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In the final pages of The Rights of Man, Tom Paine describes his attempts to persuade the Whig politician Edmund Burke ‘to propose a national convention, to be fairly elected for the purpose of taking the state of the nation into account’. But Paine’s efforts failed: ‘I found, that however strongly the parliamentary current was then setting against the party he acted with, their policy was to keep everything within that field of corruption, and trust to accidents.’
Since the 1790s Burke’s successors have remained fixated on securing a majority in parliament. Major changes – the move to universal suffrage, Irish independence, the social democratic settlement of 1945 – took place through legislation or executive fiat. More recently, Margaret Thatcher almost casually restored the prerogatives of property and broke local government.
The power that the unreformed constitution hands to a government with a secure majority has made it irresistible to generations of politicians. Today they try to limits discussion of the ‘constitution’ to voting methods, or House of Lords reform. And so they portray constitutionalism as a marginal concern. It is something for Liberal Democrats to fret about while the Conservatives and Labour tussle over control of parliament. It is said that Thatcher aborted plans to celebrate the tercentenary of the Glorious Revolution of 1688 when she realised that the very mention of the Bill of Rights would raise awkward questions about the fundamentals of the British state. The Paine-ite conception of the constitution as a document legible by all and binding on the state must be suppressed at all costs.
This long silence about the constitution appears to be at an end. A number of factors have contributed to this. The financial crisis and the bankers’ bailout vividly illustrated the political content of economic privilege. Far from being less important than the ‘bread and butter’ issues of everyday politics, the structure of the state determined who got exactly how much bread and butter, and from whom. The annual bonus round at banks saved by the public remains an eye-catching celebration of the Ancestral Constitution and interests it serves.
Meanwhile a series of scandals in England – involving the media and the police as well as local and national government and the private sector – has shaken many people out of the comfortable sense that, while our constitution might be indefensible in theory, it works pretty well in practice. Perhaps most importantly, the independence referendum in Scotland prompted a wide-ranging discussion about the new state that would be created after a Yes vote.
It is against this background that Jeremy Corbyn has said that he wants to organise a constitutional convention. Although he and the Labour left appear to want to limit this to the usual objects of constitutional debate – the voting system, House of Lords reform, again – a convention is an opportunity to bring the constitution into play as a site of radical contestation. If we are successful we can turn widespread disenchantment with our current arrangements into support for a more democratic and egalitarian alternative.
A formalised constitution sets out explicitly the rules that govern the government as well as the rights and duties of citizenship. Of course we could decide at the outset that we don’t want to have such a constitution. At the moment political authority derives from the crown and is exercised through parliament. An executive that controls a majority in the House of Commons can do more or less as it likes. There are some vaguely defined ‘conventions’ that are supposed to limit the government’s actions but the only formal check is the crown itself. This, then, is the first question for a convention: do we want to create a state whose powers derive ultimately from the citizen body or not? And we have to find a convincing answer if we are serious about using the convention process to advance a radical agenda.
Conservatives of all kinds will want to conflate abolition of the monarchy with the end of the informal, uncodified constitution. But the connection is not necessary, and the first is not a condition of the second. A constitution that bases itself on a sovereign citizen body could retain a crowned head of state, but this head of state would owe their status to a popular invitation. It might be that the current monarch would refuse such an invitation. That is a matter for them. Machiavelli advises the rest of us that those who want to establish ‘a new and free way of life’ should retain ‘as much of the ancient order as possible’.
The debate about the origins of political authority has immediate and pressing real-world implications. Britain’s offshore tax avoidance and evasion sector organises itself around a network of unreformed jurisdictions – the Crown Dependencies, the British Overseas Territories and, at the centre, the Corporation of the City of London. As Peter Coleman once remarked, ‘Beyond a certain point, modern tax avoidance is actually legislation avoidance.’ If we want to govern ourselves, this offshore system will have to be dismantled. Following Machiavelli, popular sovereignty and onshore authority can be made into a single cause by extending the ancient liberties of the City of London’s freemen to all the inhabitants of these islands.
Similarly, the relationship between the British state and the financial sector has developed piecemeal over time. Its exact nature was a mystery to most people before the 2007-8 crisis. Corbyn himself has broken the taboo in elite circles and spoken about using the state’s credit-creating powers to fund social investment. A codified constitution is a chance to set out explicitly how the banking system and the state interact, and how both risk and decision-making power are to be distributed. At the moment the private banks take most of the decisions and all the upside while the citizens are on hand to absorb any losses sufficiently large to endanger the monetary system as a whole. Between crises we can only watch while the bankers blow lucrative bubbles in non-productive assets.If we want to end the supremacy of private property and establish the people as the origin of legitimate authority, a convention is a chance to make the case
A decision to make the citizenry the origin of political authority also brings into focus the status of the corporate form as it has developed over the last two centuries. The limited liability company is a creature of legislation. A constitution could establish once and for all that its privileges come with certain responsibilities, including a comprehensive duty of candour on the part of directors, and the right of employees to information and a degree of control over their working lives.
The last time the British considered the basis of civil government they ended up creating the United States of America. Broadcast media, let alone digital communications, didn’t exist. It won’t do to warble on about a free press, given what we now know about the corrupting influence of money on public speech. The only effective remedy for Murdocracy is much greater popular participation in the media, underpinned by defined communicative rights in a written constitution. New technology offers us the means to make the BBC a forum for a media system adequate to the needs of a democracy. Needless to say this possibility isn’t likely to feature in the currently dominant media, including the BBC itself.
Normally we assume that important matters are to be discussed by very important people. Millionaires and their assistants answer the questions that media professionals take it upon themselves to ask. But if we want to create a political system that encourages and rewards widespread participation then the convention will have to embody these same values.
Rather than a process dominated by parliament we need to draw in a representative cross‑section of the public and give them the information to make informed recommendations to the rest of us. This can best be achieved through the jury form. And we already have some evidence that the public would welcome the use of juries in a convention. In 2007, as part of the Power Inquiry, pollsters ICM asked a thousand people how best to decide the future of the House of Lords. 68 per cent opted for ‘a jury of the general public’. The next most popular choice – ‘elected politicians’ – was the choice of only 17 per cent.
A constitutional convention is up to all of us to shape. If we want to end the supremacy of private property and establish the people as the origin of legitimate authority, a convention is a chance to make the case. British society is on the verge of addressing the accumulated iniquities of decades of unprincipled improvisation. A concerted effort to conduct a convention on democratic terms is needed now. We can begin by describing the existing system in simple and unadorned language and proceed to discuss matters of shared concern from the future of the BBC and the structure of the financial-monetary sector to the national questions raised by the referendum campaign in Scotland and the urgent need to reform housing provision and the energy sector.
We cannot leave this to the Labour Party. Environmentalists, anarchists, socialists, liberals and nationalists all have something to contribute. But it will all be in vain unless that much‑maligned monster the ordinary person can see the point of turning up. This is a social project and a publishing agenda as well as a political matter. It is about ensuring that a clarified public opinion prevails over elite prejudice. Above all it is about a revolution in our common sense.
The fundamentals are in play, for the first time in a long time. There are many who want to maintain the current constitutional order and the surreptitious advantages it confers on the wealthy and the wily. But we have a chance to reconstitute the British state on new lines. We should seize the opportunity that Jeremy Corbyn’s election as Labour leader offers us.
Dan Hind is the author of The Return of the Public: Democracy, Power and the Case for Media Reform. His most recent book is The Magic Kingdom: Property, Monarchy and the Maximum Republic. Illustrations by Andrzej Krauze