Written evidence submitted by Stephen Barber (AMC 36)

Simply codifying the status quo could create more serious problems than it potentially solves while failing to address the very real shortfalls in Britain’s constitutional arrangements.  A ‘new Magna Carta’ would only be of value if it enshrines a new constitutional settlement worthy of a twenty-first century Britain.  That means devolved powers to Scotland, Wales Northern Ireland, London and throughout England; representation in the House of Commons; and a democratically legitimate House of Lords.

1. The question is not whether codified or uncodified constitutions are preferable but rather the desirability of codifying existing constitutional arrangements which have developed in Britain over many years. This is a very different proposition from that where a ‘new state’ of some kind has come into existence due to democratisation, independence or some other seismic change.  Here, setting out rules, limits, powers, procedures and rights in codified form is clearly attractive. The case for codifying the status quo is less clear cut. Unless the intention is to change practice in any way, the danger could be to invite judicial review of almost any action since capturing the nuances of existing practices in a (single) document would be an incredibly difficult task. 

2. There is the further question of establishing differences between ‘fundamental’ (that is constitutional) and ‘ordinary’ laws; a distinction that is not made in Britain but which can be found around the world.  So long as the principle of parliamentary sovereignty and the idea that no parliament can bind its successors remain at the heart of the constitution, there would be nothing to stop any future government from simply changing it by Act of parliament. While we have an electoral system that in 2005 delivered a 66 seat majority on a 35% share of the vote, this would not appear to be a very effective check on Executive power.

3. It is true that the existing uncodified constitution has proved flexible and has even been stretched recently to accommodate coalition.  This has seen conventions including prerogative powers, collective responsibility and the Salisbury-Addison convention come under strain in order to sustain two parties in office.  And it has done this within the ‘Westminster model’ which is adversarial rather than consensual and with a first part the post electoral system which usually delivers majority governments on minority votes. With it has come revised or potentially revised guidance in respect of the Ministerial Code and Guidance on Caretaker governments.  As a consequence, the constitution has changed as a result of coalition and much of that change is not deliberate[1].

4. The problem Britain has experienced is not so much that it has ‘become too easy for governments to implement political and constitutional reform to suit their own political convenience’ (though governments have certainly exploited the principle of parliamentary sovereignty over the popular vote).  Rather it is that existing arrangements can be convenient to the holders of office and there is often little incentive to reform.  Many of the changes which have taken place are either unintentional or represent the result of political pressures of the time.

5. Part of the problem with consolidating and codifying existing arrangements is that the British constitution as we know it today is not the product of any plan or design.  There was no ‘big bang’ creation and what we have is a combination of convention, administrative evolution, legislation, treaties, practice and political pressure loosely bound together over a rather long period of time.  To consolidate and codify would be to enshrine a constitution that in reality no one ever wanted (even if there are plenty of defenders).

6. It is important to be clear about precisely what a codified constitution is intended to fix. There are legitimate concerns highlighted in the consultation document: those of ‘elective dictatorship’, democracy that is ‘uncertain and unclear’ and arrangements that fail ‘to give primacy to the sovereignty of the people and discourages popular participation’. But these cannot be addressed by simply enshrining the status quo. 

7. The ‘absolute’[2] nature of a single party government derives from big majorities in the House of Commons and the principle of parliamentary sovereignty over popular mandates.  Uncertainty and lack of clarity comes from an electoral system which is not designed for multi-party politics but which in 2015 will have to handle as many as five national parties together with the nationalists. The outcome in terms of seat distribution is now something of a lottery[3]. And it is difficult to give primacy to the people when in some constituencies their vote barely counts and while in the upper House of Lords they have no say whatsoever[4].

8. There was a fear expressed during the Scottish independence referendum campaign that any devolved powers conferred by Westminster can simply be taken back by Westminster in the future and this is technically correct if politically unlikely. Meanwhile the focus has shifted to the ‘English question’ or the ‘West Lothian question’ and the permanent settlement that is now required to ensure fairness in terms of the distribution of powers and responsibilities right across the country.

9. The great problem with our constitution is not that it remains uncodified but rather that many of the arrangements no longer afford legitimacy. A ‘new Magna Carta’ could have great value in Britain today, help to reinvigorate our politics and be meaningful to voters. But it can only do this if it is a document which enshrines a new constitutional settlement fit for the twenty-first century.  It has to be the icing on the cake of a package of thought through reforms:

1. Devolved Powers to all parts of the UK. 

Whatever the details of further Scottish devolution, the institutional mechanism of Holyrood is in place.  Similarly there are Assemblies in Wales, Northern Ireland and London and these too will expect greater autonomy.  But there also needs to be an English settlement which devolves power down from Westminster and closer to the people.  I favour a combination of Cities and Counties[5] making use of existing institutions but whatever the arrangements, those powers should be constitutionally embedded so that they are not constantly changed to suit the national government of the day.

2. Electoral Reform for the House of Commons

If its shortcomings have not already become apparent to the electorate, the 2015 general election could see first past the post unravel. With a potentially popular UKIP gaining votes but not/few seats, nationally pressured but locally embedded Liberal Democrats, a resurgent SNP and the Greens who already have an MP, the 35% who already do not vote Conservative or Labour is expected to increase meaning the outcome of the election in terms of seat allocation is likely to bear little resemblance to votes cast[6].  In such circumstances, electoral reform will need to rise up the political agenda.

3. A Democratically Elected House of Lords

The Committee has already investigated the constitutional position of the House of Lords following the collapse of the most recent proposed reforms.  Since then the number of peers continues to increase and now represent unsustainable levels.  More than this, the main criticism is not the Lords’ effectiveness but rather its legitimacy.  If we want public participation in the political process, then allowing the people to vote is surely the minimum concession. 

10. Two positive features of the Scottish referendum were that it was an almost apathy free campaign and there was real political leadership shown on both sides of the debate. Sadly the same cannot be said for the debate about devolving powers in England, which has descended into a party political squabble or broader constitutional change where there is no momentum[7].  There is an opportunity for leadership here and if that is not to come from the party leaders then there could be a role for this Committee to head an intelligent and forceful debate. That is Parliament rather than parties showing leadership. Brought under the umbrella of ‘a new Magna Carta’ could be a sensible and significant package of reforms which, because they will matter, could engage voters and help reinvigorate politics. 

5 November 2014