A written constitution can’t save us from Brexit now – it could even make things worse

A codified constitution does not resolve conflict and contradiction, it just moves it somewhere else

John Rentoul
Saturday 09 February 2019 16:03
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Once upon a time I was a living embodiment of Robert Conquest’s third law, which holds: “The simplest way to explain the behaviour of any bureaucratic organisation is to assume that it is controlled by a cabal of its enemies.”

This was literally true when I was deputy editor of the New Statesman, and the editor, Stuart Weir, couldn’t make it for a meeting of the steering committee of Charter 88. Thus I found myself, briefly, in charge of an organisation with which I profoundly disagreed.

This was in 1988, hence the name, which was borrowed from the Czechoslovak democracy movement founded by Vaclav Havel, Charter 77. I thought it was tasteless to compare the whingeing of anti-Thatcherites about the state of British democracy to the demands of dissidents under Soviet totalitarianism.

More than that, though, I disagreed with the central demands of Charter 88, which were for a written constitution and electoral reform. Unfortunately, I failed to use my position of temporary authority to sabotage the campaign. I should have suggested they waste their time by drawing up an entire constitution for the UK, including the D’Hondt method of “highest-averages party-list proportional representation”.

Anyway, here we are, 31 years later and the idea of a written constitution refuses to die. The stresses of leaving the EU have prompted another wave of demands for codifying the basic rules of how our democracy works.

The most authoritative, and therefore the most dangerous, of these comes from Vernon Bogdanor, whose book, Beyond Brexit: Towards a British Constitution, was published this week. Professor Bogdanor is famous for having been David Cameron’s tutor at Oxford, but his authority comes from his wisdom as a constitutional historian, and from the clarity of his analysis of contemporary history. His Gresham College lecture on the Iraq war, for example, was a model of its kind.

So I was disappointed that he appeared to be advocating a codified constitution. (At least he knows better than to call it a written constitution, because our current flexible constitution is written down in different places, and is governed by conventions, which are also written down.)

In fact, his book is cautious in its proposals. He does say that Brexit has injected “further uncertainty as to what the British constitution actually is, uncertainty that can only be resolved by a codified British constitution”. But a few pages further on in his conclusion he says only that “perhaps” a codified constitution could replace EU membership as the glue that holds the UK together. And the subtitle of the book promises only to take us “towards” a British constitution.

Indeed, most of the book is an excellent survey of how joining the European community and now our preparing to leave it have affected the UK. As Bogdanor notes, the UK is unusual in being the only country in the world, apart from New Zealand and Israel, to have no “protected constitution”, and even Israel has a basic law on human rights.

He rehearses the inconsistencies and contradictions of a nation pieced together out of units of differing sizes, with different forms of devolution and different voting systems. All this is topped with a doctrine of the absolute sovereignty of the people as represented in the House of Commons, which in turn leased some of that sovereignty to the EU and to the European Court of Human Rights, and which also occasionally asks the people to exercise their sovereignty directly in the form of referendums.

And when John Bercow, the speaker, overturns decades of convention to allow a majority in the House of Commons to take control of legislation from the government – whose authority rests on a differently constituted majority in the Commons – you can see why the tidy-minded reformer thinks it is time to start again with a blank sheet of paper.

Even 31 years ago, though, I thought this was an impulse to be resisted. A codified constitution does not resolve conflict and contradiction, it just moves it somewhere else. Look at the federal government shutdown in the US, produced by the separation of powers in the Constitution. Or the crisis over counting the votes in a few counties in Florida in 2000, decided in the end on party lines by the Supreme Court.

The idea that Brexit would have been easy and consensual if only we had a constitution drawn up by my colleagues at the New Statesman in 1988, proportional representation and all, is a mirage.

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