Not Saussure

May 13, 2007

A written constitution?

Filed under: Politics, UK — notsaussure @ 11:06 am

In his speech on Friday announcing his candidature, Mr Brown told us, among other things,

Over the coming months, I want to build a shared national consensus for a programme of constitutional reform that strengthens the accountability of all who hold power; that is clear about the rights and responsibilities of being a citizen in Britain today; that defends the union and is vigilant about ensuring that the hard won liberties of the individual, for which Britain has for centuries been renowned round the world, are at all times upheld without relenting in our attack on terrorism.

I’ve long been uneasy about the idea of having a written constitution; I agree it’s a superficially attractive idea since, at least in theory, it sets limits on what the state, and, in particular, the executive may do. However…

I’ve never been too impressed with the argument that just about everyone else has got a constitution, so we should have one, too. The conservative (lower case c) in me recoils from that, on the argument that if you’ve got something that works more or less well in practice, then it’s probably best not embark on some vast new improvement for the sake of it. Fix what needs fixing a bit at a time, and see how well the individual changes and adjustments work; see, too, what unexpected effects — for unexpected effects there assuredly will be — individual changes make on other parts of the system. As one of this blog’s heroes, Michael Oakeshott, put it,

Whenever stability is more profitable than improvement, whenever certainty is more valuable than speculation, whenever familiarity is more desirable than perfection, whenever agreed error is superior to controversial truth, whenever the disease is more sufferable than the cure, whenever the satisfaction of expectations is more important than the justice of the expectations themselves, whenever a rule of some sort is better than the risk of having no rule at all, a disposition to be conservative is more appropriate than any other

And government, the mechanism for setting down the rules and procedures about how we conduct our lives and resolve the inevitable collisions and frustrations that result from people pursuing their own interests in the way that seems best to them with the minimum of interference from the state or anyone else, is something about which it seems very prudent to be conservative.

Furthermore, I distrust, profoundly, this government’s — any government’s, but particularly this one’s — instincts in this matter. On the executive and legislature being asked to codify how much power they should have, the answer, as it seems to me, will inevitably be, ‘More, please.  Much more’.

This is not, I stress, because I think we’re governed by a bunch of power-crazed, would-be dictators. Not at all; I’m sure they’re all, or nearly all, thoroughly decent and honourable men and women who’ve gone into government because they want to make the country a better place. But there’s the problem; they’ve got all this power, as it seems to them, to improve things, and they won’t want to brook any measure that restrains their power to do good.

We’ve seen this so often in the conflicts between successive Home Secretaries and the judiciary — the Home Secretary (or whatever he’s going to be called under this new dispensation that’s been rail-roaded through) wants, quite rightly, to protect us from crime and terrorism. Quite right, too. And successive Home Secretaries have felt themselves frustrated by the way the judiciary won’t let them take measures they feel, quite genuinely (though possibly mistakenly) will help them in this task. The outgoing Home Secretary said, in terms, only yesterday that

Citizens were not being protected by politicians who followed case law “to the letter”,

a sentiment that fills me with dread. I think of Sir Thomas More’s exchange with his son-in-law in A Man For All Seasons:

William Roper: So, now you give the Devil the benefit of law!Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

There’s a slight echo, too, of Henry IV, part 2:

Let us take any man’s horses; the laws of England are at my commandment. Blessed are they that have been my friends; and woe to my lord chief-justice!

Yes, I want to be protected from terrorists and other criminals, but I also want to live in a free society governed by the rule of law. And I’m fully aware that one of the drawbacks inherent in free societies governed by law rather than executive degree, diktat or ukase, is that this sometimes makes life easier for very ill-intentioned people. Fine; that’s the price we pay. But it’s — perfectly understandably — not quite so fine by Home Secretaries, since they’re trying to stop terrorists and other criminals, and will carry the can when something goes horribly wrong (actually, they’ll more likely do all they can to avoid that, but you know what I mean).

Quite simply, I don’t trust this lot to write a constitution. They’ve made a botch of reforming the House of Lords, they’ve made a botch of devolution, and can’t even run elections properly, and they’ve just rammed though, without any consultation, a major change in our legal arrangements — splitting the Home Office and creating a Ministry for ‘Justice’ — that’s caused consternation and great concern throughout the judiciary. as Bystander JP puts it, when the Lord Chief Justice sends this message to the whole of the judiciary, you know things have got to a critical stage:

The Ministry of Justice has come into being today. The judiciary consider that the creation of a new Ministry of Justice raises important issues of principle; these have been communicated repeatedly to the Lord Chancellor since January 2007 and are summarised in the judicial position paper of 29 March 2007. A working group composed of senior judges and senior Government officials has been meeting since 21 March 2007 to discuss the issues with the aim of putting in place constitutional safeguards to protect the independence of the judiciary and the proper administration of justice.The up to date position was set out in evidence of Lord Justice Thomas and the President of the Queen’s Bench Division to the Constitution Committee of the House of Lords.

We have not yet reached agreement on a way forward. We will continue with our discussions with the Government in our attempt to resolve the important issues of principle that remain.

I have convened a special meeting of the Judges’ Council to discuss these issues on 15 May 2007 with representatives of all levels of the judiciary. I will also be giving evidence on this subject to the Constitutional Affairs Select Committee of the House of Commons on 22 May 2007 when I shall explain the judiciary’s position, and the stage we have reached in our discussions with the Government.

Lord Phillips of Worth Matravers,
Lord Chief Justice of England and Wales

Nope. I don’t, in the first place, think we need a written constitution — we’ve managed perfectly well without one before — and, in the second place, I certainly do not trust either the instincts or the ability, based on their track record these last 10 years, of the government to write one that won’t end up both shambolic and completely illiberal.

I’m willing to be convinced otherwise, but it’ll be an up-hill struggle.

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  1. I think a good written constitution could have a very valuable role to play. As you say though, I don’t trust this government to write a good constitution. Almost certainly they would include a clause saying that they could override any part of it in times of national emergency – giving themselves powers to define such a thing willy nilly of course – completely negating its purpose.

    Actually this point about trust was one of my arguments against the war on Iraq. I said that although you could imagine a military intervention deposing Hussein and instituting a democratic government without enormous civilian casualties, that clearly wasn’t what a war led by the US was going to achieve. They didn’t have the interests of the Iraqi people at heart.

    Back to constitutions: I think the example of the US constitution shows what can be done if you do it well. It’s not a perfect protection of course, but it gives people a rallying point that everyone can believe in. That last point is important though – partly the US constitution works because of the almost fanatical level of belief in it by all US citizens. A problem with introducing one here is that people essentially wouldn’t believe in it and it could be easily overturned without much protest.

    So I do think it’s a good idea, but I don’t have a plan as to how to make it work. You could have an independent panel draft the document and have a referendum on it. That would alleviate the problem of the government writing it with its own interests at heart, and the referendum would make it more democratic (although there’s still the agenda setting problem). Possibly if there was a substantial public debate over a longish period of time leading up to the writing of the document – one that really had public involvement unlike the ‘consultations’ the government occasionally runs and ignores the results of – that would engage people with it enough that it might actually get some respect. That might just be wishful thinking though.

    Comment by thesamovar — May 13, 2007 @ 1:17 pm

  2. Thanks for the swift and thoughtful reply.

    As you say, a large part of the problem is in drafting one. And then, if it’s put to a referendum (a constitutional device, as I recall, introduced by the late Harold Wilson to avoid splitting his party over the Common Market), then God help us.

    How am I supposed to vote on it? I don’t like the idea of a written constitution in the first place, so maybe I should either vote No or abstain on principle. But, on the other hand, here it is, and it’ll go through or not, so let’s see what I make of it.

    Hmm. I like clauses 1, 2, 3 and 4. Clause 5 is a good idea but it could do with redrafting, since otherwise I can foresee all manner of problems, and I think clause 6 is downright iniquitous.

    You see my problem?

    I’m not completely convinced by the analogy with the American (or, indeed, the French) Constitution. America needed a constitution, since it was a new country and it’s populated by people who went there — or their forefathers did — from all over the world. Obviously, they needed a set of common principles to which to adhere, otherwise you’d have everyone saying, ‘Well, the way we did it back in England was…’ ‘But we did it differently in Poland’… ‘You both sound mad to me, but I’m from Barcelona…’.

    Similarly, the French, having destroyed the monarchy, needed something around which all the citizens of the new Republic could rally. That I understand, but, thank God, we in Britain have never been in a position where we have to abandon established practice and sit down and write a rule book. Others have had to. We’re not in that position, though. We’ve got something that works, more or less, and we can change, or the courts can change, the bits that don’t, as and when, and in response to particular problems. And then when that fix turns out not to work, or works for a while but not 20 years later, we can tinker with it again.

    We’ve got the Common Law. That’s something that’s been developed over centuries of judges dealing with real people in real situations, and trying to work out what seems the best thing to do. We’ve got the Human Rights Act — one of the best things this government ever did, and almost immediately they started to complain about its effects.

    We’ve also had the horrible example of the Criminal Justice Act 2003, which is good in parts, dreadful in others, and utterly incomprehensible, even to the Court of Appeal, in some other important aspects. That was, to my mind, a prime example of Parliament, meaning well and having half an eye to what the Red Top press would say, having a shot at determining what should happen in individual cases and leaving everyone actually involved in administering it tearing out their horse-hair trying to cope with the consequences.

    Sorry to rant like this, but the more I think about it, the more horrifying the implications of a written constitution become.

    Comment by notsaussure — May 13, 2007 @ 4:23 pm

  3. Yes, the problem of democratically drafting a document like that is quite difficult. What I had in mind with the long public debate beforehand is that (ideally) the final document should already incorporate the input of the population. If things had worked correctly, it would be automatic that everyone would approve of it. Of course, there’s a very good chance that things wouldn’t have worked correctly and the referendum would be a final check on that. If people voted against it, it would have to go back to the drawing board.

    That raises an interesting question: has there even been a proper public debate about anything? What was it like? and how did it work? Politicians often refer to the idea of a public debate, but I don’t think in my lifetime (1980-) I’ve ever seen one. I might think about this and try to write something about it.

    Here’s another view on why a constitution might be desirable.

    The current political situation has shown just how easy it is to subvert the democratic traditions you talk about by playing on people’s fears. Just imagine what the government could get away with if there was really something to fear!

    Without wanting to sound too much of a nutcase, in about 25-50 years the world is very likely going to start feeling the effects of climate change because it’s very unlikely that we’re going to do enough to avert it. Some of these effects could be fairly horrific – displaced populations, struggle for scarce resources, etc. In such a situation, a fascist or authoritarian government becomes a distinct possibility, and a written constitution might conceivably help protect against that.

    From this point of view, you could think of a constitution in much the same way that we sometimes think of good laws: written in times of relative peace and security to protect against our impulsive desires in desperate times. This government hasn’t done too well on that (cf. ‘rebalancing’ criminal justice ‘in favour of the victims’), but the idea has some appeal.

    What do you think about that argument that we need a constitution to protect our society against some sort of crisis in the future? Too speculative? Unlikely to actually help in a scenario like that?

    Comment by thesamovar — May 13, 2007 @ 6:12 pm

  4. But why do we need such a document? Why should you and I waste our time engaging in lengthy democratic debate about it? Obviously I don’t know about you, but I’m reasonably happy with the way I’m governed at the moment and would rather devote my energies to more important (at least to me) matters like earning a living, spending time with my friends, reading and blogging and so forth. Why do I need to devote my time and energy to studying this proposed document?

    When there is a fight in which I have a dog, as it were, such as civil liberties, I’ll pursue it inexorably. But I just don’t see the need to open up a new argument.

    As to your point about the possible moderating influences of a written constitution during times of social breakdown, I’m sorry, but I just don’t see it. Any written constitution would have to include a provision that it could be suspended in cases of civil emergency. Silent enim leges inter arma, as Cicero remarked in his defence of Milo for a political murder; laws fall silent at time of war. Cicero’s defence was unsuccessful, and rightly so, and Milo was exiled. But he could only be exiled because the Senate and People of Rome had the power — the soldiers — to enforce it.

    In a situation where civil order breaks down, all one has to fall back on, it seems to me, is what we depend on most of the time — common decency and a limit over which we will not step. That’s all we’ve got.

    My late father, because of his job in the civil service, was part of emergency planning in the event of a Soviet nuclear attack. His summary powers of execution in such an event frightened even him.

    Would he have used them? That’s a matter I’ll not know this side of eternity, and thank God it never came to that pass, but what good would a constitution have done in such extreme circumstances? It would have been a matter between him and his conscience and then of how many soldiers he would round up to carry out his orders, and then of how many of them would obey him.

    Comment by notsaussure — May 13, 2007 @ 11:14 pm

  5. Two words, me old china. PATRIOT Act.

    Comment by rainmanlite — May 14, 2007 @ 6:03 pm

  6. “Any written constitution would have to include a provision that it could be suspended in cases of civil emergency…” As far as I can tell, it would be unconstitutional in the US to suspend elections even during war or crisis. That’s not the case here. I’m not saying that such a document would certainly defend us in such times – for example the South African constitution pretty much explicitly ruled out the creation of Apartheid but they found a sneaky way round it – but it may well help and could potentially provide a rallying point in such times.

    Another point – if we had such a document, things like the Abolition of Parliament bill (aka the Legislative and Regulatory Reform Bill) would never even have been an issue. It would have been something that couldn’t have been contemplated.

    I think Jefferson was right, “the price of freedom is eternal vigilance”, there are no short cuts or guarantees, but a constitution helps.

    Comment by thesamovar — May 14, 2007 @ 6:13 pm

  7. “the hard won liberties of the individual, for which Britain has for centuries been renowned round the world”

    Right, so since we’ve had civil liberties the envy of the world for centuries, why the need now for a written constitution? Could this be because the government of which Mr Brown has been a central figure has proven itself so incapable of sticking to the unwritten constitution that we are driven to try a written one? (I take your point that the last people we’d want _drafting_ one would be the same lot that compelled us to seek it ….)

    What does he mean by a constitution to protect individual liberties anyway? Something like the European Convention on Human Rights, which is already part of our law? Interesting document – the hand of the common lawyer is all over it, as of course it is for the US constitution.

    If he wants a British one, can we assume he’s let go the idea of the silly European one that Mr Blair would have tried to shove on us if a few of the continentals hadn’t killed it off before he had the chance?

    Comment by Political umpire — May 14, 2007 @ 10:27 pm

  8. how far is a constitution is not written down at all .

    pls.can you send the reply to my email

    Comment by ajayi lookman — May 22, 2007 @ 6:53 pm

  9. Hello people1f0f9b8e6353955c1aca3efa7152eaf0

    Comment by Hi boys! — January 31, 2008 @ 6:55 pm

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