One of the things that tend to give away the fact that I didn’t grow up in the UK political culture is my habit of sniggering every time someone mentions the UK constitution. One of my earliest political memories is the Bulgarian Grand National Assembly being convened to create a new constitution after 45 years of communist rule. I was nine years old at the time – it was a formative experience as far as my political consciousness is concerned. And so, whenever someone mentions the UK constitution – that messy collection of laws, precedents and customs which seems to govern the UK – I am bound to exclaim “What constitution!?”
A constitution is that part of a country’s legislation which establishes how the state works, where the limits of the state are, what rights and duties the state and the citizen have with respect to each other, and often what core values the state is based on. Most countries (bar three) have what we call codified constitutions – i.e. constitutions which are explicitly set out as such generally in a single document. Most constitutions, or at least parts of them, are entrenched – i.e. they require a different, more onerous procedure before they can be changed. A constitution is pretty fundamental to a state – it is to be treated with respect.
Constitutions tend to be created after disruptive change: revolutions (peaceful or otherwise), wars, declarations of independence. Those are generally the times when states take a step back to reflect on their values, rights, duties, institutions and structures. They are also the times when people are more willing to set aside political differences in the name of principle. Not that constitutions aren’t huge exercises in compromise, but they tend to be a different kind of compromise to the normal day-to-day horse-trading of politics.
Thinking about the history of the UK, the state has been fundamentally constitutionally the same since 1066. There has been incremental change (expansion out of England, Empire and decline thereof, the very gradual waning of the power of the monarchy and rise of democracy), but the UK has not really seen disruptive change in nearly 1000 years. The closest this country has had to it was the English Civil War, and the disruptive part of the change initiated by that didn’t last.
And so the UK is stuck with a messy collection of laws, precedents and customs instead of a formally set out single legal document which enjoys special status among the country’s laws. This has all sorts of interesting side effects.
Constitutional change in the UK is difficult to achieve – not because, like in other countries, the constitution is entrenched and changing it requires special procedures, but precisely because it isn’t. Therefore constitutional reform becomes part of the same kind of day-to-day political horse-trading as everything else. Equally, this also makes it easy to play fast and loose with the constitution.
Changes to the UK constitution are often incomplete, inconsistent with other parts of the constitution, unclear. The West Lothian Question is a classic example of that. In any other country, when power was devolved in one part of the country, a full constitutional review would have been required to ensure the changes were compatible. As it is, devolution of some powers to national legislatures in Scotland, Wales and Northern Ireland do leave a number of open questions about the exact constitutional make-up of the United Kingdom. This is not just about why England has no national Parliament; it also covers issues such the huge variations between what powers are devolved to the different national legislatures, as well as more practical matters.
And then we get to the downright paradoxical. Take, for instance, the much talked about introduction of fixed-term Parliaments and the associated 55% rule. Because the UK constitution is not entrenched, even should the 55% rule pass, it would only take a simple majority to repeal it even a few months down the line. This is no way to implement constitutional reform.
So if Nick Clegg really is serious about initiating the biggest shake-up of UK democracy since 1832 – or ever for that matter – here’s where to start: create a constitution. Create one single formal document which sets out the values and duties of the state, the rights of individuals, and defines how the structures and institutions of the state work. Ensure that that constitution is entrenched: require special procedures and a qualified majority to change it. Ensure it is coherent, consistent, complete.
It would not be an easy task – it never is. Arguably it shouldn’t be undertaken by this or any other ordinary Parliament. Convene a special body – elected, ideally by PR – with the sole and explicit purpose of drafting a constitution to be adopted through a referendum. Ensure that the constitution is taken seriously and treated with the respect it deserves. That would be a true shake-up of democracy.
Just a thought.