A Constitution of Straw

We should be extremely wary of Jack Staw's constitutional intentions, contends Austin Mitchell

I’m all in favour of constitutional and electoral reform. But I always observe one axiom on both. Never trust Jack Straw bearing constitutional gifts.

When Jack was forced by the EU to give us proportional representation in European elections he did it with the worst possible system of PR: the regional closed list. He knew that would do most to discredit real PR and that it would also give the parties effective control over candidates, exercised through their order on the list by putting trusties high, and those less favoured low.

Jack is now trying to give us the same system and pull the same stunt with a second chamber. Here he’s blown with the wind. He was originally in favour of a nominated House, perhaps because that’s what Tony Blair wanted at the time. Then he was in favour of a 50-50 balance. Now, because the Commons threw that out and voted for 100% elected, he favours 80 or 90 percent elected (but is vague on which). Jack calculates on matters constitutional rather than being driven by any democratic or reformist zeal. His aim is always to retain party control but to pretty it up and make it operate in nicer ways.

So when the People’s Jack begins to talk of a written constitution and a Bill of “Rights and Responsibilities,” warning bells begin to ring. Admittedly he has a problem. You can’t have a largely or fully elected second chamber without some definition of the powers of each, which will hopefully limit a power struggle bound to ensue between two elected second chambers. Yet how do you entrench and enforce this and what do you base it on?

Nor can you have a division between two elected Houses without proportional representation. The elections to each chamber must be on different systems, and at different times, unless both Houses are to have the same results. So one of these Houses must have PR. Yet that must be the Commons. If the second chamber (who can’t, by the way, be called Lords if they’re elected) is elected by PR it will be more representative than the first. Hence it will have a greater claim to power and will quickly seize it.

Yet to extend these problems into a case for a Bill of R&R (Rights and Responsibilities – which go together in New Labour speak) and a written constitution, in order to show Labour as the party of constitutional reform, is not only daft but guaranteed to be an enormous waste of time and goodwill, which is certain to end in futile failure. Though knowing Jack’s native cunning, I’m not certain that this isn’t exactly what he wants as the best way to discredit the whole business. You can never be sure.

Written constitutions are only possible when regions or sub states, like the US, come together to form a new state where the distribution and exercise power needs to be defined, or when there is a new beginning as in Germany after the war. New country, new constitution or Mandy Uber Alles - neither condition applies in Britain. Yet without that firm base, a constitution can only be built on a consensus and can only survive if it’s entrenched by some requirement for, say, a two thirds majority to change it. No such consensus is there. Moreover, it’s very unlikely to emerge. The political parties all want something different. Each wants the constitution to favour it and the tension between the people and the lawyers is in any case unbridgeable.

The same problem arises with a Bill of Rights. All too often my right is your imposition. Witness the right to strike. That’s why the European Convention (actually written by British lawyers) is such an ambiguous and vague document. It doesn’t venture into such difficult areas as the right to education, to work, the right to housing, to medical treatment and to all the other things a modern electorate looks for. Is Labour prepared to outbid the Convention and concede all that? I doubt it.

Jack faces an impossible position. Improve on the European Convention, which his own Prime Minister wouldn’t accept, let alone the Tories, or dilute everything by adding responsibilities. He could, for example, concede the right to strike but only in a pleasant, non-aggressive, fashion which doesn’t inconvenience anyone too much (leaving too much to be defined by the courts) or perhaps the right to dissent but the responsibility to do it very quietly without upsetting anyone.

Sorry, Jack, it can’t be done. You’re going to waste the time of party and people if you plunge us into this morass. It may be unsatisfactory that the British Constitution is basically what the government can get away with. Yet the only way to get round that is to strengthen the legislature (which means troublesome expenses willing MPs, Jack) to control the executive. Make parliament stronger and you weaken the power of the executive (aka: the elective dictatorship.) You could do that by proportional representation. It’s certainly worked that way in New Zealand. There every Bill has to be an agreed measure and the House itself is more genuinely representative, and therefore more powerful, while the politicians are kept on a shorter leash. Which is what the electors want. Give us that, Jack, and you’ll make Britain a real democracy. Anything less is an attempt to con the people.

We all know that as an inveterate meddler you’re looking for something to do in your new dignity. But why not reform the prisons, protect our freedoms, rebuild a legal aid system which is breaking down, develop public defenders and more effective but less confrontational justice? That way you’ll do more for freedom and democracy than by any futile haggle over a hypothetical constitution no-one particularly wants.

Austin Mitchell is Labour MP for Greater Grimsby