Politics

Coherent values for a complex society

Published 29 February 2008

We should welcome a British Statement of Values, but it will take a long time to secure a written constitution, says Solicitor General Vera Baird QC

Labour has enacted a programme of radical constitutional reform since 1997, with much still to do. There is already devolution in Scotland, Wales, Northern Ireland and London; Freedom of Information; the modernisation of the House of Lords (which is unfinished business); the creation of the Supreme Court, reform of the role of the Lord Chancellor; and incorporating into our own legal system the European Convention rights which the British drafted, have relied on for decades, but which were difficult to enforce in our domestic arena. A calm look at our current constitutional settlement reveals better access and participation and more rational and useful institutions.

Now Gordon Brown, through the Governance of Britain document, is consulting on releasing to Parliament some powers currently exercised by government via the anachronistic royal prerogative; putting the civil service onto an independent statutory basis and making changes to the Attorney General’s powers.

At the same time, Jack Straw and his Justice ministerial team are actively engaged on a Green Paper to consult around a British Bill of Rights and Responsibilities. Consensus will be sought before such a framework is implemented, but it is of growing importance in times when notions of citizenship, law, rights and democracy are under ever-increasing scrutiny, and when their parameters are often hotly disputed. Our complicated society needs a coherent set of values – written down – by which we expect and are expected to live. A British Statement of Values, as a formal expression of our national identity, will therefore complete the process.

This could all offer a framework for citizen activism to encourage a more participatory society. It would make clear the rights that citizens have against the state, and the responsibilities that citizens owe to one another in the way they exercise these rights. And beyond day to day utility, they ought to offer powerful symbols of our society’s characteristics, by which we can understand our position in relation to the state and to our fellow citizens: British society’s statement of purpose to itself.

Even as we pursue all of these expressly constitutional measures, we continue to legislate for other changes, sometimes rights-based, like the imminent Equalities Bill, which will expand and bring more coherence to our equalities regime. These rights are justiciable but the CEHR is expected to prioritise work to promote cultural change.

We will therefore have diffuse sources from which we can source our moral, legal and political rights – this may eventually require consolidation.

Hence the thinking in government is that a written constitution may be desirable: ultimately, when and if consensus is arrived at, partly to ensure coherence and integration of all of these diverse measures, and additionally to put them all into one accessible place.

The term written constitution is a loaded one. The most famous, in the USA, is supreme over both legislature and executive, interpreted by a Supreme Court very different from the one we are introducing here which can strike down legislation, however consensually or overwhelmingly it was passed by the democratic legislature.

In the UK, parliamentary sovereignty is fundamental and accountability through the ballot box for major law changes is a constitutional constant. Though judicial law-making is inherent in the process of interpreting statute, particularly now that the Human Rights Act brings in tests like proportionality and democratic necessity, nonetheless the British public would baulk at the prospect of Judges striking down law, or of parliaments entrenching legislation to bind the legislative hands of their successors.

So, for some commentators, the very principle of parliamentary sovereignty rules out a written constitution, but that caveat does not apply if what one ultimately needs is a declaratory, codifying constitution-writing process.

This is a long way away. The exciting imminent prospect is of searching for consensus around what Francesca Klug has called: “a framework of ethical values driven not just by the ideals of liberty autonomy and justice but by normative values like dignity, equality and community”. Half lawyer, half politician, I cannot totally rid myself of the notion that inherent in this quest is a groping towards a sort of post-political consensus. But in order to articulate and develop our common values now, a British Bill of Rights and Responsibilities will prove an excellent first step.

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5 comments from readers

John James
29 February 2008 at 18:18

How could a British constitution be written within the context of the EU?

You say: "In the UK, parliamentary sovereignty is fundamental and accountability through the ballot box for major law changes is a constitutional constant." But 90% of laws today come from the EU and it doesn't derive its power from the ballot box.

If the Government or anyone else tries to write a constitution they will quickly discover that we no longer have enough sovereignty to constitute a constitution, so I think they will have to stick to some kind of statement of common values, that won't be common because a lot of people won't agree to vague statements "comunity" and 'togetherness' don't do it for them and don't amount to a row of beans.

Check out the story on eursoc.com about the "anti-constitution" it is pretty revealing.

agent phyzx
01 March 2008 at 00:46

The USA consyitution is based on the most famous one ,the British constitution ,which is allready written.

It comprises of ,the mana carter,the english bill of right ,the coronation oath ect.It is superior to parlimentary ledgeslation and cannot be over written as this is specifically refered to as treason in the documents.Common law is the supreem law of this country ,above all others.How come you forgot this.?

phyzx

Roland Baker
02 March 2008 at 17:17

We should have separation of powers between the Judiciary, the Executive and the Legislature as the basis of our freedoms under common law. This is my understanding of the present set up.

The separation between the Judiciary and the Legislature has become blurred by the body of administrative law known as Judicial Review, leading to the test of "Wednesbury" unreasonable. As in the case of Allied Steel and Wire pensioners, the present Government's contempt for the law is a major factor in developments in this arena. Leave aside the declaration of an illegal war that seems clearly to have been driven by spin following the failure of the Pasquill prosecution and the release of the Williams draft. If the disgusting treatment meted out to Derek Pasquill is not an attack on the independence of the Civil Service, what is?

The inclusion of confidentiality clauses in Acts of Parliament behind which QUANGO regulatory bodies can hide their failure of duty is another example of the failure to separate powers in accordance with Sarbanes-Oxley principles of good governance. In the case of the Financial Services Authority it has already led the Chancellor of the High Court to criticise the FSA in 2006EWHC3507 for failing to protect consumers. Similarly the Pensions Regulator uses a confidentiality clause to cover up its deliberate failure to institute any form of pensions regulation in this country because it knows the Government has no interest in protecting pension scheme members.

The widespread use of Quasi Autonomous Non Governmental Organisations (QUANGOs) and Executive Agencies, outwith the Civil Service, for everything from administering social benefits to financial services enforcement has already caused the collapse of the Child Support Agency and the Northern Rock nationalisation.

There is a further blurring of control of our society between the facts on the ground dictated by big businesses and Parliament's helplessness in the face of it, and indeed active collusion with it. This has led to wage cuts, poor social mobility, loss of workers' rights, loss of skilled jobs, abuse of the nation's health and persistent coercion of the population through concentration of power.

Writing down how our freedoms and rights are now to be defended in our 'unmanaged conflict of interest' society becomes essential in these circumstances.

Bruno Rodrigues
02 March 2008 at 18:27

John James;

Where did you get the statistic that 90% of laws come from Europe? It sounds wrong. More likely it is misleading. Even if it is right, it would have to include Directives, Decisions and Recommendations for the figure to be that high. That is misleading because these category of law are not directly applicable, capable of direct effect - and therefore they are not BINDING on our jurisdiction.

And yes our laws still do come from the ballot box despite the existence of the EU. Have you heard of the European Communities Act? and European elections? Parliamentary sovereignty also means that the UK can pull out of the EU at any time it seems fit.

So the EU does not effect parliamentary sovereignty.

gnuneo
02 March 2008 at 21:59

"the British public would baulk at the prospect of Judges striking down law"

that would probably depend upon the law - i would suspect that had the judiciary had the power to strike down the Poll Tax, to force the Executive to actually disclose the alleged 'proof' that saddam had WMD *before* our troops were sent over to die, and to prevent the removal of Habeas Corpus from British citizens, as has happened under these appalling "anti-terrorism legislation", then the People would not complain very much - or indeed, at all.

in fact, the only objection i could think of to us having a fully written Constitution, is the buggers who will write it are precisely the ones who we need it to defend ourselves from!

jack straw =/= george washington, by any stretch of the imagination. More like that lovely german bloke with the funny moustache a few decades ago.

hell, i wouldn't be at all surprised to discover he slips some stupid shit in about not being able to wear hats, scarves or headscarves to ones MPs surgery - all in the interests of good multicultural relations, of course.

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