Wednesday, October 24, 2007

Our imaginary 'Constitution'

A few weeks ago, Tim Garton Ash wrote what I thought to be a very good straightforward piece about the EU 'Constitution' and why we shouldn't be worrying about a referendum. I think there are two - minor - things wrong with the piece.

1. He understates his point 3. The reason not to have a referendum is not just that we are not a plebiscitary democracy. It is because referendums are just not an acceptable way of involving people in making important decisions on complex matters. I don't want to make that case again now - there's plenty examples in the archive here - but the issue of referendums highlights the second issue missing from TGA's piece (and I've not heard anyone making yet either). And it's ....

2. The acceptance of the premise that the document (whatever it is called by its supporters and opponents) will impact upon the British Constitution.

The argument for a referendum is that it is needed because this is a constitutional issue that involves a redrafting of our existing constitutional settlement. Now, I'll admit, there was a man called Bagehot who wrote a book called The English Constitution. But it was really just a sophisticated joke designed to market a user-guide to the English state at the time. Really. Check if you don't believe me.

The fact is, we don't have a constitution in this country that would be amended in any way by the treaty that we are being asked to sign up to. We do have a constitutional settlement, I suppose. Or something that we call a constitutional settlement for compare and contrast purposes.

But the point of our ancient Crown in Parliament fudge is that we can undergo much bigger changes in the way that the state is managed than this treaty without it actually breaching any of Her Majesty's red lines.

When Charter 88 was launched nearly two decades ago, one of the core demands was for a written constitution. I thought it was a bit of misguided liberal handwringing at the time, and I still do - for four reasons.
  1. Show me a written constitution, and I'll show you even more fat overpaid lawyers than we have at the moment, with no noticeable benefit to the public interest.
  2. All of us (even supporters of the idea) *will* be driven insane by having to watch the drafting of a constitution. I will personally be convicted of mass murder after a few days watching it. Pressure groups. Political correspondents. Picture the scene? You know I'm right about this?
  3. Even if it's a good idea in theory, it's like the 'Citizens Basic Income' - an attractive proposition whose introduction doesn't come with a usable roadmap. It would not be possible to introduce a constitution in this country without us first having some seismic structural change (war / inflation / revolution)
  4. Liberties. We have generalised liberties in this country. They have been established by custom and practice, updated and consolidated by the arguments of great men and women. They are defended in a holistic way by our elected representatives, and representative government (the comments are open here!) is a much more effective guarantor of any liberty than written assertions of them in a poxy constitution. The constitutional (that word again) function of liberties is to protect us from the caprice of the electorate and their politicians. We've not done that badly maintaining our liberties in this country.
So, in conclusion, I don't want a written constitution. The fact that we don't have one means that a treaty can't amend it. So we don't need a referendum on it either.

And finally, how come the Conservative Party - historically the defender of the British constitutional fudge, and an implacable opponent of un-British ideas about constitutions - are now pretending that we have one?

If there were a case for a referendum, The Conservative Party are the most poorly positioned outfit to make it.

Postscript: I should really write a follow-up post on how the notion that constitutional change requires referendums is one of Tony Blair's most pernicious legacies.

There. I've written it now.


Tim J said...

You're perfectly right. Referendums are indeed contrary to our system of representative democracy. The problem is that we have to elect our goverments according to the manifestos that they submit to the electorate prior to the election. Since it was a manifesto committment of all three parties to hold such a referendum, it is not a repudiation of representative democracy to believe one should be held, but rather a defence of the logic of a representative democracy.

Unless you believe that the Treaty and the Constitution are two entirely separate documents - and not for example, as Tony Blair said, a situation where a Treaty is overwhlemingly rejected by voters, and then a few changes are made and they try again.

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