It's time for an end to piecemeal reform—Britain now needs a proper written constitutionby David Marquand / July 28, 2007 / Leave a comment
Published in July 2007 issue of Prospect Magazine
Robert Hazell has got himself into a terrible muddle in his last article for Prospect. He says, rightly, that it is time for a second wave of constitutional reform to follow the first wave that was one of the great achievements of Blair’s first term. He lists a series of radical reforms which ought to be included, ranging from further refinement of the devolution settlements in Scotland, Wales and Northern Ireland to Lords reform, parliamentary reform, electoral reform and a British bill of rights. He is right about these as well. He says that Lords reform and a British bill of rights should be referred to a convention of some kind, or at least to public consultation. I applaud that too. But then, for no good reason, Hazell the radical reformer suddenly gives way to Hazell the timorous establishment whig. Jack Straw, Gordon Brown’s campaign manager, has come out for a written constitution—albeit rather gingerly. Four of the six candidates for Labour’s deputy leadership have done the same. But for reasons I cannot grasp, this is too rich a stew for Hazell. A written constitution, he says, would be a “huge project” with little public support. What, he asks fearfully, should it say about the House of Lords, the monarchy and the established church? Would it be the constitution as it is, or as it ought to be? Would it be entrenched, and if so how? These are valid questions, but they are not impenetrably difficult. And they all apply, equally strongly, to Hazell’s own proposals. The combination of Lords reform, electoral reform, refinement of devolution and a bill of rights would be a huge project. So would a convention on Lords and electoral reform and public consultation on a bill of rights. At least two of Hazell’s proposed reforms—refinement of the devolution settlement and a British bill of rights—also raise the question of entrenchment. The Human Rights Act was not properly entrenched, and this failure has led to a series of bitter disputes between the executive and the judiciary. Without entrenchment, how can we be sure that a British bill of rights will not produce a repetition of that sorry tale? But the real question goes deeper, and Hazell has not addressed it. Constitutions—even unwritten ones—are not mere collections of institutional nuts and bolts, to be tinkered with at the whim of the government of the day. They are systems of interacting elements. Change in one element produces changes in others, often unforeseen and sometimes unwelcome. The changes introduced by the Blair government did not emerge suddenly from a cloudless sky. They followed a whole series of changes—some formal, some informal—which had transformed the “old” constitution inherited from the Victorians. Entry into the European community and the referendums on Europe and devolution had undermined the doctrine of absolute parliamentary sovereignty. The Thatcher government’s ferocious centralism had destroyed the delicate balance between central and local power which had been one of the key elements in the informal constitution of the past. Increasing judicial activism had called the old relationship between the executive and the judiciary into question. Then came the first Blair government’s flood of reforms. Taken together, they were more radical than anything seen in this country since the 1832 Reform Act, perhaps since the Act of Union. But they did not spring from a coherent vision. All too often, ministers ignored the logic of their own changes and clung to the Westminster authoritarianism of the past. Devolution to Scotland and Wales went hand in hand with increasing centralisation in England; the Human Rights Act with illiberal statutes strengthening the state’s capacity to intrude into the lives of its citizens. Blair and his ministers gave the already languishing “old” constitution the coup de grâce. But it was replaced by an ad hoc miscellany of measures, pulling in different directions. The resulting constitutional wasteland is rapidly becoming a breeding ground for jurisdictional conflicts, destructive populism and even illegality. More pragmatic ad hocery, however well intentioned, will make things worse. “If it ain’t broke, don’t fix it” is a wise saying. But as Hazell himself implicitly concedes, the British constitution is now broke. It can’t be fixed piecemeal. A written constitution, based on first principles, is the only realistic alternative.