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Will Self: how we should reform the British constitution

If after the Scottish referendum we are serious about remaking the UK, we should start by abolishing the House of Lords and then be bold.

Writing 20 years ago in The State We’re In, his compelling diagnosis of Britain’s political ills at the time, Will Hutton minted this memorable sentence: “Unqualified shareholder sovereignty and parliamentary sovereignty are two sides of the same coin.” In the wake of the Scottish independence referendum there has already been a great deal of constitutional agonising of the Whither Now? variety, yet none of the commentary I have read or listened to has properly grasped the dual sovereign horns of the dilemma we face. Hutton was entirely right to place the issue of constitutional legitimacy as logically prior to questions about the sort of political and economic system we wish to live in, yet most pundits still behave as if the doctrine of parliamentary sovereignty remained unassailable – a mystical guarantee of timeless British democracy.

We can tease out the inconsistencies of this position if we look at the colossal double bind in which David Cameron placed the British electorate with his pre-referendum promises and his post-referendum speech. Having, with tears in his eyes, pledged to move with alacrity towards some version of devo max for Scotland if the wayward Scots would cleave to the Union, Cameron then asserted, in the first flush of victory, that the English democratic deficit would also have to be addressed post-haste. A set of proposals for constitutional reform is to be drawn up and placed before the electorate in time for them to be considered as
policies for the next government, whatever its complexion.

Setting to one side the vexatious problem of successive governments outright welching on manifesto commitments (yes, I know “welch” can be viewed as derogatory in respect of the Welsh, but in this instance it would seem to be the mot juste), and also the time constraint that plays to the incumbent administration’s advantage because it has its hands on the levers of power, Cameron’s position still rests on a form of that well-known paradox, Catch-22. Why? Because any new government will have been elected under precisely the constitutional terms that have been called into question, and so, on that basis, it is not entirely clear that such a parliament would in fact have the required mandate for what needs to be fundamental change.

Of course, this is precisely what Cameron intends: there are indeed scores of proposals for constitutional change out there in the ether – the Tory party itself set up its “Democracy Task Force” under the redoubtable Kenneth Clarke over a decade ago, and the House of Commons select committee on political and constitutional reform published a report last year with the (seemingly rhetorical) title Do We Need a Constitutional Convention for the UK?.

But the last thing the establishment wants (I use the term “establishment” advisedly, and will qualify it later on) is such a convention, given that, ipso facto, it would challenge the very basis of its own entrenched power: namely, what Quintin Hogg memorably described as “an elective dictatorship”. Compared to the deleterious impact of parliamentary sovereignty, the democratic deficit delivered by the West Lothian question (English votes for English laws) is a bagatelle – indeed, even the vacillating attitude towards the European Union evinced by successive Tory regimes hasn’t been as damaging to our ideals of representative governance.

Technically speaking, it is the monarchical prerogative as enshrined and then enacted by parliament that is constitutive of British sovereignty, but actually this is no mere technicality: the government of the day and the monarch exist in a self-reinforcing symbiosis; therefore, if the Queen is truly symbolic of anything, it is that her government arrogates to itself her predecessors’ divine right. In other democracies codified checks and balances have been designed to constrain executive power, but in Britain there are none of these. I often find myself explaining to interested foreigners (and politically unlettered natives) that should the government introduce a bill into parliament that calls for the murder of all first-born British children, and should that bill be passed into law by a majority of MPs, there can be no constitutional reason why it should not be propagated – although the European Court of Human Rights, given its current jurisdiction, might accept petitions brought by the bereaved.

However, barring divine intervention, the Prime Minister can, with the assent of the Commons, unleash winged death on his own electorate, just as he can with “legality” on the people of Iraq. Writing in 1994, Hutton put it succinctly: “The proud House of Commons regards itself as the cockpit of the nation, but it is no more than the creature of the government of the day.”

That the government of the day should be able to herd its sheeplike MPs through the lobbies is pretty much a given; this rests in part on the inducements of the payroll, in part on a collective and corrosive ambition, in part on social and ideological solidarity, but mostly, I would argue, on a self-fulfilling sense of entitlement that hasn’t been dispelled by the recent expenses and phone-hacking scandals, but rather tempered. In their obduracy in the face of their own public, Britain’s parliamentarians remind me of Millwall supporters: “No one likes us – we don’t care!”

Hutton’s book was published towards the end of the Tories’ 18 years in government; his critique of our “feudal” constitutional arrangements was, for all its clear-eyed realism, still inflected with a dewy-eyed optimism: in 1994 Tony Blair is yet to triangulate his way into the Labour leadership and then into office; there remains everything to play for. And yet, given the precision of his historical analysis, Hutton should have seen what was coming.

The Labour Party’s most grievous mistake throughout the 20th century consisted in its failure to pursue bold constitutional change. There are all sorts of reasons for this, many of them rooted deep in the party’s nature and its conception of the working-class struggle, but the overriding factor – the one that ensured the status quo would remain fundamentally intact – was that Labour politicians very much desired the untrammelled power offered by the elective dictatorship. If only, they thought to themselves, we can secure the commanding heights of government then we’ll be able to make all the changes we could possibly desire.

With its lust for the corrupted body of absolutism, the Labour Party showed itself to be absolutely corruptible. Hutton’s characterisation of the previous Tory regime as a “one-party state”, in which the judiciary, the police, local government officials and business leaders were all interconnected by a web of financial and ideological interests, implied that theirs was a monopoly on power, yet that hadn’t been the case since the Whigs played their part in the constitutional revolution of 1688-89.

In fact, Britain’s elective dictatorship has always been a duopoly of one kind or another, with factions of the same party alternating. I am not inclined towards the man in the street’s anti-politician ranting: “They’re all the same!”

Nevertheless, on one key policy the elective dictatorship has been surprisingly united – constitutional change, if it occurs at all, should be gradual, while the sovereignty of parliament must remain sacrosanct. The consequences of this are everywhere in evidence. The great flood of new Labour MPs in 1997 was followed post-haste by the gurgling sound the new intake made as they were suckered into position on all the committees and quangos to which power was, is, and perhaps always will be delegated piecemeal. Far from forcing the executive to regurgitate the legislature it had swallowed whole, the scale of Labour’s landslide victory encouraged it to carry on digesting. The tendency of the Blair governments to legislate on the hoof rather than formulate considered policy follows logically; after all, you are what you eat.

The sidelining of parliamentary select committees, the flouting of the civil service codes put in place since the Northcote-Trevelyan report of 1854, the emasculation of local government, the rise and rise of lobbyists together with the attendant corporate boondoggling – all this continued apace under Blair. In truth, the real checks and balances within the British constitutional settlement were, throughout the turbulence of the 20th century, provided by the existence of a political opposition that constituted itself, in part, as an alternative civil society: municipal socialism, trade union welfarism, workers’ education, social housing and the National Health Service – taken together, they gave many Britons a sense of citizenship and civic pride separate from but aligned to the old state institutions of the Church, the army, the monarchy and parliament.

Blair’s policy triangulation, shifting the party wholesale to the centre (arguably the centre right), was accompanied by these sequelae – the implicit acceptance of Margaret Thatcher’s anti-union legislation and the abandonment of any notion of working-class solidarity. One could go further and say: the abandonment of any conception of there being a working class at all, a dangerous development that allowed for the Conservative-led coalition, on assuming power in 2010, to begin its solemn excoriation of the “undeserving poor”.

Will Hutton’s view in 1994 was that what was needed in order to build a truly social-democratic Britain was a financial system that genuinely served the interests of British companies and their workforces, which in turn would imply a wholly different set of rights and responsibilities, both for individuals and for businesses. He foresaw the Labour Party moving towards one member, one vote as an essential move away from the corrosive adversarial industrial relations that had hamstrung the British economy and deformed our polity – just as essential as bridling the short-term, high-dividend (and high-bonus) investment policies of the City.

But although Labour’s Clause Four was abolished and time called on the unions’ block votes, the very institutions that militated against any new civic order – while ensuring that the commanding heights of the economy were manned by short-term speculators intent on securing maximal profits – not only remained intact, but were strengthened. New Labour was seriously comfortable with people getting seriously rich; devout believers in the trickle-down moonshine of the driest neoliberals, they further undermined the electorate’s sense of political efficacy by stimulating the febrile credit boom, which, under the Tories, had masqueraded as good economic health.

Like a non-dom oligarch digging out a deep sub-basement in Chelsea, New Labour enthusiastically embraced public-private finance, further undermining what little sense of civic duty remained; after all, it’s difficult to believe you own a share in House Britain when it has been mortgaged to the hilt, and beyond. Meanwhile, the most compelling irony of the Blair governments is that Scots devolution – rushed through in order to shore up short-term electoral advantage, rather than on any basis of conviction – has turned out to be a time bomb planted under the Speaker’s chair.

At the recent Tory party conference in Birmingham, the jaw-jawing was all about how to shore up the elective dictatorship, not disassemble it: the plan by the Home Secretary, Theresa May, to institute the thought crime of terrorist sympathising, and the passion of her backwoodsmen for removing the European charter on human rights from British law, are both measures inspired by the strange, glassy-eyed mysticism that overtakes our political class when they regard the existing and evanescent constitutional settlement as if it had existed from time out of mind.

Perhaps no single institution exemplifies this bizarre attitude better than the House of Lords, which has been fiddled about with relentlessly, as if it were the sexual plaything of its priapic fellow chamber. Under Labour the Lords ended up as a malformed thing, prolapsing with the sheer weight of the placemen and placewomen who had been swaddled in ermine. Writing in the New Statesman immediately after the Scottish referendum (26 September), the redoubtable Helena Kennedy, whose long-standing commitment to constitutional reform cannot be gainsaid, had several observations to make. Like me – and, frankly, all right-thinking people of the left – she viewed the Tories’ response as wholly ideological: “They will use constitutional change, which they devise, in order to fix the status quo and maintain power where it is already located.”

She also, in my view correctly, refused to view the economic, the political and the constitutional as being in any way separable, stating baldly: “I think our embrace of neoliberal economics is destroying our values.” What Baroness Kennedy didn’t seem prepared to acknowledge was that, as a member of an unelected legislature and a political party that remains petrified by the City’s gorgon stare, she is in danger of appearing like part of the problem rather than its solution.

It is customary for those on the left to view all the flummery and mummery of the British state as just something we accept as the price of rubbing along. Periwigs and coronets with baubles; black rods and white stockings – these are the froufrous that guarantee our commitment to good old British gradualism rather than the violent regime change that afflicts other countries. For myself, I have always considered anyone who espouses socialism styling themselves as a lord or lady to be a walking solecism – perhaps not on a par with a Holocaust survivor choosing to assume the title SS-Obergruppenführer, but tending in that direction.

Only 120 years ago the upper chamber was still the repository of the landed interest, its incumbents between them owning perhaps 90 per cent of Britain’s surface area. And what they had they held on to, in part by intimidating the people with their mystery power-play, enacted in full costume.

The left-wing people I know who have accepted these so-called honours always wish to make it clear that they have assumed the ermine only in order to assist in the abolition of the House of Lords, yet, strange to relate, some of them have been reclining on the red benches for decades now, while the institution remains obstinately intact.

This is a non-trivial point: the unwritten nature of the British constitution makes of it a hazily numinous thing; it exists not in this place or time but some sort of uchronic realm, a merrie England – or Britain – where Old King Cole, John Bull, Uncle Tom Cobley and Falstaff swig ale together and tup wenches. Yet since – to adopt the historian Colin Kidd’s useful formulation – the British constitution actually is what the practice of the courts, the behaviour of politicians and a preponderance of constitutional interpreters uphold as constitutional fact, they are thereby able to conjure fact from fantasy and vice versa.

This explains the peculiar expression that creeps over one’s interlocutors’ faces whenever you suggest significant changes to any of the following institutions of the “establishment”: the monarchy, the established Church, the law and parliament. I would add the armed forces to this list, although they do seem to be a special case: an institution so steeped in flummery, mummery and the monarchical pantomime that it seems capable of withstanding the most savage winnowing, just so long as it can still rise up, pull off the pomp and unleash the occasional missile in the direction of someone brownish. Oh, and I forgot to mention one other key institution of the British state that cannot be molested – the City.

According to Will Hutton in 1994, “what binds together the disorders of the British system is a fundamental amorality”. But I would qualify this: it is a fundamental amorality that conceives of itself as a system of ethics, and that system of ethics is predicated on what he terms “gentlemanly capitalism”; for all the huffing and puffing about social mobility, parliament is still the gentlemanly capitalist’s preferred club; there is a sorbet’s chance in hell that our elected and unelected “representatives” will, without severe pressure, vote to have their own powers attenuated.

Some of the respondents in the New Statesman’s “Whither now?” round-up called for a constitutional convention, and this is indeed essential if Hutton’s social-democratic vision is to be realised. As he argued: “Corrective economic and social policies and institutions that embody them presuppose a system of values; and that demands a political constitution in which public values and common interests can be defined.”

Obviously if we are to have a new conception of citizenship to bolster this political constitution, then the citizenry – in the widest sense – needs to be involved as fully as possible. Watch this space: even if there is some move to such a convention it will be a weak and unrepresentative body; doubtless policy wonks will hatch plots to involve “the youth” through social media, not appreciating – or perhaps realising only too well – that the atomising and enervating effects of the web and the internet are a large and growing component of the overall political apathy.

No, a constitutional convention should be a realisation of participatory democracy: it should enshrine the true sovereignty of the British people by involving all those people; it should actualise citizenship as an active not a passive condition; and it should, by these means, aspire to the legitimacy the current parliament lacks.

Everything should be up for grabs: we are not going to achieve any true devolution of fiscal powers of the kind that Labour’s Jon Cruddas envisions without being willing and able to challenge all the principal state institutions. Naturally, people being social animals, some leadership is required.

In an essay written before the Scots referendum, Colin Kidd proposed that the House of Lords should become the British equivalent of the German Bundesrat, convoking representatives from the various states gathered in a new British federation. In the wake of the referendum many more have leapt on the Bundesrat bandwagon. I would like to do so, too, but first the House of Lords as it is currently constituted will have to be abolished.

Why wait? Why don’t all those Labour peers who claim they’ve only taken their seats in the cause of such abolition use this historic opportunity to vote with their feet, renounce their titles and reconstitute themselves as a part of the constitutional convention? I cannot conceive of a more powerful statement in support of democracy; moreover, in so doing, these former lords and ladies would be rejoining the commoners whose rights they say they wish to uphold, and at the same time striking a potentially fatal blow at the elective dictatorship that has progressively degraded democracy, equality, liberty and any semblance of fraternity in this country since the passage of the Parliament Act in 1911. 

This is an edited version of an essay the author gave as part of a seminar series at Brunel University, entitled “The State We’re In Now: an Anatomy of Britain Today”. Helena Kennedy responded. Five further seminars have been scheduled. For all details and to register, go to: brunel.ac.uk/hutton

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 22 October 2014 issue of the New Statesman, Why Britain and Germany aren't natural enemies