Do we need a constitution?
- The Constitution of the United Kingdom
Institute for Public Policy Research, 128 pp, £20.00, September 1991, ISBN 1 872452 42 6
- A People’s Charter
Liberty, 118 pp, £7.99, October 1991, ISBN 0 946088 39 X
‘That the influence of the Crown has increased, is increasing, and ought to be diminished.’
Motion by John Dunning, passed by the House of Commons, 6 April 1780.
A constitution is a device for limiting the power of the executive. That ought to answer the question whether Britain needs one. For most of the 20th century, indeed ever since the Parliament Act of 1911 curtailed the power of the House of Lords, constitutional tinkering has been the province of eccentrics. Republicans, regionalists, advocates of electoral reform all counted as faddists, to be encountered at Liberal Assemblies or at Tony Benn’s annual commemoration of the Levellers.
That is no longer so. The Seventies saw a revival of the movement for Scottish self-government. There can be no Scottish devolution without an element of a written constitution, bringing with it the power of the courts – or of a specially constituted court – to interpret the terms of whatever Scotland Act is in force. It is highly probable that after the next election there will be a new ‘Scottish crisis’ – either because the Tories, if they win, will refuse to budge on the self-government issue, or because a non-Conservative majority, of whatever stripe, is likely to be divided on how far to stop short of the total independence that the SNP demands. For that reason alone an element of constitutional codification is likely in the next decade.
Quite apart from the Scottish question, we are getting a written constitution through the back door of Brussels. To put it another way: when Britain acceded to the European Community, the principal component of our unwritten constitution, the sovereignty of parliament, was irretrievably weakened. From 1973 onwards, directives made in Brussels became legally binding in the UK; judgments of the European Court in Luxemburg on Community law applied in Britain; and British law incompatible with Community law could be set aside – a process increasingly adopted by British judges sitting in British courts. If European political union on a federal basis ever takes place, Britain will have a written constitution whether it likes it or not. But those who object to a federal Europe on the grounds that it undermines the sovereignty of the Westminster Parliament are manning a last ditch that was overrun 18 years ago and over which they themselves hoisted the while flag when they signed the Single European Act in 1986.
These, however, are not the only reasons why the bandwagon of constitutional reform has been gathering pace. There is a more widespread feeling than for many decades that civil liberties are under threat, that our existing institutions are inadequate for protecting them and that our public political ceremonial bears less and less resemblance to the realities of the exercise of power: that, to adopt the phraseology of Walter Bagehot, the divergence between the dignified parts and the efficient secret is unprecedently wide. Perhaps in this, as in so many other respects, greater familiarity with what goes on in other countries has undermined the assumption that British is best. The undignified interrogation of Clarence Thomas may not have done much to enhance his personal standing or that of the institution that he now serves. But it helped to remind us that there is such a place as the United States Supreme Court, and that it seems to matter desperately to a great many people who its nine justices should be. The judgments of the European Court of Human Rights at Strasbourg, to which Britain has had to bow more often than any of the other participating states, may perhaps have had a similar effect.