by Frank Schnittger
Fri Sep 13th, 2019 at 10:32:23 AM EST
The Brexit debacle has given rise to a lot of discussion of the UK "Constitution", unwritten as it is, and the need to reform key aspects of it to prevent the abuse of power. It would be helpful if there were a written codified version of it, so at least we could all agree on what it says. Instead we have a tangled web of precedents, conventions, "gentlemen's agreements", case law and statutory instruments giving huge scope for disagreement and uncertainty as to what is, and is not "constitutional".
A convention is only a convention until it isn't, and a precedent only a precedent until it is broken. Different judges come to different conclusions as to what is permissible, and there appear to be huge gaps in statutory law. The US experience has shown that a written Constitution is no guarantee against abuse and wilful misinterpretation - see the second amendment to the US Constitution, where reference to "a well regulated Militia" has not been allowed to restrict individuals to bear arms in their own right.
So while accepting that no constitution is ever perfect, what changes would you like to see to the current UK constitution?
For me, the list is quite a long one:
1. A Written Constitution
It may be a long and arduous task, but a "Constitutional Convention" to codify and bring together in one document all the bits of convention and legislation said to make up the current Constitution into one draft Constitution would seem to me to be a good start. At least it would generate a lively debate on what the constitution should, and should not contain.
Citizen engagement, information, and consent seem to me to be important democratic values in themselves, and the process of defining what the constitution should be is almost as important as the outcome of those deliberations. It can be argued that keeping the constitution unwritten and somewhat mysterious is the elite's way of keeping the process of defining it to themselves and preventing popular engagement.
There is then a price to pay in public alienation and ignorance.
At the moment referenda are supposed to be purely advisory in the UK constitution and yet the last one is now held by Brexiteers to be inviolable holy writ. Until the latter half of the twentieth century the concept of a referendum was widely seen in British politics as "unconstitutional" and an "alien device". Only three UK wide referenda have ever been held on EU membership (1975, 2016) and on the voting system (2011). Referenda on devolution have been held in Scotland (1979, 1997) and Wales (1979, 1997, 2011), on Independence for Scotland (2014), and on a United Ireland (1973 - boycotted by nationalists) and the Good Friday Agreement (1998).
As a general rule referenda work best when they are on a precisely defined specific issue and where the implications have been clearly laid out in legislation beforehand. Ideally an independent judicial referendum commission should also be appointed to rule on issues of interpretation and likely implications. When the establishment wants something done, they often just go ahead and do it, by legislation if necessary. Referenda, on the other hand, have often been used as a device to ward off pressure for changes they would rather not see, or to deal with divisive political issues which threaten party unity or electability.
Greater clarity on when, for what purpose, to what effect, and how referenda are to be organised in the future should be included in any constitutional reform to prevent the concept of popular democracy falling into disrepute. In particular, far greater resources need to be set aside for impartial public information campaigns. That said, the role of referenda in promoting public awareness, engagement, and greater social cohesion should not be underestimated. Perhaps a second referendum on Brexit, based on very specific proposals for remaining in or leaving the EU is the only way to begin to heal the rift it has caused in the UK body politic.
3. Appointment of Prime Minister
In most democracies, the head of government is either directly elected by the people (most Presidents) or by parliament (Prime Ministers). I was shocked to discover that in the UK neither was required. Boris Johnson was elected leader of the Conservative party by less than 100,000 members and then Appointed PM by the Queen without having to win a vote of confidence or be elected by the House of Commons first. The folly of this arrangement has been amply demonstrated since - he has yet to win a vote in the House of Commons and is flapping around proclaiming policies he has no hope of seeing implemented. No one - least of all his counterparts on the European Council - can take him seriously as a result and the UK is left without an effective government.
4. Powers of the Prime Minister
That said, the powers of the UK Prime Mister are awesome, bordering on the dictatorial, despite the constitutional fiction that he serves at Her Majesty's Pleasure. He can prorogue parliament for long periods without its consent (subject of current Supreme Court challenge), he can remain in office for up to 14 days despite losing a vote of confidence in the Commons, he can set the date of a general election without Parliamentary approval, and there seems to be no set limit as to how far in the future that date might be.
It is also not clear how a change of government can occur if he refuses to "do the gentlemanly thing" and resign if he loses a vote of confidence but refuses to advise the Queen to appoint someone else, as she appears bound to act on the "advice of her Prime Minister". As the Conservative Party has neglected to elect a deputy leader, it isn't even clear who he might advise her to appoint, if he is determined to refuse that role to the Leader of Her Majesty's Opposition.
So we could be left with the extreme situation where an unscrupulous PM remains in Office, despite having lost a vote of no confidence, refuses to make way, and instead schedules a general election for some date long into the future once 14 days have elapsed. It is not even clear whether the 14 day period, specified in the Fixed Term Parliament Act, refers to calender days or Parliamentary sitting days, in which case he could further frustrate the succession process by proroguing Parliament for a lengthy period.
The UK political establishment might well guffaw at such a seemingly extreme scenario, saying that would never happen in Great Britain, but it is precisely by exploiting such loopholes that dictators have consolidated their hold on power in the past. When you hear Government Ministers openly speculate about ignoring laws duly passed by Parliament, or inventing all sorts of devices to delay or neutralise their effect, you know you are some way down the road to dictatorial rule even though the Queen is in her palace and many of the other ceremonial niceties of democracy are being observed.
5. Free Speech
The fact that much of the UK media has remained schtum or even supportive while these "constitutional outrages" are being perpetrated underlines the fact that free speech has become a myth in an era where most of the media are owned and controlled by a very few oligarchs and shadowy corporate entities with very clear political agendas and interests of their own.
A constitutional requirement or law which limits any one owner or connected set of legal entities to a 5% stake in only one newspaper, TV, radio or online publication is an absolute necessity if a very few voices are not to drown out all others. Citizens are supposed to be equal before the law and have equal rights to have their opinions heard, and yet a very few, very rich people, often tax resident abroad, are allowed almost monopoly control of public goods such as radio frequency channels, TV channels, and online content distribution channels. It has to stop.
6. Abolition of the House of Lords
Any constitutional convention has to review the efficacy of existing institutions in upholding democratic norms and values. The House of Lords has proved itself to be utterly useless in the current crisis. Theresa May's recent resignation honours list has included the usual coterie of party hacks, personal friends, political fixers, nefarious media operatives and donors to the Conservative Party with a few worthy people thrown in to lend an air of respectability to the whole exercise. It is little more than an organised bribery scam perpetuating a class system based on snobbery and privilege. It is beyond reform. Abolish it.
7. The Monarchy
Arguably the same point can be made about the Monarchy. The Pomp and ritual surrounding all things Royal seems to be in inverse proportion to the actual powers the Queen wields. You might say that is for the best given that she is unelected, but the UK needs a functioning Head of State to resolve constitutional disputes in a crisis. The recent resolution of the governmental crisis in Italy is a good case in point where an elected President with significant powers was able to step in and help resolve matters without recourse to another early election.
Democracy is not about having an election every time elected politicians fail to do their job. The people elect politicians to run the country for 4 or 5 year periods and it should be a very exceptional event or circumstance when an election has to be called outside of that cycle. The system simply isn't working properly if every crisis is no more than an opportunity for one side or other to seek to use it for electoral advantage. The system should be designed to solve problems not exacerbate them. What problems did the 2017 UK election solve?
So simply relying on "gentlemen being gentlemen" or "Ladies being Ladies"; on traditional values of honourable behaviour, precedent, and convention is no longer an option. Give the Queen a job to do, or make her redundant. A bit of pageantry, pomp, and ceremony may be no harm, particularly for the fashion, film and tourist industries, but it can do great damage if it disguises a hole at the very centre of UK life.
It is increasingly clear that class, regional, national, generational, and economic inequalities are tearing apart the fabric of UK society and that the Queen, as the embodiment of property, privilege and entitlement is not well placed to heal these divides. Many may wish to cling onto her as a symbol of the UK as it once was, but nostalgia, obsequiousness, and deference to traditional authority are not going to be of much help as the UK faces into the challenges of the future, Brexit or no Brexit.