The British muddle: We need a new constitution to make coherent sense of the many changes to our old and increasingly ramshackle one


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The Independent Online

It is often said that “constitutional affairs”  rarely make it to the top of the political agenda, and that, generally, voters are uninterested. Yet, in reality, how we run our country, and even whether it should exist in its current form, naturally arouses great passion. Most obviously this was the case in the Scottish referendum campaign – with its record turnout and sometimes divisive impact. It has also been true of our unfair voting system – which delivered a flukish, and probably unstable, overall majority for the Conservatives in the general election.

To a minority, albeit a sizeable one, of the population the future of the UK in the EU is of transcendent importance, while the continuing anachronism of the House of Lords is a minor affront to any practising democrat. More widely, there are fears that the Civil Service is in need of modernisation, and that government is not always as effective as it might be. These are just some of the issues we explored in our series on the British constitution, in this 800th year of Magna Carta. As Tony Hancock joked, this newspaper is trying to ensure that “she did not die in vain”.

It is apparent that our democracy isn’t working very well. Like an intricate piece of clockwork taken to pieces, had some new components added, and then reassembled untidily, it is starting to malfunction. This process began with the otherwise extremely welcome devolution of power to Scotland and Wales, as well as the Blair government’s limited reforms to the House of Lords, creation of a Supreme Court, further integration with Europe, a Freedom of Information Act, and the power-sharing agreement in Northern Ireland.

Since then we have had a surprisingly (to some) effective coalition government, the Fixed Term Parliament Act, a lacklustre debate and plebiscite on the alternative vote,  and that Scottish independence debate. On this Government’s agenda is, notoriously, a possible withdrawal from the European Convention on Human Rights, a British Bill of Rights, so-called English Votes for English Laws, further devolution for Scotland, possibly including full fiscal autonomy, and more limited changes in Wales, the “Northern Powerhouse” and more spending power for English regions, and the EU referendum. So far from being well down the agenda, constitutional affairs seem likely to occupy a good deal of voters’ minds over the next few years.

It is a crowded and potentially self-contradictory agenda, and it cries out for a more cohesive approach. We now have a constitution that is more written, and written across many disparate pieces of legislation, than unwritten. Many of the flexible old conventions and traditional rules co-exist awkwardly with precise clauses in Acts of Parliament and radically altered institutions. Who should arbitrate these matters? The new Supreme Court? The will of the Commons?

The traditional answer for countries undergoing a constitutional crisis – usually, but not exclusively, at their birth – is for a constitutional convention to be elected and given the task of drawing up rules that are fair, command public support and deliver, or more realistically balance, certain generally accepted goals such as the delivery of effective government, protections of rights, and offering the fullest participation and involvement of the people.

The great irony is that our current constitutional arrangements seem unable to create the body that would perhaps resolve some of the new dilemmas. We shall be muddling through for some time yet.