Here come the judges

Conor Gearty

  • This Time: Our Constitutional Revolution by Anthony Barnett
    Vintage, 371 pp, £6.99, December 1997, ISBN 0 09 926858 2
  • The Voice of the People: A Constitution for Tomorrow by Robert Alexander
    Weidenfeld, 214 pp, £17.99, September 1997, ISBN 0 297 84109 2
  • The Making and Remaking of the British Constitution by Lord Nolan and Stephen Sedley
    Blackstone, 142 pp, £19.95, November 1997, ISBN 1 85431 704 0

At Sunday mass in my North London parish there was recently imposed a ‘New People’s Mass’. It came suddenly and without warning. One week, we were all enjoying versions of the Sanctus and the Kyrie delivered from the organ loft by a group of locals, musical and devout. The next, song sheets were handed out, with music few could read, and we were expected to sing along. The New People’s Mass has ever since been rather a grim affair – a dreadful noise in the pits while the faithful work out where quavers go and what crotchets sound like. The change had been made in the name of the People by anonymous tribunes so certain of their rectitude that to consult the congregation, much less let it decide, would have been tautological.

After a few years of disgrace following the collapse of various ‘People’s Republics’, the ‘People’ are back with a vengeance – currently as a fashion accessory for the believing democrat. In the early Nineties, it was chic to have a baby in one hand and a cappuccino in the other. Now the trendier of our politicians and intellectuals carry the People in their rucksacks. Primus inter people is the founding director of Charter 88, Anthony Barnett, whose book attempts to recapture for his constitutionalist tendency the drama of ‘our constitutional revolution’: ‘“we the people” – to use a long-coined phrase that may finally become currency in Britain – have changed, especially in our relationship to authority.’ The idea of the book is unobjectionable: it asks what last May’s General Election ‘really tells us; explores the significance of the response to Diana’s death; shows that the old British system is broken; explains what a constitution is; advocates a written constitution; suggests a strategy for change; probes the meaning of English and British identity; and looks at the choices facing Tony Blair’. But it’s unreadable and hasty, ‘drafted between May and August 1997 and finalised after the events of September’. Barnett is himself ‘acutely aware of the missing references, the partial arguments and contributions unheeded’, but excuses it all by declaring his aim to have been ‘to show how the principles of reform, linked and complex though they are, can be debated in an open fashion’. But this aim is undermined by serious errors of judgment.

The book is in two parts. Five chapters appear under the general rubric ‘The Meaning of 1997’. Barnett says he has ‘sought to recapture the moment of 1 May’ when, in his view, the people ‘upended the axioms, the premise, the foundation on which English constitutional debate has rested’. This involves a sampling at ‘some length’ of the press coverage prior to the election and a description in ‘some detail’ of ‘the corruption and sleaze voters consciously rejected’. A third chapter provides an account of selected historical events across the world and an opinion on the conduct of Labour in its first weeks in office; a fourth tells us about the election campaign and the relevance (or irrelevance) of constitutional reform as an issue during it. This part of the book is like reading a bunch of Sunday newspaper articles – which would not matter too much if there were some deeper structure, but there is little or nothing in an analytical vein. Barnett takes us back to the recent past, not to explain it but rather to relive and (he hopes) savour it. It is this addiction to the moment that is responsible for the extraordinary Chapter Five with which the first part of the book draws to a close. Its title is accurate as to its content and style: ‘Diana. “You was a Rose in a Garden of Weeds.” ’

The impetuosity which explains the existence of the first part of the book damages the second, which is called ‘Voicing the Constitution’. Here Barnett sets out to ‘outline a case for reform’, opening with ‘a lengthy chapter which argues ... that Britain’s present constitution is broken’ and that now is the time when ‘the process of writing down the constitution can be embarked upon’, a process ‘that needs inventive public participation’. But with no narrative framework to prop it up, the rhetoric that was already tiresome in the previous section of the book now becomes exasperating. Defenders of the status quo ‘only just manage to wheeze clichés about wonderful chaps, Parliamentary sovereignty and the best system of government in the world.’ ‘If it is so good, why not write it down?’ he asks. The ‘lived tradition that once ensured a restraint upon the abuse of power has withered. Its lungs no longer speak out against impropriety.’

The temptation to intervene becomes impossible to resist. Consider this statement: the ‘classic division of State authority into three branches – legislative, Executive and judicial power – is inadequate. Another branch of the State is now growing, namely, accountability.’ Provocative, perhaps, but what does it mean? The legislative branch enacts the laws, the executive executes them and the judiciary adjudicates upon their legality, so what does this fourth branch do? How do you account for things without having any power to exercise? Who are these constitutional accountants? Apparently they do ‘exercise an official power’. The executive in another guise, then? No, not quite: ‘The more that official authority is decentralised and shared, the more clearly accountability becomes essential to legitimate rule.’ So is it a principle to which all three branches are subject rather than a branch in itself? We never find out. The discussion is summarily wrenched from matters constitutional and becomes the grandest of historical inquiries into the growth of nationalism, democracy, empire. These few paragraphs of historiography are then abruptly terminated:

In other words, what a constitution ‘is’ has changed successively, since the first secular definitions of national sovereignty began in the 17th century. Redefining Britain’s constitution can mean reconnecting with that intense, pioneering English debate that, as I noted in the Introduction, has been pressed into silence. But it does not mean returning to that time ... and its presumptions. I will therefore look at a crucial reform that shows the way in which constitutional reform is itself a moving target.

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