Monday 14 October 2019

Author argues the case for revamped UK constitution

Politics: Beyond Brexit: Towards a British Constitution

Vernon Bogdanor, I.B. Tauris €18

Brexit has already claimed several political careers including Theresa May's
Brexit has already claimed several political careers including Theresa May's
Beyond Brexit

Colm Mccarthy

The UK's 2016 referendum on leaving the European Union has produced a political crisis, predictable given the enormity of the decision and the closeness of the result. It has also produced some heart-searching about the UK's uncodified constitution, a relic of English history and a most unusual one.

Copies of Ireland's constitution can be purchased for a few euros or downloaded for free, a pocket-sized booklet.

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Some countries have more long-winded constitutions, including numerous military dictatorships and kleptocracies where the constitution is routinely ignored. Just three democracies have uncodified constitutions, the UK, New Zealand and Israel.

In the UK the constitutional order is contained in various statutes enacted over centuries and in assorted conventions understood only by legal scholars. The full corpus would take up a sturdy bookcase.

Vernon Bogdanor argues that things have changed so much since EU entry in 1973 that Brexit necessitates an end to this instance of British exceptionalism and the enactment, finally, of a codified constitution.

Nobody ever sat down and drafted the UK constitution, nor was it ever adopted in one piece by the electorate, parliament or a constitutional convention. It just happened, bit by bit, as England absorbed the surrounding nations on these islands and Britain came to rule one-quarter of the globe via the sovereign 'imperial' parliament, with ad hoc repair jobs through the 20th Century as empire was evacuated.

Each departure was enabled in legislation, as was the devolution of powers to Scotland, Wales and Northern Ireland and the pooling of sovereignty with European Union institutions.

Parliament has also surrendered a right of judicial surveillance not only to the European Court but also to domestic British courts through the enactment of human rights legislation. The result is that parliament is no longer sovereign.

Bogdanor argues that it cannot be fully sovereign again, inside or outside the European Union, and that this reality be faced.

There needs to be, he feels, a booklet-sized constitution, written down in one place, and setting the explicit bounds to the vaunted sovereignty of parliament.

The resort to direct democracy by plebiscite is not a feature of all countries with codified constitutions.

In both the United States and Germany there are no national referendums: the basic law can be modified by supermajorities in parliament and in the component states of these federal systems. In Ireland there has never been a national referendum for any purpose other than the modification of the constitution, which reserves this function to the electorate by simple majority.

In the United Kingdom the resort to national referendums has been infrequent and was controversial from the start.

Only three have been held, the first in 1975 on remaining in the European Community, as it then was; the second in 2011 on the voting system, and the third, again on Europe, in 2016.

All three were held opportunistically at the behest of the government and its parliamentary majority, since there is no constitution which indicates when referendums should be called. More importantly there is no clarity as to the effect of a vote for change: the 1975 and 2011 polls both produced large majorities for no change, hence no problem.

The 2016 vote was unique in three ways. Withdrawal from the EU was a very big deal, bigger than would have been the case with its less substantial predecessor in 1975.

The vote was the first to opt for change, and for the first time the result was narrow. The status of this first-ever vote for change was unclear and remains unclear, an extraordinary constitutional hiatus.

Was the referendum advisory, or did it express the binding Will of the People through some newly-discovered and mystical convention?

Bogdanor hesitates to draw what to Irish people must seem an obvious conclusion: you cannot have referendums, alongside parliamentary sovereignty, without a codified constitution.

The Irish 1937 document, amended regularly by popular vote, has the appealing feature that the consequences of a referendum vote for change are unambiguous: the constitution has already been amended when the returning officer sits down.

In the United Kingdom politicians regularly grace the TV studios with their conflicting interpretations of the effect of the narrow 2016 vote.

That cannot happen in the Irish system and the outcomes of referendums, however controversial or however narrow, are accepted instantly precisely because they are decisive.

The codified constitution may circumscribe parliamentary sovereignty, indeed that is one of the motivations for having one in the first place.

In the UK a future parliament, should full sovereignty be restored, could suspend Magna Carta and assorted later measures conferring rights on citizens as well as barons.

It is unimaginable that this would happen but Bogdanor would prefer that the courts be equipped permanently, Brexit or no Brexit, with the powers that have accidentally come their way.

It appears that resort to plebiscites on fundamental matters is now embedded in the constitutional order in the United Kingdom and it is the widespread understanding that a Brexit reversal, should it come to pass, can be legitimised only through the referendum mechanism which brought it about.

There will be more referendums and the direct democracy genie has escaped.

If the dust ever settles on Brexit, the next UK political crisis will be the argument over the shape of a written constitution.

Can (almost) every other democracy have got it wrong?

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