A new Magna Carta?

2014-07-11 13.53.21The Political and Constitutional Reform Committee of the House of Commons has published a report, A new Magna Carta? asking whether the UK needs a codified constitution.  It identifies three options: a non-statutory constitutional code (akin to the Cabinet Manual), a Constitutional Consolidation Act, and a written – by which it means an entrenched – constitution.

The report is neutral on the options – it identifies the arguments for and against and invites submissions.  However, the chair of the committee, Graham Allen, supports a written constitution and I was on the BBC Daily Politics programme yesterday to debate the issue with him.  The debate is essentially about what a constitution is designed to achieve.  Some see a constitution as a means of enshrining particular values and constraining public bodies and majority will (negative constitutionalism) while others see it as a means of ensuring the will of the people prevails (positive constitutionalism).  Research commissioned by the committee contends that the existing uncodified constitution ‘fails to give primacy to the sovereignty of the people’.   That is questionable and no basis for implementing a reform that would enshrine values above the will of the people.  Under our system, the will of the people can be expressed through Parliament – we are closer to a system of positive constitutionalism than are advocates of an entrenched constitution.

Given that a constitution enshrining particular values would require interpretation, and entrenchment would put its provisions beyond the reach of a simple majority in the two Houses of Parliament, we would witness political issues being resolved through a judicial rather than a political process.  There is an argument for that, but I believe in a system where political issues are resolved through debate by those elected to represent the people.   If people disagree with the outputs of Parliament, they can lobby for a new law to change the situation.  If Parliament is deficient as a medium for expressing and defending the interests of electors, that is a case for reforming Parliament, not an argument for an entrenched constitution.

Discussing a codified constitution is, in my view, something of a distraction from addressing flaws in our current arrangements.  And, ultimately, the most powerful protector and constraint is the political culture.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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9 Responses to A new Magna Carta?

  1. tizres says:

    Re your appearance on Daily Politics: I felt your pain.

  2. Lord Norton,

    This is of course almost infinitely interesting to me. If I do one of those many months later comments here don’t be surprised. I do not know if you still read such latecomers as you once did. It will be interesting to see how this debate developes.

    On the issue of a clearly defined master document which is entrenched above ordinary statute a great deal can be said. But anyone on any side should recognize that political culture determines the usefulness and application of any such document or its rival traditional arrangements. Oddly enough I think there was a time not so long ago when one could seem clever and sane arguing your arrangements were too staid and hidebound compared to America’s and also led to hypocrisy about what was a constitutional issue. This is a time when one could seem clever and sane arguing our arrangements are too staid and hidebound compared to Britain’s and also lead to hypocrisy about what is a constitutional issue. In this see-saw the basic constitutional types of the systems have not changed but perhaps both cultures have evolved. The risks really being exchanged between the two countries in fairly comparable ways. I realize one could strongly argue against this view I put forth but to the degree it is true it makes one think. No constitutional amendments here are forthcoming to address the really trying issues however imperfectly although we had vast experiments (including Civil War and Prohibition) in the past. On the other hand the Scotland issues could scarcely be more memorable or disruptive in terms of constitutional perceptions outside, Lords reform has been sweeping over the last five decades, there is a Supreme Court and the line of succession for the monarch has been revised. Suddenly one studying the world they live in concludes very different things about our systems.

    Here the Voting RIghts Act and Civil RIghts Act were statutory, judicial review is vastly more influential and normative, The ERA, (Equal Rights Act), several proposed electoral and fiscal amendments have not really come close to success and the Constitution is admitted to be a document stretched and strained by the times in places on would not expect such an admission. Obamacare (the Affordable Healthcare Act) was in general not read even in detailed summary by the electors and our parties do not function as yours do but require all legislator to know their own minds in real terms on all major votes.Constitutional questions cannot be submitted under such circumstances. I personally am in the process of giving up entirely on my own political culture but maintain an interest formed over decades of study and discussion here. You are of course able to influence yours.

  3. Elections aren’t representative though. Esp. not on individual issues. Only plebiscites and referendums are. People don’t fully endorse a party or candidate. Not even those they vote for.

    • maude elwes says:

      You are quite right, Rhoderick Gates, which is why we need the same ‘Direct Democracy’ we see working well in Switzerland. The Blair/Brown governments highlighting the need more prominently than in the past. And again, today, under this horrendous coalition. When you look into this excuse for running a country it only proves we are living with a one party system dressed up as democracy.

      • Trouble is, the majority isn’t always right. And how big a majority would be required and how many signatures is a ‘fair’ amount to trigger a CIR? That’s all subjective

  4. maude elwes says:

    @LN:

    I watched the Andrew Neil show you suggested and was appalled at the lack of interviewing technique is this instance. The idea of such a show being a balance of information. The guy putting his Magna Carta idea forward was overly aggressive and didn’t let you get a word in edgewise. Which irritated me no end. I was looking for a two sided snippet and only got a one sided view. Repugnant way to introduce new thinking.

    i like the idea of a written constitution and wanted to understand it more fully so was waiting to hear your opposition, which didn’t arrive. And this must be corrected. Neil, of course, finding it all very amusing. Russet face all a bluster believing no one would have an interest because he didn’t. I think he’s getting a bit old for the job.

    However, it really must have a total and open discussion on how it would work, what we could add to it or expect, and what it would mean to us in our daily lives. Could we outlaw things like being taken over by another country and their political mantra, as we are, by consent of present British government, to the USA. It is in the Tory manifesto and was recently written of in some newspaper, I will look for it. (Another dire reason for Direct Democracy) Could we have an impeachment process written in it for traitorous Prime Ministers and their henchmen? And a safeguard from being consumed by corporations and foreign concerns. Not to mention the all consuming globalisation we neither want or fully understand the vision of. To have a human right to an NHS that isn’t open to privatisation or being taken over by foreign companies at the whim of any government policy, would also be of benefit. So many questions and so few answers.

    In essence though, this was very exciting to watch. But, we need more, a lot more. And a vote by the people on it has to be a must.

    I look forward to hearing a great deal about this move and to your opposition. You deserve the opportunity to let it all out. Don’t let them do that to you again, LN, you were to polite and let them away with it.

  5. maude elwes says:

    A lot wrong with the above post, LN, but, ‘too polite’ in the last sentence drove me insane.

  6. maude elwes says:

    @Rhoderick Gates:

    Like it or not, democracy is all about self determination, interest and decision making by the people. Danger to any democracy only comes from circles who try to abolish or limit such self determination.

    Any party or group of people who ‘demand’ more democracy are the representatives of us all. However, what we presently have leading us is a dictatorship that flies in the face of our democratic principles, which is why we are heading toward a written constitution. A need for it overrides all who fight against it.

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