The Constitution

A political issue which never comes up on the doorsteps and would be met with blank incomprehension if it were, is the British Constitution. An article by Will Self in The Guardian got 641 replies, but a recent petition only received 165 signatures in 6 months. It is a crucial question, overdue by centuries, and has just been thrown into sharp focus by the Supreme Court deciding unanimously that an attempt to block Parliament from sitting is a matter of law and is unlawful. This is the most fundamental constitutional matter since 1689. Consider some other Constitutional matters in recent times: the whole issue of Britain leaving the European Union, a supremely constitutional question, decided by an invalid plebiscite;  the Royal prerogative, Prince Charles’s letters, the ‘Henry VIIIth ‘ procedure, the powers of devolved nations, fixed or variable term parliaments, hung parliaments, parliamentary privilege claimed in the expenses scandal…

In law, Parliament cannot be altered by prerogative powers of the Crown or government, since 1611, but in reality has been. It is only too easy for the ‘Establishment’, masquerading under the banner of liberty and freedom from regulation, to operate an dictatorship through powers like these. The Queen , for example, ‘has no real power’ – but the government has absolute power when operating as ‘The Queen in Council’, much as Charles I used to. The notion that suddenly in 1688 we had a ‘Glorious Revolution’, which made absolute power impossible in England compared to the great European monarchies , is an historical illusion. Prerogative powers still exist.

No other democratic country has no written Constitution at all. Not long ago a senior civil servant slipped his leash and disclosed the Constitution as ‘something we make up as we go along’, which was perversely lauded as being in the British spirit of ‘muddling through’. Others have pointed to the value of ‘good chaps’ making ‘sensible’ decisions and knowing the limits of impropriety. This is aristocratic nonsense that should have gone out with the 19th century. How do you prevent those who are not ‘good chaps’ seizing power undemocratically? In the recent case of the attempted prorogation, Lady Hale (ibid) noted that the longer Parliament was prorogued, the greater the risk it would be replaced by ‘unaccountable government’,  that is, dictatorship. Tory governments in the UK have used the absence of a constitution for all manner of skulduggery . Bullington bullies, huffing and puffing like Churchill, spin any old yarn to attempt to legitimise their actions.

We had a constitution but as it has not been codified, it is capable of further development. But all democratic countries have written constitutions, which are adapted from time to time. It is just that the process is formal and does not require recourse to a court on every occasion. Lady Hale

Only a government like the next Labour government would be competent to deal with the matter of a Constitution. We can no longer rely on answers to some of these questions coming from experts at reading the obscure centuries-old reflections of Bagehot. The Labour Government should as a matter of urgency appoint a Royal Commission with the task of designing a written Constitution for the United Kingdom.

Constitutional matters, as in every real country, should stand above the politics of the day and take priority when they occur. The final arbiter of a Constitutional question should be a Constitutional Court, as has just and properly happened, where the highest court in the land, the Supreme Court, using all its Judges, would be able to perform this task in the future.

The Constitution should be mainly free of high-minded aspirations like that of the USA Constitution, which turn out to be largely hypocritical, but instead concentrate on definition, delineation, principles and rules of operation.

What should be considered within The Constitution of the United Kingdom? Each of the following and possibly others should be considered as Constitutional. They are all fundamental aspects of our governance with long-lasting consequences. They would be subject to changing, but only by a minimum number present for the decision, of both Houses of Parliament, and the margin of acceptance should be decisive, for example a two thirds majority.

The Constitution of the United Kingdom

1. The name, extent and description of the State, including component nations, its anomalies  (Isle of Man, Channel Isles) and its remaining dependencies.
2. The operation of the Constitution itself and definition of what are Constitutional matters; that the Constitution cannot be used to revoke itself .
3. The assertion of representative democracy as the  principle of the UK as a democratic state.
4. That Human Rights -the UN Declaration – is indisputably a UK Constitutional matter.
5. A statement to create and define Citizens as participants in democracy, rather than subjects ,and their powers and duties.
6. The responsibility of the State towards future generations, the human species, other species  and their home, Planet Earth.
7. The relationship with, and obligations to, the United Nations
8. That there are international Courts ,which by agreement have supremacy even over the UK Supreme Court (European Court of Human Rights, International maritime law, International War Crimes Court…).
9. The position, function, extent and purposes of the Monarchy
10. The position, function, composition  and purposes of the House of Lords
11. The abolition of unconstitutional courts and procedures, such as the Privy Council and ‘The King or Queen in Council’ , and archaic sinecures. The limits of prerogative powers. The substance of discussions to be made open to Parliament (unless contrary to national security, see §24).
12. The formal separation of the Executive, the Judiciary and the Legislature, including the abolition of certain government posts – e.g  Lord Chancellor, Advocate General. The assertion that the processes of the Executive , and the Legislature must be lawful and thus judiciable.
13. The sovereignty of Parliament: Parliament as the only modifier of the Constitution and the mechanism which would be required (probably a two thirds majority of a minimum attendance of both Houses of Parliament).
14. The limits of Parliamentary privilege.
15. Electoral matters, including the form of representation, the funding of parties, the method of recording of votes.
16. The proper conduct of referenda and petitions to Parliament; and the extent of the validity of other means of participatory ( or deliberative) democracy.
17. Similar Constitutional matters in the constituent nations of the UK and the nature of their relationships with the UK
18. The provisions relating to treaties binding the UK to foreign states or organisations.
19. The structure of local government, its powers and relations with central government.
20. Definitions of property held in common for all the people or for local neighbourhoods; Rights of Way and other rights to the enjoyment of the natural world.
21. The nature and rules governing free-standing national institutions such as the BBC, the Bank of England, the NHS.  The definition of publically owned services and productive corporations, cooperative organisations and mutually owned organisations.
22. The right to any form of economic system and structure ordained by Parliament.
23. The definition of jurisdiction under which UK law reigns supreme over foreign and multinational corporations
24. The legitimate roles of the armed services and the internal legal system to which they must adhere.
25. An outline of matters that prejudice national security and might lie outside the democratic process, such as states of emergency, D-notices.

Of course much of the above list already exists and is available to the Courts in statutes, regulations and common law, but it  needs an overarching codification,  the construction of which will reveal anachronisms and anomalies which can be rectified.

Any government that actually wanted to change the nature of the establishment would be blocked at every move. The Establishment will attack even the mention of a Royal Commission on the Constitution, as it will rightly perceive that a written Constitution will bring to light the informal networks of the elite which are the real power in the land. Through their right-wing media, they will hand down stultifying platitudes to be uttered momentously by golf club bores, along the lines of , ‘Britain has never needed a constitution, we have one and its unwritten, constitutions are for other (implied, lesser) countries , our democracy is centuries old and doesn’t need one’;  and the moronic  ‘more red tape’, the final answer of the uneducated.

So they will put up a savage fight. The Labour Government may need the supreme paradox of requiring an Order in Council, to establish a Constitution which will abolish such orders.