Elements of a New Constitution
Author: Gavin Barker
The Centre for Welfare Reform is one member of a broad-based campaign for constitutional reform in the UK. Here we describe the basic elements that will make up any constitutional reform and some of the key questions that will have to be asked.
A written constitution sets out the rules about how power is exercised, by whom and its limits. Anthony Barnett, in his article on Brexit and sovereignty, suggests three broad themes that a written constitution seeks to bring about:
- Firstly, it establishes the authority that different centres of power have towards each other. Can the upper chamber frustrate the lower? What can local government do? This is about the ‘separation of powers’ between the executive (the government and civil service), the legislature (that makes laws but does not administer them), and the judiciary (which adjudicates what is lawful when this is disputed).
- Secondly, it defines the powers and rights of citizens, in our case, citizen-subjects; the right to vote, to assemble, to free speech, to property.
- Thirdly, all constitutions express the aspirations of their society: the direction they wish change to take. This might be to be non-racist (South Africa), to be Islamic (Iran), or to be liberal and not fascist (Germany) or universal (France).
If a written constitution is to be the genuine expression of the sovereign will of the people, then it must be a bottom up exercise and not left to political elites to decide the rules by which we are governed. And for that we believe we need a Citizens' Convention which brings together ordinary people to discuss the rules and principles that form the main beams and foundation of a written constitution. Normally a Citizens' Convention is a large scale face to face event - but in a digital age, such a convention can be combined with online fora that crowdsource suggestions and ideas.
This is where you come in.
While we are beginning work with others to create a real-world Citizens' Convention happen, we thought we would kick off with our own online initiative. Treat this as an online Citizens' Convention and tell us what you think a written constitution should include. We’ve developed a skeletal framework below giving the broad headings that any written constitution should cover and organised these around the three themes outlined above.
However don't be constrained by this framework - if you have other proposals or issues that are not covered, then please contact us with ideas, comments or suggestions. Our goal will be to publish your ideas as articles or to make suitable improvements to this framework.
Feel free to draw on your own experience as a campaigner, public servant, charity worker, community activist or concerned citizen. Everyone has a voice and no-one should feel they have nothing to say about the foundational laws and rights they choose to be governed by.
1. Defining the Union
The UK is an unusual nation because it is made up of four distinct countries and the Scottish Independence referendum implies the right of each nation to leave the union. However, as it stands there is no clear definition of the over-arching purpose and basis of the Union, the right to leave nor the right to shape each country's constitution independently of the Union.
Can we create a constitutional understanding for the whole of the UK that is acceptable to all four countries and which leaves each country room to define its own constitution?
What kind of right to leave the Union exists and how would the right be appropriately constrained to avoid unnecessary instability?
2. The executive
The executive is composed of the Prime Minister and ministers of government, and along with the civil service, are responsible for governing the state. They are drawn overwhelmingly from the House of Commons, the Legislature.
While the executive is in theory accountable to both the Commons and the Lords; government ministers wield other powers that do not require prior parliamentary approval. These are termed ‘royal prerogatives’, an archaic and outdated residue of monarchical absolutism. The most important royal prerogatives are those that enable ministers to sign treaties with other states or declare war.
Statutory Instruments or ‘delegated powers’ are another form of special power that ministers can wield. For example the introduction of accountable care organisations in our NHS, fracking under national parks, Personal Independence Payments were all introduced without a vote in Parliament.
Sometimes special powers such as Statutory Instruments are needed because of the sheer scale of legislative work to be got through. But how do we ensure that these powers are regulated and properly circumscribed? In any case should the executive continue to exercise ‘royal prerogatives’ - or should these be replaced with a constitutional diktat that Parliament alone has the right to make these decisions?
Should we still have ministers drawn from an unelected chamber such as the Lords?
2. Legislature - the House of Commons
As touched on above, members of the executive are chosen from the House of Commons, the legislative body. Some are also chosen from an unelected Lords. Because of this there is no clear ‘separation of powers’ which ensures that members of the Legislature hold the government to account. In the UK, the Executive dominates the legislative agenda of Parliament whose members are subservient to party discipline and patronage - they do as they are told and vote accordingly. Some have called this ‘elective dictatorship’ in that, once voted in to power, government can ride roughshod over Parliament and pass any law it pleases. Periodic elections every five years are far too loose a constraint on potentially unlimited power.
How can the House of Commons gain real independence as the basis of a true ‘separation of powers’ when members of the executive (government) are drawn from the Commons? How can it effectively hold the government to account when ambitious MP’s see little prospect of career advancement by criticising the government they claim to support? Does party discipline and the Whip system inhibit real democracy? If so, what would replace it?
3. The House of Lords
The House of Lords is an unelected chamber packed with party cronies and supporters. Political parties often award loyal party activists, ex-ministers and party donors with a life peerage. This gives them enormous influence over the affairs of state.
Should the House of Lords be replaced by an elected second chamber and renamed ‘the Senate’ or upper house. If so, what should be the population size and boundary divisions of constituencies? Would these be based on larger regional constituencies to reflect regional identity, for example Yorkshire and Cornwall?
Others have suggested that the members of the Lords should be chosen by sortition to reflect socio-demographic makeup.
Still others suggest a mix: two thirds of members elected and a third chosen by sortition through a specially convened Senate Appointments Commission (see Repairing British Politics: A Blueprint for Constitutional Change by Richard Gordon QC)
4. The Judiciary
Until recently, the Judiciary was also part of a fusion of power with the executive. The judiciary only became a separate and independent organ of state in 2009. Until then, the House of Lords was the highest court of appeal in the UK.
We now have a 12-member Supreme Court whose members are disqualified from sitting or voting in the House of Lords. Its role, together with the whole judicial system, is to interpret and apply laws passed by Parliament. It cannot challenge Parliament on this matter for ‘parliamentary sovereignty’ is the cornerstone of our unwritten constitution. Parliament is the highest power in the land and can make or unmake any law whatsoever.
Clearly the avowed ‘separation of powers’ does not square with the idea of one body having so much power. A written constitution would replace parliamentary sovereignty with constitutional sovereignty; in effect a body of laws and principles designed at a Citizens' Convention and approved by referendum. These would direct the work of government and delimit the power of parliament.
What are the risks involved in the formative process of designing a written constitution, in effect a body of law that we are all constrained to live by?
5. Local Government
In the UK, Parliamentary sovereignty has been the means to amass over-centralisation of power to the centre, emasculating local government and reducing it to the delivery arm of the central state. Recent devolution of power to city regions has been piecemeal, inconsistent and secretive with no guarantee that this process cannot be reversed. The devolution settlements to Wales, Scotland and Northern Ireland lie in the balance as a result of the EU Withdrawal Bill and the refusal of Westminster to cooperate with the other nations.
How do we ensure that local government is put on an independent legal footing with proper funding and powers of its own? And what is the relationship between local, regional and national government?
What powers should local government have? Final control over all planning decisions, housing and education? Or more?
Should a formula for local government funding be embedded in a written constitution rather than be arbitrarily decided in Whitehall?
6. Bill of Rights
Liberal democratic constitutions, at least in its Anglo-Saxon form, tend to confine rights to civic and political rights: the right to a fair trial, freedom from torture and unlawful arrest; the right to free speech and freedom of assembly. European constitutions often extend the concept of human rights to Social Rights such as the right to health, education and welfare support.
Is it not time that Britain looked to European models such as Germany, Norway and Sweden, and extended the human rights to include social rights?
Should we not also move beyond individual human rights and include communal rights? For example the communal rights to land, property, digital resources, health services that are of benefit and value to the communities they serve?
Should we also expand the ‘right to life’ as a right belonging to all life, not just the human species? Should we start to speak in terms not just of the environmental right to clean air but the rights of the Environment to thrive and flourish as an end in itself, regardless of any utility from a human perspective?
Finally, should we also start to think in terms of civic responsibility and a set of mutual obligations including upholding the rights of others and not simply look to judicial remedy or state enforcement?
Elections are currently run under our First Past The Post System that ran well when the main parties were confined to mainly two - Labour and Conservatives - but is incapable of responding to modern, multi-party elections. Developments such as de-industrialisation, occupational diversity and new migrant BME communities, as well as the emergence of feminism and a new Green politics have given rise to a multiplicity of voices each seeking democratic representation in elected assemblies. We urgently need electoral reform based on the principle of proportional representation where every vote counts and no vote is wasted.
How would a citizens convention address the need to set a modest limit on new entrants while minimising barriers. For example if a well funded ‘Clown Party’ sought to promote its manifesto ‘the Circus of Fun’ - do we say ‘well thats ok, its democracy after all’ or do we set a minimum bar of entry amounting to 3-5% of the vote?
Also, given our highly polarised and tribal politics, would elections based on proportional representation make this worse or better? What happens if, in the first election based on PR, we have multiple parties in which the main parties refuse to compromise or talk to each other? What other constitutional means might be used to encourage a more consensual politics?
8. Party funding
At present there is no limit to party donations and state funding of parties is minimal. Up to a third of donations to the Conservative Party are from individual donors and companies. Labour suffers less from this one-sided imbalance and is more accountable to its grassroots membership. Nevertheless the power of donors to quietly influence the political agenda is obvious.
Should this be reversed i.e. a clear limit on individual donations and significantly increased party funding based on the proportion of votes?
10. Constitutional vision
The United Kingdom is composed of four nations, by far the largest of which is England. While traditional national identity has deep historical roots and includes strong cultural and linguistic dimensions seen in the three celtic nations of Northern Ireland, Scotland and Wales, this overlooks more modern identities based on race, faith and sexual orientation. In England, there are also strong regional identities that are moving to the fore - a Yorkshireman or Cornishman may not be comfortable with a uniform ‘Englishness’ that ignores place of birth and strong ties to distinctive landscape and communities that are no less a part of identity. In particular Cornishmen will be quick to tell you that Cornwall is a Country, not a county, with its own language, culture and distinct history.
What role can a future British constitution play in promoting a unifying vision that both respects regional and national identity whilst forging a collective sense of identity. To put it another way: is a nation a collection of people or a cultural expression?
Important issues not covered
Beyond these three broad themes, there are several additional subjects deserving our attention:
Where does the welfare state fit into a written constitution? Do we confine this question to a Bill of Rights that includes universal social rights to health, housing and education? Or, do we say that such rights require an explicit duty on the part of the state to fulfil these rights; and that such duties should be laid out in more detail in the form of a framework for a welfare state?
Is democracy defined by universal suffrage? What role might citizen juries play in inaugurating a more participative democracy? Could highly contested and polarised questions such as Brexit be referred to citizen juries as a means of enriching representative democracy and guiding our elected representatives in more careful, deliberative democracy? Should we limit the role of party politics in democracy?
You can read the Centre's Manifesto on Constitutional Reform here.
The publisher is the Centre for Welfare Reform.
Elements of a New Constitution © Gavin Barker 2018.
All Rights Reserved. No part of this paper may be reproduced in any form without permission from the publisher except for the quotation of brief passages in reviews.