Saturday 31 August 2019

Constitution Hill

I think to a foreigner it would be almost impossible to explain the current constitutional situation in the UK, as it makes no sense.

A referendum was fought on the principle of 'making our Parliament sovereign again'. But now the people who supported that idea have suspended the Parliament. But how can a sovereign parliament be suspended? If it can be suspended against its majority will (which has not been tested), then it can't truly be said to be sovereign.

The Queen approved the suspension. Is the Queen sovereign? In theory, yes, she does have that title, but if she always follows the convention of accepting the advice of the Prime Minister, which she does, then not in practice. In practice, then, he is the Sovereign, but he was only elected by 180,000 Conservative Party members. The EU requires member states to be governed democratically. Is this a democratic set up?

The suspension is being challenged legally, but does a court have any power to rule that the Sovereign has acted unconstitutionally? Does the supposedly sovereign Parliament have the power to limit or change the powers of the actual Sovereign?

Whatever anyone says, having no written constitution for a country is a problem. Every silly little club and charity in the country has to have a written constitution. There are good reasons for this. Instead the country itself has a mush and a mess of historical precedents, laws and practices, and has always tried to 'get by' on this.

Giving the UK a written constitution seemed to be a popular idea in the last century (does anyone remember Charter 88?). I remember the Independent newspaper advocating for it. But it's never been regarded as a politically important subject, just something for geeks to get excited about.

It's different elsewhere. The constitution of the Irish Republic is printed in a little book that every schoolchild has. There's no need there to consult some academic on the arcana of historical precedent to decide (or most probably not be able to decide) what the constitution says. Everybody knows.

To me, a clearly written-out constitution has got to be the bedrock of good governance of any corporate body, from a local club to a superpower. Where constitutions are lacking, or bad, or corrupted, we always find bad and corrupted governance.

It's well-known how the Weimar Republic fell from democracy into the dictatorship of the Third Reich. An important element was how the parliament (Reichstag) allowed the written constitution to be changed implicitly, by passing legislation that contradicted it, rather than going through the correct procedure for changing it. The post-war Bundesrepublik constitution went to lengths to make clear that this must not happen again.

This distinction has no meaning in the UK, which lacks a separate body of constitutional law with its own regulations for amendment. Some people regard this as an advantage, pointing to, say, the difficulty the United States has with amending its 18th Century constitution, and the difficulty of interpreting the amendments, such as the controversial, oddly-worded (to us) Second Amendment that buttresses gun rights in the USA. The Trump period has, however, shown us some of the permanent strengths of that constitution, with its separation of powers that limit his capacity to wreak havoc or act as dictator.

The basis of the current UK settlement lies in the facts of the Glorious Revolution of 1688, when the current line of monarchy was installed, in collaboration with Parliament, in exchange for an agreement of limitation of monarchical power, under threat of a foreign army and navy (the Dutch). The metaphysical vagueness of the concept of sovereignty of The-King(Queen)-in-Parliament that resulted is a principle of constitutional order that no-one seems to understand (a bit like the Holy Trinity). But it enshrines a fusion of legislative and executive powers that is in contrast to the separation the American Founding Fathers were so keen to create a century later.

This is now tested to the full with a Prime Minister who does not have a majority in Parliament for his main policy, but who acts as if he does, using prerogative powers deriving from the monarch, who by convention has to agree with him, though her legislative sovereignty lies only in Parliament: a parliament that the Prime Minister can, apparently, stop acting, by prorogation, even though it is not apparent that Parliament has confidence in him.

Even though some of the UK constitution is enshrined in statute law, it's not written down together in any one place where a politician or anyone else can get to understand it. Parliament is regulated by a written-down set of conventions and precedents known as Erskine May, that the Speaker of the Commons interprets, but seems to have the power to change as well. It's all an incredible mess.

I've written a few constitutions in the past, in collaboration with others, and they've been quite successful, continuing to smoothly regulate the activities of organisations ranging from a few up to 3,000 people. I'd be quite happy to help with the one the United Kingdom desperately needs. I await the call from Her Majesty, in hope.