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A new Magna Carta? Critique – Submission to the House of Commons Political and Constitutional Reform Committee

October 10, 2014

By Charles Ashton

Introduction

Does the UK need a codified Constitution?

The current constitutional settlement of the UK is largely based on the principle of Parliamentary Supremacy. This supremacy, I would suggest, was envisioned by our forefathers as being supremacy over the Monarchy in order to prevent a return to the largely absolutist system which existed prior to the Civil Wars of the 17th century.

This situation begs the very real question, “who controls parliament”? Traditionalists would, no doubt, argue that the people control parliament through the mechanism of regular elections. The lie of this is exposed by the current UK Government extending the life of the current Welsh Assembly, by one year, to 2016 on the questionable grounds that Welsh voters would be confused by having to vote in both General and Assembly elections on the same day.

This single act is not only an extremely worrying indication of the intellectual disdain with which our political class views the voting public but also of the ease with which the democratic process of the UK is able to be subverted insofar as not only were the public not consulted in advance, neither was parliament, the Home Secretary simply made an Order and the Welsh people were stripped of their democratic rights, in relation to the Welsh Assembly, for a period of 12 months. That the Welsh Assembly Government colluded in this subversion of democracy merely serves to show that this “fast and loose” attitude to democracy pervades at least two tiers of government in the UK.

Any written Constitution worth having would act to curtail the, currently unlimited, power of government, at all levels, in the UK. I have given, above, one example of how our current settlement, based on Parliamentary Supremacy, is not only open to abuse but has actually been used to abuse the rights of the people. So far, in our history, the UK has been lucky, relative to some countries, in that the principle of supremacy has not been too badly abused over the centuries but I, for one, would not like to take the risk and believe that the UK requires a written and codified Constitution which limits the power of government and sets out the rights and responsibilities of all UK citizens and residents.

If so, which of the three options offers the best way forward?

The Proposed Constitutional Code

The main problem with adopting a Constitutional Code, of the type proposed in the Committee’s Report “A New Magna Carta” is the simple fact that it lacks statutory authority and as such could, potentially, be completely ignored by the government at any given time without any legal redress being available to the people of the United Kingdom.

In this regard a Constitutional Code completely misses the point of a Constitution, which surely is to place limits on the power of government, at all levels, thus allowing the population of a country to maintain control over their country and destiny.

The Proposed Constitutional Consolidation Act

The Constitutional Consolidation Act, as proposed by the Committee’s Report, has a number of flaws, not least of which is its sheer length which, at 371 pages, almost certainly protects it from the danger of ever actually being read by anyone other than the most dedicated of political anoraks.

As well as the aforementioned issue of length there is the issue of the turgid and technocratic language in which it is written which, I would suggest, may well protect it from ever being understood by any layman unfortunate enough to find themselves reading the thing.

The very idea that a realistically workable Constitutional Settlement could be achieved simply by stapling together any number of existing statutes and government manuals, which virtually no one outside of parliament is even aware exist, is at best delusional and at worst a deliberate effort to prevent the British people from ever being able to limit the power of the state.

Another serious flaw in the concept of a Constitutional Consolidation Act is the very simple fact that it is merely an Act of Parliament and as such is able to be modified, or even repealed, by an equally simple Act of Parliament at any time in the future thus lacking one of the crucial elements of a true Constitution, the principle that the Legislature and Government, at all levels, are bound by it.

The Proposed Written Constitution

A fully fledged, written Constitution is, by definition, be the only rational option for a lasting Constitutional Settlement in the United Kingdom.

Having said that, the document proposed by the Committee’s Report suffers from the same fatal flaws, of length, 109 pages, and turgid, technocratic language, as the proposed Constitutional Consolidation Act which would very probably protect it too from ever being read and understood by the average person in the street. Such a

document gives the impression of an attempt by the political class to muddy the waters, as it were, with regard to the powers of the state.

What needs to be included in/excluded from your favoured option, if you have one?

A written Constitution

The most enduring and arguably most successful, written Constitution on the planet is 20 pages long and includes 26 Amendments since its creation in 1787. I refer, of course, to the Constitution of the United States of America.

The key, I believe, to the enduring success of this document is its pure simplicity which allows every US citizen to understand not only how their government is structured and works at all levels but also the limitations placed on the state, by the Constitution, regarding individual rights and freedoms. It is this simplicity that allows any 10 year old American child to be able to name and explain, at the very least, the first 10 amendments or Bill of Rights, to the Constitution with confidence and the knowledge that those rights cannot be removed or changed without the expressed consent of the American people.

Any fully fledged Constitution must, by definition, be above the government and only able to be amended or abandoned by the expressed will of the people. This being the case it must naturally follow that it must be created by the people rather than by government thus the first thing I would exclude from any written Constitution for the UK is the political class, by which I mean holders of elected office at any level of government and Civil Servants from any level of government, from any involvement in its development.

For a written Constitution for the UK to be an enduring success it must not only enshrine rights and freedoms but also resolve all constitutional questions, such as devolution/Federalisation, powers/limits of the state, elected/appointed House of Lords, directly elected/current system PM/DPM, in full and final settlement thereby ending the constant drip drip drip of constitutional debate the UK has been subjected to since devolution in Wales, Scotland and Northern Ireland.

Devolution/Federalisation

There are, I would submit, two great flaws in the way devolution has been implemented in the UK. The first, and most glaring, is simply that England, and thus the vast majority of the UK population, have been completely left out of the process and secondly there is no consistency to which powers are devolved and which remain with Westminster leading to confusion as to what different levels of government are responsible for.

Commonly known as the Westlothian question I do not feel the need to explain the issues involved in the question of the lack of English devolution however there are a number of options available to resolve this question.

Firstly, the current devolution settlements for Wales, Scotland and Northern Ireland could be unpicked and replaced with a system that has MP’s from the 4 Home Nations sitting in their respective Assemblies for 3 weeks of the month, dealing with devolved matters, and spending 1 week of the month sitting as a UK parliament dealing with issues affecting the whole country. Due to the requirement to unpick the current devolution settlements this option would, in all likelihood, be politically untenable due largely to the perceived reversal of the current devolution settlements. It would also raise questions as to the standing, in the UK parliament, of the members who hold the post of First Minister in the devolved assemblies and their potential subordination, at the national level, to someone who is junior to them at the devolved level. This second issue could of course be avoided by way of a directly elected PM who, as the Executive arm of government, would be wholly separate from the legislature but this would then raise issues of Executive succession should the PM be unable to continue in office for any reason. On the whole this would potentially be an overly complex and constitutionally difficult option despite its initial appearance of simplicity.

The second option, which has recently come to prominence, is to devolve powers to larger cities around the UK. This option contains, without exception, all the flaws of the current devolution settlement in that it fails to deliver devolved power to vast numbers of the English population who live outside the main centres and, as yet, there does not appear to be any agreement that each City would have the same powers or what those powers would be.

Option 3 would be to create a devolved English parliament, completely separate from Westminster, to administer England only affairs. Whilst this would appear, on the face of it, the simplest and most workable solution, being that it retains the integrity of the 4 Home Nations as distinct geographical entities, such a settlement would not be without its problems. For example, what may be right for the people of Cornwall may not be right or desirable for the people of Yorkshire. The other extreme of this argument, that each county be cast adrift on the sea of devolution, is, of course, wrought with even greater problems. Whilst there are some counties which, due to their size, population and resources, could no doubt quite happily thrive under devolved administrations there are others who would equally struggle.

This brings us to option 4, a Federal settlement based loosely, as a starting point to be refined as far as possible by negotiation, on the pre-Norman Kingdoms of England with Wales, Scotland & Northern Ireland making up the other 3 Federal Regions of the UK to a total of 10 Federal Regions. I would suggest retaining Westminster as the seat of a much reduced Federal government simply because of the location of the Departments of State.

Powers/Limits of the State

Obviously there would potentially be a fair amount of negotiation over what powers would be devolved and what powers would be retained by the Federal government and as such I would suggest a good place to begin such negotiations would be to look to what powers the Scottish Parliament holds.1 The only pre-condition required for this part of a written Constitution is that all regions making up the Federal UK must hold the same powers.

Whilst it would be for the individual regions to decide the makeup of their own assemblies, within UK wide Constitutional minimums, it would be for the regions, via a Constitution, to also set the number of MPs and frequency of Federal elections. I would suggest a maximum of 250 Lower House MPs elected, if I may borrow from the US Constitution, every 2 years. Roughly 1 MP per 245,000 head of population would deliver just under 250 MPs based on the current UK population.

Elected/Appointed House of Lords

The House of Lords is a British institution with a long and illustrious history. It was the first of our national institutions to place limits on the power of the Monarchy, with the Magna Carta in 1215, and as such is arguably the Grandfather of western democracy. However, sadly, I feel its time has passed and it must, as a legislative chamber, now be consigned to the mists of history.

Over the last century, starting with the Parliament Act 1911, successive governments have limited the power of the Lords, created Life Peerages, removed all but a handful of Hereditary Peers from the House and attempted to create an elected Upper House. This blind tinkering has created an Upper House rammed to the gunwales with retired MPs, party hacks, political donors and other assorted fellow travellers whose only rational for being there is to stack the chamber in their party’s favour.

The LibDems attempted to create an elected Upper House with 300 members, elected for 15 years each with no right of re-election and thus no electoral accountability. To say that this idea was ill-conceived is to stretch my capacity for kindness to breaking point.

There is no doubt that a Federal UK, with a written Constitution, requires an elected Upper House however its predominately revising role means that its numbers only need be small, 10 Senators from each region of the UK with 2 from the Federal Capitol making a total of 102, elected for 6 years with 1/3 up for re-election every 2 years at the same time as MP elections.

Directly elected/current system PM/DPM

A major flaw in the way the UK central government functions is that whilst in theory the Executive and the Legislature are separate, given that the Monarch theoretically holds executive power, in practice it is the PM that holds this power. This is an important flaw in our system as the PM is also the individual who controls the legislature resulting in a complete absence of the separation of powers, the theory of which forms the basis of our system of government.

Being that it is unlikely that handing practical executive power back to the Monarch would ever be politically viable the only option left, to ensure separation of powers, is a directly elected PM/DPM, standing on a ticket in the same way as POTUS/VPOTUS, thus ensuring that the legislature is free to hold executive power to account.

Foreign Treaties

Any UK written Constitution must make it illegal for any UK government to make any treaty with a foreign power, or powers, having the effect of transferring any powers overs the laws, government, judiciary or people of the UK to any foreign power or supranational body or organisation. Any existing laws having that effect must be, by definition, repealed by the creation of a UK written Constitution.

Written by the people

In any written Constitution it must be implicit that it is a full and final Constitutional Settlement, amendable only with great difficulty and only at the behest of the people. It must be a document easily read and understood by all those subject to its provisions and assured rights under its protection. In view of this it is necessary to exclude any elected, or previously elected, politician from the process of forming a written UK Constitution thereby ensuring that the protections, rights and limits on state power act as a protection for the people and not a mechanism for controlling them.

 

Charlie would be very interested to hear your thoughts on this piece so please post them below – YDM

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