Written Constitution for Britain

Anthony Barnett asked the six candidates for deputy leadership of the British Labour Party their opinion on a written constitution. He got full replies on open democracy. The questions are excellent and the replies, for the most part, are straight forward.

Hazel Blears comes off worst in the answers. She argues against a written constitution as it gives too much power to judges, who come from a 'narrow strata' of society. This is false. Judges are given tenure as specialists based on merit in a republican system.

Britain's constitution is part written in statutes and partly maintained through custom and convention. The judicial plays exactly the same role as in a written system, just that the constitution is harder to amend in a written one.

Activist judges are a problem, but they are exposed as activists because of the clarity a written constitution provides.

There is still the issue of constitutional law and practise being developed outside of the written constitution itself, and ended up an aggregate of constitutional allowances, but in most cases, such as Income Tax and Workchoices, it is Parliament that is taking advantage of that activism and not relinquishing their new judicially won powers.

It is as much a failure of Parliament as the High Court. An unwritten constitution will not change that, and if anything, an unwritten constitution is far easier to change statutorially and by breaking convention - especially in an emergency - which is usually when constitutional bounds are expanded.

Blears also states that she is 'at heart a unicameralist'. A parliament with one body is probably the worst of all structures. Great for the executive in a Westminster system, but bad for governance. The unicameralist parliament in Australia managed to produce the unchecked excesses of Joh Bjelke-Peterson.

One of the purposes of a written constitution is to restrict government through clear law, that is higher than statute, meaning government cannot amend it without a referendum or public will (though NSW has only parts of its constitution entrenched).

The constitutional law and organisation structures are design to expose tyranny quickly, and to recover from a tyrannical government or action with haste. Unicameralism is very weak in this area.

The answers by the other candidates on the purpose of a written constitution did not touch this issue. Most of the answers were that the written constitution handed power to individuals and the community. For instance Peter Hain:

Yes - as a way of handing more power down to individuals and local communities, and entrenching democratic rights and accountability.

Presumably his view of a constitution is one that Parliament cannot amend at whim, which means the entire document will be entrenched and only modified by referendum.

From the comment Hain sees a written constitution as being synonymous with a Bill of Rights. This is a very modern republican view of a constitution - which in republican doctrine is incomplete without constitutional liberties that the legislative and executive cannot intrude into.

The third aspect of his statement is that he appears to see the written constitution as a chance for organisational renewal. The House of Lords is an undemocratic body in British system. He answers in another question:

I am in favour of replacing the House of Lords with a fully, democratically elected Senate, with powers to revise but not block legislation so that the primacy of the House of Commons is not undermined.

Hain's does not mention how the Monarchy fits into his comment, in what is a very republican statement. Others answered on the House of Lords that it should not be able to amend bills or veto a bill from the House of Commons.

Anthony Barnett is to be congratulated for asking good questions, and the candidates for their replies. Very interesting.

Permalink, Written Constitution for Britain, Jun 2007, cam
guy herbert: So in what way does a House of Lords/Senate that can't do anything against the will of the Commons, as suggested by most candidates, differ from Blears' unicameral approach?

We are already close to it, with a tightly disciplined majority under Blair meaning the executive has not got its way on only a handful of issues, and has only actually been defeated on one significant clause (the one that would have permitted 3 months police detention without charge) in 10 years. There are plenty of unicameral systems where the executive has less power.
cam: I took the all the mentions of not having veto, etc, as not being able to allow the upper house to block supply. I don't personally agree with that. Since, presumably from other answers, they do not want the upper house to originate spending bills, like the US Senate can, then blocking supply is a check and balance.

It requires responsible government, and the Australian Democrats have had issues with trying to come to a suitable method to allow the executive to provide good and consistent government while really only having the blocking of supply as the biggest card up their sleeve.

IIRC, originally Don Chip said he would not block supply, th e concern being that he did not want to precipitate another constitutional crisis like in 1975, however, their policy became that they would block supply if they needed to.

I think the Australian Senate is a good model. I think it is better than the appointed upper houses in other Westminster systems like Canada's, and I think its more limited powers in comparison to the US Senate still allow the House to have primacy.

The UK might not be able to construct federal electorates for the upper house, given its Parliament's national structure, even with current devolution, maybe one super-district with PR would be a just method.

But IMO, the Senate should not be able to initiate money bills, and should be able to block legislation that is repugnant, including supply.

with a tightly disciplined majority under Blair meaning the executive has not got its way on only a handful of issues

That is the probably with parliamentary systems, executive discipline is easy to extend into the legislature as the executive is already embedded in the legislative body. One of the problems the Australian Senate has is that members of the Executive can be in the Senate too. That is something any change to the UK upper house should prohibit. It is important that the upper-house remains a truly legislative body.

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