Evolutionary politics

A terrific piece in the FT by the man who taught a generation of teenagers to scribble.

It is time to update the ancient constitution

By Larry Siedentop

Published: May 24 2009 22:10 | Last updated: May 24 2009 22:10

Alexis de Tocqueville remarked that the British see things very clearly but can see only one thing at a time. He had a point. The storm over MPs’ expenses and the issue of their accountability has led to talk of a “constitutional crisis” – understood as a loss of confidence in the political class. But the crisis is more profound than that.

It is not just the mores of the political class but the political system as a whole that is in crisis. For Britain has reached an impasse. The process of piecemeal reform – at which the nation excelled historically – is no longer adequate to the problems it faces. Britain needs a new constitutional settlement.

Has reliance on piecemeal reform, however, impaired the ability to think constitutionally in the very country that inspired liberal constitutionalism in the l8th century?

To talk of a constitutional crisis in a country with a codified constitution is one thing – illustrated in the US by threats to “the separation of powers” revealed by the Watergate affair. But in a nation without a codified constitution – in which the political system rests on precedent and an appeal to “common sense” rather than the idea of fundamental law – a constitutional crisis becomes more far-reaching.

Britain has reached the point where the structure of society can no longer sustain its traditional political culture. To see this, one has only to look at the appeal to “common sense” that looms so large in political rhetoric. For what happens when “sense” is no longer “common” – that is, when the attitudes and habits creating a political class able to mobilise and shape consent can no longer be taken for granted.

At that point a traditional political culture dissolves. Take, for example, arrangements for the dispersal of power. Ever since Margaret Thatcher’s assault on local government it has been clear that the British constitution offers no adequate safeguards against centralisation. Local autonomy, we can now see, rested on good manners or common sense not fundamental law.

Something similar can be said about central government. The separation of powers has become more formal than real. Later 19th-century reform bills led to the emergence of a party system that created, first, cabinet control of the House of Commons and, then, prime ministerial control of the cabinet. Of late, the stranglehold of the executive has been further increased through Treasury control. It is now hard to think of a democratic political system more centralised than Britain’s. Only the judiciary has, at times, struggled against this trend.

What social changes have contributed to this? And why do they spell the doom of a traditional political culture, the so-called “unwritten constitution”.

The first is the erosion of the class system and the virtual disappearance of deference. For all of the injustices it involved, the system helped to create a political class that had the confidence and wealth to limit the centralising of power. They took much for granted – too much. But they were not careerist politicians in the contemporary sense. Their assumption of a “right to govern” also had an impact locally, where they had no interest in seeing local government replaced by local administration directed from Whitehall.

A parliament made up of people with more modest means combined with the rapid growth of prime ministerial patronage has changed all that. It has revealed how manners rather than constitutional law underpinned the British political system – giving it an extraordinary flexibility but also making it vulnerable to social change.

To the erosion of a class system has now been added massive immigration, the development of a multicultural society. That has only compounded the challenges facing a traditional political culture, reducing the plausibility of appeals to “common sense”. And it raises the question of what can create consensus, in a diverse society lacking a clear normative framework.

Britain’s problem is not so much the violation of norms as their absence.

What can people hold on to? The asymmetrical devolution introduced by New Labour has made the system of government even less easy to grasp. Arguably, it also confuses expediency with justice. What are people to make of a system that makes it possible for European Union students, like Scottish students, to attend Scottish universities without paying fees while students from England are required to do so?

Membership of the EU has been the final nail in the coffin of the ancient constitution. For attempting to integrate a common law culture – with its emphasis on precedent rather than rational coherence – into political cultures shaped by Roman law and statute has introduced serious difficulties. Implementing human rights legislation has not been easy. The absence of a codified constitution also makes it harder for Britain to assert itself in the EU. There is nothing here like the German Constitutional Court’s opinion setting limits on the EU’s jurisdiction.

A new constitutional settlement is imperative. It must include a British charter of rights, a parliament reformed by serious bicameralism (which would transform the party system and make executive control of the legislature far more difficult) and symmetrical devolution. The ancient constitution was a wonderful thing in its time. But its time is over. It created the attitudes and habits of a free people, but it is now undermining them.

The writer is Emeritus Fellow, Keble College, Oxford

Copyright The Financial Times Limited 2009