Monday, July 03, 2006

Hurrah for the British Constitution

And not just because I couldn't pronounce it on Saturday night. I've been thinking (slowly of course) in my absence about matters both high and weighty. What shade of duck-egg for the bedroom? Why does Nadal wear a singlet to play tennis? How much is the bathroom going to cost? Is an unwritten constitution more desirable than a written one? Just one of these is the subject of tonight's post, and luckily for all of you it's the last one (though if anyone knows any Polish plumbers...).

The American Constitution is a thing of beauty; perhaps the greatest and most permanent product of the Enlightenment. It's language is concise, and even melodic. What it conveys is simple in its construction, and beautiful in its simplicity. The British Constitution is ever-changing, undefinable, a fudge, a compromise. Yet it is also peculiarly effective. I would much rather our current system, whereby all the Constitution does is provide parameters of power, than the situation in the States, where misinterpretation causes conflicts irremediable by the will of the people. I will try to explain why I prefer it this way; but it should be borne in mind that most of this is extemely subjective: I am absolutely not advocating the Westminster model for adoption abroad - of which more later.

1. If we were to adopt a written constitution now does anyone believe that it would have the stark elegance of "We the people..."? As a reference I cite the godawful monstrosity of the European Constitution - that was described by one of its authors as literally unreadable. This leads me to my first point. An ideal written constitution should be more remarkable for what it doesn not say than for what it does. Any document that includes policy on transport or even education is unsuitable. With the managerialist, worthy types currently in power, (of any party and of none) a British constitution would be prolix and banal.

2. A written constitution would merely embody the prejudices of the day. This is the point the fragrant Natalie was making when she said that she wouldn't mind an old constitution, but would hate a new one. By definition, a constitution is a founding document; a document that embodies the character of the nation. What do you reckon this lot would give us?

3. For me the most important reason I don't want a written constitution is that it removes entire areas of policy, philosophy and ethics from public debate. Looking at America, the main reason that abortion is as divisive as it is, is that it has been enshrined as an ersatz constitutional right. If it were the preserve of public debate, and State law, I cannot belive it would be as corrosive an issue as it is now. The correct place to debate national law is in Parliament, not in a Supreme Court. This argument stands even when the legislators are incompetent, venal idiots. We can chuck those bums out eventually. We can't deselect judges (in fact it's almost impossible even for the incompenent, venal jackasses). With a written constitution interpreted by judges, the final arbiter of the laws of the country is removed from public accountability.

4. There are three reasons why I don't want a written constitution. A reason why I do want an unwritten one is that it provides a better framework for Government. It is a system primarily based on precedent, tradition and decency (which explains why it has taken such a pounding recently). But there is always one recourse for those unhappy with a decision of government - elect a new one.

Four reasons, sort of, with which one can disagree if one chooses. But the underlying theme here is that an unwritten constitution is fundamentally more democratic. The US constitution seen above is elegant and brief. The Diceyan explanation of the British constitution is briefer and perhaps more elegant still. As put by one law lord (Eldon?) "The legislature write the law; the executive carry out the law; and the judiciary interpret the law." I rather like that idea.


Blogger Serf said...

I am largely in agreement. But what does one do when the government so blatantly disregards the constitution?

10:38 am  
Blogger Prodicus said...

The Human Rights Act serves the function of a written constitution, in part, which is why I am opposed to it.

It overrides and subverts much if not most of the legislation passed by the representatives of the people of this country. It enables judges to make substantive law (as in countries with written constitutions) and thereby to dictate to Parliament. This is a complete reversal of the historic relationship between court and Commons which makes a mockery of the very idea of Parliamentary democracy, bringing it and the judges into disrepute to the detriment of both constitution and people. It has put real power into the hands of mischievous lawyers who share the present government's world view and who hold no brief for the welfare of the country as a whole.

The Lord Chancellor, who tried and failed to reject his very title as out of keeping with his personal agenda, would clearly introduce a written constitution if he could. As a socialist constitutional lawyer, of course he would. He is doing it, albeit piecemeal.

11:23 pm  
Blogger MatGB said...

The Human Rights Act serves the function of a written constitution, in part, which is why I am opposed to it.
No it doesn't, it adds to the body of laws that make up the constitution. We don't have a single, written, document as the constitution. The term "unwritten" refers to this, it's got nothing to do with it not actually being written down, it is. What do you think the Bill of Rights and the Acts of Settlement were, they're part of the constitution. As are the various Representation of the Peoples Acts, Acts of Union, etc.

It overrides and subverts much if not most of the legislation passed by the representatives of the people of this country.
No it doesn't, that's a tabloid lie.

It enables judges to make substantive law (as in countries with written constitutions) and thereby to dictate to Parliament.

No, it doesn't. All the Act enables is for judges to declare legislation incompatible, and return it to Parliament and let Parliament decide. Parliament could choose to keep the legislation they passed, they may have wanted to change the HRA in that case. It's written that way to ensure that Parliament remains sovereign. Deliberately so. Whenever you read an analysis that says otherwise, it's lying to you. Don't believe the lies, read the Act (I have).

Tim? I agree, a written constitution is something I'm not keen on, I don't like to set things in stone. OTOH, the French have one, and they just throw it out and start again every 50 or so years, so it's the Americans that give it a bad name, not the idea itself.

I like the British fudge. But I do think certain aspects need updating, clarified and amended. After all, most of the Commonwealth have written constitutions that are mostly based on how we're governed with amendments for this specific requirements.

I'd like a new set of Acts of Settlement to clarify the powers of Govt for the modern era. But those Acts would need to be accepted as part of the tradition, not over writing and throwing away the tradition. Power Commission called for a new Concordat. Combine that with Dave's call for a Bill of Rights (which would mean amending/replacing the 1689 Bill) and we may be getting somewhere.

11:46 pm  

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