Best left unsaid

David Beetham, Stuart Weir and Stuart Wilks-Heeg write down our unwritten and undemocratic constitution
January 2010

Subscribers to this edition of Red Pepper will find as an insert the Democratic Audit pamphlet The Unspoken Constitution. Many attempts have been made in recent years to draft a written constitution for the UK - by John MacDonald QC, Tony Benn and the Institute for Public Policy Research, to name but three - setting out the respective powers that government, parliament and the courts should have, and the rights that should be guaranteed to citizens. And the case for a codification of Britain's system of government has most recently been made by Vernon Bogdanor, arguably the leading contemporary academic authority on the British constitution.

However, the prospect of achieving a written constitution looks more remote than ever, given the way that the major parties together block crucial constitutional issues and prevent them reaching the political agenda. It seems we will continue to be one of only two countries in the world without one.

This is where our pamphlet comes in. We thought it was time to write down or 'codify' not what should happen to make our system democratic, but what happens in practice; and to do so from the standpoint of the governing elite that exercises power on our behalf but would prefer that its operation be mystified as much as possible. They recognise how important it is that such a document should never see the light of day.

The constitution begins by extolling the virtues of being unwritten:

It is a collection of laws, fictions, powers left over from the old monarchy and powers that we make up as we go along. It allows us to decide what governments can do; and best of all, only we have the power to change it ... The great advantage of this flexibility is that once we have hit on a new way of behaving, it becomes part of the constitution. And we can modernise easily. So we have moved on from old-fashioned cabinet government to sofa government by the prime minister with trusted allies and special advisors. Presidential, yes, but faster and more efficient. This excellent state of affairs allows us to exercise executive power more or less as we please while the whole world admires us as a democracy.

There then follows a list of the 'unspoken articles' of what Jack Straw has termed our 'executive democracy'. We understand that Sir Humphrey and his colleagues have chuckled particularly loudly at the following articles:

Government, like every subject, shall be free to do whatever is not unlawful. The government shall decide what is unlawful.

The government shall have the power to enact ministerial edicts, known as statutory instruments or Orders in Council, this secondary legislation being in effect law-making that can almost wholly escape parliamentary scrutiny and debate.

In the event of controversy over government actions, the government may have recourse to carefully chosen judges or former civil servants to hold an inquiry that has due respect for government's need for support and discretion. The government shall set the terms of reference for any inquiry, have powers to suspend it or restrict public access to it, and may censor an inquiry report to prevent any information emerging which we say may harm state economic and security interests.

Civil servants ... shall be allowed to enhance generous pensions by taking advantage of their departmental experience and contacts through lucrative appointments in relevant private companies.

We hope you will read the whole document with similar amusement. But we expect that it will also make you angry that this is the way we are governed in the 21st century.

We like to think that it makes an irresistible case for a written constitution, rooted in sound democratic principles and in popular sovereignty; but we would urge proponents of the status quo to come forward and make their case for its defence, on democratic, or indeed any other, grounds.

Of course, debate is not enough in itself, and particularly not if it is limited to converts to the cause. Some matters are simply too urgent to be left until the glorious day when our written constitution is unveiled. At the same time, voters need to be offered more than a Hobson's choice at the 2010 election between political parties making rival claims about which areas of government spending they will cut.

The issues of how power is exercised, by whom and in whose interests, must be forced to the fore of the election debate. Over the next six months, the Power 2010 initiative will seek to bring these issues back onto the political agenda. It is a good job somebody is - the party conference season confirmed that it would be foolhardy to leave it to our political masters.

Download a copy of the pamphlet here





David Beetham is associate director, Democratic Audit


 

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