Thursday, February 16, 2006

Why Can't We Have a Constitution Too?

What about a constitution for Britain? There has been much head-shaking and teeth-sucking over the difficulties the various groups in Iraq have had agreeing on a constitution. But at least they are going to have one. We don’t - at least not a formal written constitution defining and limiting the powers of the government and codifying the rights of citizens.
Instead we have a rag bag of precedents, statutes and bits of international treaties like the European Convention on Human Rights which have been incorporated into British law. But the whole thing is highly provisional and largely irrelevant when it comes to the power of the executive to do what it wants.
And I’m not talking here about the Scottish Executive, which does, actually, have a pretty firm constitutional foundation in the Scotland Act. The real executive branch - the Prime Minister effectively - has very few legal constrains because it exercises the powers, essentially, of a Monarch.
In the past, these absolutist powers have been formal only. Previous Prime Ministers, Margaret Thatcher included, have abided by long-established conventions of British governance that curb the conduct and powers of the Prime Minister. Such as the primacy of Parliament; the rights of ministers in cabinet; the independence of the judiciary. But there’s nothing written down. If a Prime Minister decides to ignore them all, to rule from his sofa without regard to legislature, cabinet or judges, there is nothing whatever to stop him.
Many people - not least the much maligned Law Lords - are worried that our lack of any formal constitution has become a license for the Prime Minister to do what he wants. To run roughshod over human rights; to abandon conventions of cabinet government; to denounce those who defend long-cherished freedoms like habeas corpus; to declare war without proper consultation or proper authority under international law; to depart from inconvenient international treaties like the Geneva Convention; to reinterpret laws based on them, like the Human Rights Act; to invent new constitutional principles, such as the “war on terrorism” being more important than civil liberties.
Constitutions are supposed to set out the principles of government, the distribution of power among the various arms of the state - legislature, executive, administration - and to establish the rules by which a democratic system functions. Most democratic countries have them. Drafting proper constitutions is usually the first act of democratic societies when they emerge from tyranny. Like Germany after the War, Russia after Communism, South Africa after Apartheid. Indeed, many people argue democracy is impossible without strict controls on the powers of governments
But British constitutionalists have long argued that our informal system of checks and balances works well. We are the oldest democracy, and we have constitutional principles. as it were, in our blood. Many have argued that relying on these conventions about ‘how things are done” is preferable to formal written constitutions, which become a charter for lawyers.
In America, for example, there is a written constitution overseen by a Supreme Court which some say puts too much power in the hands of judges. That the elected House of Commons, expressing the will of he people, is a far better instrument for holding government to account. However, in Britain neither legislature nor judiciary seems to have any effective constitutional power over the executive.
Tony Blair rarely appears in Parliament, doesn’t consult his cabinet, and treats Law Lords with undisguised contempt. He governs through a court of close confidants and admirers in Downing St.. He picks and chooses from the advice he gets from law officers, like the Attorney General’s on the legality of the Iraq invasion.
Parliament isn’t working. Our unfair electoral system, in which a party with 35% of the popular vote can win an overall majority of 66 seats in the Commons, allows the PM largely to ignore parliament. MPs know that to get on in their careers, they have to vote the way the PM wants them to.
Tony Blair also controls his cabinet through patronage. Only those loyal to the Prime Minister are chosen, and they only remain in their ministerial posts so long as they keep their noses out of the business of running the country. Once in the Cabinet room, even independently-minded politicians, like Clare Short, lose their bottle.
Law Lords, like Lord Hoffman who incurred the wrath of Number Ten last year, may fulminate against the PM’s powers of detention without trial, but ultimately the judges can be ignored. A malleable press and media can be deployed to drown out the caveats and qualifications of the bench. I’m told that there is something like revolt among the senior justiciary at the PM’s recent attempt to tread on their turf. But on things like control orders, detention without trial, deportation to countries with poor human rights and the use of evidence derived from torture, Blair gets his way.
We like to think we have a free press in this country, and formally we do. But it is essentially the freedom of a few wealthy and often non-British proprietors to promote their own views and private interests. People like Rupert Murdoch, an Australian with American citizenship, own large chunks of the British press, in his case including the Sun, Times, Sunday Times. By carefully cultivating such press magnates, and discretely promoting their business interests, Prime Ministers can rely on support when times get tough. A centralised, near monopoly press is a powerful instrument of executive dictatorship.
The BBC has formal independence from government enshrined in its Royal Charter and its Board of Governors. But the PM chooses who sits on the Board, and if the Corporation gets out of hand, it can be brought to heel, as it was after the Hutton Report. The effective sacking of the Director General, Greg Dyke, and the Chairman of the Board of Governors, Gavyn Davies - because one of their journalists made a couple of minor mistakes while exposing how Number Ten manipulated the evidence for WMD in Iraq - has shattered the confidence of the BBC in holding government to account.
In the past, civil society also exerted a check on power. Poltical parties, churches, mass movements like the Campaign for Nuclear Disarmament, Greenpeace, etc.. mobilised hundreds of thousands of people. These intermediate bodies still exist, and there is a plethora of think tanks and special interest groups. But throughout society, ordinary people have stopped joining organisations and mass movements.
Occasionally the Stop The War movement or Make Poverty History can get hundreds of thousands onto the streets. But they are one off demonstrations - emotional spasms - rather than organisations which can keep sustained pressure on government. It is the legion of private PR men, commercial lobbyists, corporate affairs executives from big corporations who exercise influence.
Yet, we need civil society today more than ever. We have been taken into a disastrous war in Iraq on a false pretext and on an agenda driven by Republican ideologues. Yet no one can bring the PM to account. There are unprecedented moves to reduce historic freedoms and curb the rights of the citizen. Compulsory identity cards will track our movements; laws on detention without trial are to be extended; there is to be an offence of “justifying or glorifying terrorism”, which could have put Nelson Mandela in jail or the deportation lounge, police powers to hold terrorist suspects could be extended to three months.
Some of the more extreme measures like resorting to Treason laws or setting up secret courts were floated by the government for presentational reasons - to generate headlines suggesting a draconian crackdown after the London bombings. But many profound illiberal measures are likely to end up on the statute books this winter.
Without a written constitution, there is very little to restrain this elective dictatorship. The battle begins next week with the return of the political classes.

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