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A preview of tomorrow's lesson:

Reclaiming Britain’s constitution

Requires not only good ideas, but also democratic consent
expressed through referendums

To draw up a scheme for constitutional reform little more is needed than paper, pen and a penchant for building castles in the air. Back on earth, gaining approval for changes to the basic rules and institutions of an established government is more difficult. In Britain, there is an additional obstacle. Uniquely among the world’s democracies, Britain has no written constitution. Its government operates by tradition, convention and – more often than those in power like to admit – improvisation. There is no agreed mechanism for changing the constitution, or even any agreement about what the constitution actually contains.
For many of Britain’s keenest reformers this represents not an obstacle, but an opportunity. Traditionalists may praise the supposed “flexibility” of Britain’s unwritten constitution as one of its glories or, paradoxically, as a reason not to change it at all. Many modernisers want to turn that argument on its head, and to use the constitution’s vaunted flexibility as a convenient tool for a stem-to-stern overhaul of the ship of state.
Britain’s governing arrangements are certainly in need of repair. [...] There are plenty of good reasons for change and good ideas for what to introduce – a bill of rights; a fairer voting system; more active parliamentary scrutiny of the executive; and devolution of power to Britain’s regions. But reformers will be making a grave mistake if, to bring about most of these changes, they rely solely on the usual methods of simple majorities in the House of Commons or bargains between political parties.

The voter is sovereign
All the reforms now being considered are directed at a single goal: dispersing power. Doing this by using the powers of an already overmighty executive would not only violate the spirit of such reforms, but also subvert their long-term effect. What can be done by government whips or a cabal of politicians can just as easily be undone by their successors. To truly change the way Britain is governed, reformers must reach beyond the confines of Westminster, make their case to the British people, and win their consent. The best way to do this is to submit all important constitutional changes to referendums.
Traditionalists view referendums as a threat to the sovereignty of Parliament, which they consider the bulwark of British government. Yet parliamentary sovereignty is a busted flush. Over the past 20 years various governments have ceded important powers to the European Union, making a nonsense of claims that in Britain Parliament, and only Parliament, is sovereign. Worse, the verbal jousting in the Commons has merely disguised the reality: the gradual concentration of power in the hands of the cabinet. The institutional checks and balances so cherished in other democracies have withered.
In any democracy today the true sovereign power must lie with the electorate. Voters may wish to cede power to their representatives, but not over matters that affect the relationship between those very representatives and the voters – ie, the constitution. Yet with the exceptions of the 1975 referendum on Britain’s membership of the European Community – not held until three years after Britain joined – and the referendums in 1979 which rejected Scottish and Welsh devolution, the British people have not been consulted on any of the significant constitutional changes which have so shaped their nation’s history. Far from being a challenge to the legitimacy of the British state, such consultation is long overdue. It is a scandal that the need for it has been brushed aside for so long.
Most written constitutions set out complicated procedures or require extra-large legislative majorities for their amendment. These hurdles demand, in effect, widespread discussion and the support of most voters. Britain, without a written constitution, has no formal way to consult the voters on constitutional change. Referendums can provide the means to do this, and to “entrench“ any change. It is unlikely that any ruling party, however confident, could reverse a referendum-backed reform without recourse to yet another referendum.
Many reformers will be even more dismayed than traditionalists at the prospect of holding a series of complex referendums to bring about constitutional change. Yet their dismay concedes the moral high ground: if their interest is the dispersal of power rather than the seizing of it, then the more considered and more durable the change, the better. Others will see this as a slippery slope towards government by ballot box. How far towards direct democracy Britain should travel is a genuine topic for debate – but a different one. There is no democratic case against submitting changes in the rules of government itself to the judgment of the electorate.
Other advocates of reform will fear the risk of failure which referendums entail. This is one reason why the Labour Party has promised a referendum on electoral reform, about which the party’s leaders are not enthusiastic, but refused one on Scottish devolution, to which the party is firmly pledged. This is a partisan fudge. General elections and opinion polls do not give a mandate for fundamental constitutional change to any party. Only referendums can do that.
For all the faults of its current system of government, Britain is not facing crisis or collapse. Without such a threat, the adoption of a completely new written constitution, however attractive in theory, is not possible, and would not be wise. And yet, through the judicious use of referendums, Britain could still achieve the chief benefit of a written constitution: explicit rules of government available to the entire electorate and changed only with their approval. Moreover, the slower pace of change which referendums may require should be welcomed. The need for change is compelling, but each specific reform should be carefully debated and widely supported. Even the innovation which this newspaper views as the first priority, a bill of rights – a priority because it would increase the judiciary’s role as a check on the executive – should be submitted to a referendum. Reformers must aspire not merely to repair the mechanics of government, but to help the British people reclaim the constitution under which they are governed.


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