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.