty, which confers on Westminster supreme power to create and amend the laws of the land. What is interesting about this is that from a legal perspective, anything parliament decrees is law, and cannot be overruled. The devolved administrations in Scotland and Wales do exercise power, but their legal right to do so could be revoked by the Westminster Parliament at any time. No wonder the SNP are clamouring for a referendum. The same is true of Britain’s relationship with the European Union. The British government is obliged to conform to EU legislation as a condition of its membership- but it has not ‘constitutionally’ sacrificed any sovereignty to those across the channel.

A written constitution on the American model, meanwhile, formally sets out the legal powers of each level of government. The codified constitution serves both to enshrine the rights of the people and limit the powers of government in resolute terms. Yet written constitutions do little in practice to bring clarity to what these rights and limits entail. Take the classic example of the second amendment to the US constitution which supposedly guarantees the rights of all citizens “to bear arms.” Some say the wording unequivocally states that gun ownership is a constitutional right. Others say that it is qualified by arguing that the framers meant that weapon ownership was required only to defend the nation from external invaders.

However the problems with a written constitution go deeper than this, and should make all British cheerleaders wary of what they support.

All constitutions are the brainchildren of established political elites, and arguably serve to entrench the rights and powers of these elites over the rest of the population. Imagine how the process would play out in Britain: a cross-party commission of MPs and Lords would be established, take soundings from the most senior wonks in the think-tank world, debate principles with constitutional experts and foreign advisers, and engage in superficial ‘evidence-gathering’ exercises with the general public. After several years, the polished manuscript, approved by the government of the day and backed by the opposition, enshrining in perpetuity those principles that do not threaten the political status quo anyway, will be sold to the people and voted on via referendum. It is doubtful whether any constitution conceived in this way could really disperse power vertically down through British society, giving the man in the street a greater legal say in the running of the Kingdom.

An even greater problem is that any written constitution would have to be predicated by the abolition of the monarchy. It would be incongruent with the principles on which a democratic constitution is written to have it begin with the affirmation of an unelected head of state’s powers and prerogatives. Until Britain is ready to become a republic in both practice and principle, a written constitution is an impossible prospect.

However, the greatest problem with a written constitution is essentially an ideological one. An interesting argument made on Conservapedia suggests that constitutions implicitly endorse the idea of a transcendent moral order, a body of rigid universal laws that are both unchangeable and inalienable. Modern society, however, is sensitive to the fact that moral ‘laws’ are relativistic, and cannot be ordained for all peoples for all times. A written constitutions’ inflexibility harms the ability of progressives to genuinely reform society.

Look at South Africa- until 1994 its constitution legally debarred black citizens from engaging in the political process on an equal basis with white citizens. Even today, the written constitutions of Sweden and Denmark guarantee the positions of unelected heads of state. The latter one has been rewritten five times over the last two centuries in order to keep up with the times. Those who believe a written constitution is a magic wand that casts the spell of greater democracy over its host country are sorely mistaken.

In fact, as long as our constitution is unwritten, as long as sovereignty is invested in Parliament alone, the people have a better means of shaping the law of the land- through campaigning, lobbies, petitions, and other mechanisms. Vernon Bognador, Britain’s foremost constitutional expert, suggests one way to unlock the floodgates holding back the democratic impulses of the people would be to allow members of the public to launch initiatives, like they do in the US, allowing people to trigger referendums on issues important to their area.

Our world is evolving at a rapid pace. Ten years from now, there may be no such thing as a United Kingdom. One hundred years from now, a third of the British Isles may be underwater, and half our citizenry may be over the age of 100. How could a constitution drafted in 2012 enable the lawmakers of the future the flexibility required to legislate for the problems they face? Could a written constitution even tie Britain to an unjust, unfair body of laws that prevents society changing for the better? As long as such questions remain unanswered, the possibility of a written constitution remains remote.

Better a phantom constitution than a monstrous one.

Louie Woodall is Assistant Editor of the Young Fabians Blog