Henry McLeish: the UK needs a written constitution

Written by Henry McLeish on 8 March 2016 in Comment

The EU referendum is just one example of why Britain's unwritten constitution is not working

Visiting the Supreme Court in Washington last week, I was reminded of the importance of this constitutional court to the lives of ordinary US citizens. In sharp contrast, I thought of the so-called British constitution, which is in crisis.

Of course there is no written constitution. That’s why we are having a referendum on Britain’s membership of the EU. It’s not so much about the challenges facing either Britain or the European Union, but more to do with internal strife within the Conservative Party, and another example of the near total power now exercised by the House of Commons and, for the next five years, the Conservatives. 

This may be the logical outcome of our parliamentary democracy where the winner takes all, but for how much longer can the British people be at the mercy of a ramshackle set of conventions, rules, regulations and laws created over a thousand years masquerading as a constitution?

Our archaic system isn’t working. There are few checks or balances in our constitutional framework and the EU referendum debate has exposed the key priority of the Government: the safeguarding of the absolute sovereignty of the Conservative Party rather than that of the British people.

This is an increasingly dysfunctional and disrespected political system. There is also a growing and damaging imbalance of power between the institutions of the state itself.

Lord Hailsham in 1976 described it as an “elective dictatorship” and that applies even more today. Governments are increasingly inclined to introduce fundamental constitutional changes, many of which are effectively irreversible, and are unwilling to respect the independent authority of the judiciary, the civil service, local government, parliament itself and the legislatures of the other nations in the UK.

Post-devolution the importance of our four-nation politics continues to be undervalued and often marginalised. Our relationship with the EU remains fractious and fragile, to the extent that since our accession to membership in 1973 we have failed to recognise the reality that nation-state power has been ceded and there is no such thing as the absolute sovereignty of Westminster. We are living in a post-sovereign, multi-nation, interdependent world.

Our historic and uncodified constitution has evolved in a haphazard manner, failing to provide respect for different parts of our constitutional framework and failing to secure any concessions from Westminster about the legitimacy of the new ways of running a modern Britain.

The single dictatorship of the Conservative Party in the House of Commons is operating without any constitutional safeguards or effective scrutiny.  Democracy itself is being undermined as the Government moves to undermine electoral registration, deny votes to 16 year olds, promote boundary changes for political gain and destroy the rights of trade unionists. These matters should require a debate and the consent of a constitutional discussion extending well beyond the narrow and increasingly partisan confines of the House of Commons. This is what happens in other countries, why not in Britain?

We are approaching the point where British people need to be protected from the excesses of governments between elections. With no consent other than a mention in a manifesto, a referendum on the EU is pushed through the House of Commons: the public interest plays second fiddle to the interest of the party!

We are fast becoming political subjects, engaged in elections but excluded from ongoing involvement because there is no constitution to reflect the importance of the public will. Whatever happened to Abraham Lincoln’s idea that the survival of representative democracy requires “that government of the people, by the people, for the people, shall not perish”. The Conservatives want subjects and consumers, but Britain needs citizens.

The EU referendum is only one illustration of a uniquely British constitutional mess. Our electoral system is at breaking point. Defending the historical privileges of the two main parties at Westminster makes no sense. UKIP polls four million votes and gets one MP, the SNP polls 1.4 million votes and gets 56 MPs. The House of Lords is a remarkable relic of past privilege and patronage, and to a great extent still is. Its abolition is long overdue. Four-nation politics and devolved government is still viewed by some as a concession to political pressure and not as the only way forward for modern government and the unity of Britain. Labour should lead the campaign for change.

A new constitution would safeguard our membership of the EU by creating a proper constitutional court, as in Germany and the US, and put the jurisdiction of the European Court of Human Rights and the protections of the European Convention on Human Rights beyond the reach of partisan politics.

Britain needs a constitution to save us from the arbitrary decisions of one-party government. The sovereignty of the people does matter.

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