Let's have it in writing
In the face of planned government reforms, the need for a written constitution is now imperative
Sunday February 15, 2004
Constitutional reform is the least sexed-up topic in the public realm. Britain's uncodified laws do not grab the public's imagination in the same way that health does, or education, or who pushed Jason off the roof in Footballers' Wives. Now, suddenly, our sagging constitution matters.
In the Government's latest nip-and- tuck operation, the Law Lords are to be replaced by a supreme court. A judicial appointments commission will be set up, and the office of Lord Chancellor abolished. Plans going through Parliament were last week excoriated, in whole or part, by the Constitutional Affairs Committee, some peers and the Lord Chief Justice. Too fast, too drastic, too unbudgeted. You can see why they could all be right.
The package was conjured out of the ether of last year's botched Cabinet reshuffle by a Prime Minister often accused of being a cowboy reformer. If the dinosaur bits of the constitution are ever exterminated, the verdict will be death by incompetence. But this time, Mr Blair is right. Why would citizens of a modern democracy fight to retain men in tights, or strive, against his wish, to keep Lord Falconer's scalp gummed to a full-bottomed wig?
His 1,400-year-old office is an anachronism involving multitasking that straddles boundaries between the Government, Parliament and the judiciary. The judges blessed this constitutional affront partly because they liked having a defender such as Falconer's predecessor, Derry Irvine, fighting their corner in a hostile Cabinet. Though they would never accuse themselves of double standards, they sacrificed principle to self-protection for too long. Government reforms are, by contrast, a shiny model of separation of powers between the three arms of government. The judiciary hopes, with fingers crossed, that its independence will be safe once enshrined in statute. So far, so good, except that something weird is happening. Just as the Government is poised to make judges freer and more representative than some of them thought strictly desirable, it is systematically savaging the rule of law.
Mr Blair is arguing for a lower burden of proof in organised crime cases. David Blunkett suggests secret or pre-emptive trials for some suspected terrorists, presumably on the grounds that Ministers, like the half-dead mystics in the science fiction film, Minority Report , will be able to foretell offences before they are committed. But the overshadowing worry is Clause 11 of the Asylum and Immigration Bill, due to move to report stage in the Commons two weeks from now.
Clause 11, a battering ram against human rights, stipulates that failed asylum-seekers will lose all possibility of appeal to the courts. Public-law specialists at Matrix Chambers are calling it 'the most draconian ouster [exclusion] clause ever seen in Parliamentary legislative practice'. It is not even as if there is a crisis. Of the 80,000 asylum-seekers who arrive every year, 1,500 a month are being sent back. As Mr Blair promised, applications have been halved. The problem is that one in five initial verdicts is flawed or wrong.
Behinf the statistics lie heartbreaking stories. A 15-year-old Chinese boy who said his parents had both been executed was turned down because the Home Office noted a slight discrepancy in the date he was forced to leave school and 'as such, finds your account lacking in conviction'. A Congolese woman who described being imprisoned in a 'shooting room' slippery with blood and littered with the dead got a rejection letter saying: 'You have stated you were not physically but morally tortured. The Secretary of State does not consider this to amount to persecution.'
Lord Denning once claimed that, if tri bunals were removed from any check by the courts, 'the rule of law would be at an end'. On that analysis, we are surveying the demise of one of the two basic principles of the British constitution. The other is the supremacy of Parliament, which, given the vast Government majority, is not looking too good either. So what's left of our threadbare constitution? The audit includes the Magna Carta, the Act of Settlement of 1701 and the Greater London Authority Act 1999. The last, in common with most devolution legislation is, according to constitutional expert Lord Lester, 'unfit for human use'.
If Iraq proposed such ragbag rules of governance, the developed West would be appalled. Britain is alone, apart from Israel and New Zealand, in having no written constitution and unique in relying on a 'historic' combination of arcane flummery and sloppily drafted nonsense. There has been some progress. Mr Blunkett, as Home Secretary, is no longer obliged to attend royal births, and monarchs have abandoned George III's football chairman practice of hiring and firing seven Prime Ministers in a decade.
Such shifts are not enough. Leading judges, hardly Che Guevaras in ermine, believe we are at, or near, a revolution. Britain needs a written constitution to stave off government diktat. Defining politicians' limits would remove the necessity for endless expensive review by unelected judges. It would also reshape the modern state.
The monarch could go or stay, depending on citizens' preference. If retained, he or she should be stripped of royal prerogative powers, bundled off to the dignified part of the constitution and compelled to pay reasonable taxes and stop confusing personal possessions with what belongs to the taxpayer. There should no longer be a state religion.
Anthony Lester, a longtime campaigner for a written constitution, argues that such a charter would be a rallying point for multicultural Britain. New citizens, offered the core values of a secular, democratic society, would sign up to a clear agreement for reciprocal commitment.
The question is who might get to play Thomas Jefferson, a founding father of the American constitution. Obviously it will not be Mr Blair. For him, the issue 'is not up for discussion'. The Lib Dems are keen on a commission to thrash out a formal constitution for a quasi-federal UK, and so are some Tory peers. If Michael Howard wants a big idea, this is it.
Pieces of vellum are obviously not a cure-all. 'We the people', the power-brokers of America, are litigious death penalty advocates with a President chosen by fewer than half of them. France may espouse liberty, equality and brotherhood, but the hijab ban for Muslim schoolgirls bears the fusty odour of the ancien régime. Good constitutions do not guarantee perfect societies, but bad ones stifle justice and sour national life.
The Government's reform package is fine, as far as it goes. The danger is that other measures, ordained by fear of terrorist attack or of fractious voters, are suffocating freedom. The politicians' war against judges has already nibbled away at trial by jury and defendants' rights. Clause 11 of the Asylum Bill will bring the tussle over the rule of law screaming into the open, if the Government does not back down. This time, almost certainly, it will blink.