Judges, rather than politicians and the people, are now holding the government to account over our human rights. A stronger and elected Lords will rival the Commons and threaten its traditional supremacy.

Hurrah, on both counts. In other words: you’ve missed a third option, which is that the constitution as it is does a fine job, that it does indeed adapt, that neither the HRA nor an elected Lords would cause any problem.

Under this reading, the alleged ‘crisis’ has been invented on the one hand by people who want to move to a prescriptive US-style constitution (generally but not solely republicans) – and on the other by people who either want to make political capital (by abolishing human rights) or defend their status (by pretending that democratising the Lords would be problematic).

the prerogatives of Prince Charles

Que?

Almost all of our fundamental liberties are written down, either in statute (the ECHR is now part of statute law) or in legal texts which judges will consider.

The main and insuperable objection to a constitution written in a single document is that it will inevitably contain a rule restricting its own amendment. A national constitution should be flexible to allow changes based on changes in the nation; to adopt a single document constitution would be to ossify what it said and put obstacles in the way of its service to the people. All true constitutional reformers should oppose the idea of a constitution written in a single document.

1. ISTM “crisis” is being over-used of late and losing its meaning; “crisis” is in crisis.

2. “Judges, rather than politicians and the people, are now holding the government to account over our human rights.” – I don’t know what you mean by this; ISTM judges and politicians and people try to hold the government to account, and quite right too.

3. “In other words, the solution is to answer the question posed by Charter 88: “If we in Britain are the proud possessors of fundamental liberties, what can be the possible objection to writing them down?” – they are ‘written down’,perhaps what you mean is that we don’t have a single constitutional document; if you mean “inalienable” rather than fundamental, it is because the Crown-in-Parliament will remain sovereign for the foreseeable and won’t be told that it can’t do what it wants.

4. It’s inevitable that an elected second chamber will challenge the supremacy of the first, particularly if the means of electing representatives to the second chamber is viewed as more representative than that of the first. And what’s wrong with that?

UKliberty, if the election system used to appoint an elected House of Lords is seen as more representative then that emphasises the pseudodemocratic nature of the system used to elect the Commons. As you imply, there is nothing wring with that, except for the fact that I, as a UK citizen, am not happy to have an unrepresentative electoral system for either house. Charter 88 garnered such broad support because they proposed wholesale reform, not just tinkering. A written constitution was only one of their demands. The original Charter can be read on Wikipedia: http://en.wikipedia.org/wiki/Charter88

I think we can all agree that UK society is in desperate need of such ambitious reform to prevent it spiralling further into dystopia. I believe such reform would be supported by a majority of citizens. Unfortunately the prevailing pseudodemocracy doesn’t represent their wishes.

I, as a UK citizen, am not happy to have an unrepresentative electoral system for either house.

Hang on lads, I’ve got a great idea. Why don’t we have some sort of national referendum about what sort of electoral system we want? It would be awesome, and the progressive side is just bound to win.

A more powerful, democratically elected second chamber would make it much more difficult for the parties in the House of Commons to get laws onto the statute book and would in practice prevent the Government from governing effectively.

Absolutely brilliant!!!!

7 – After all we’ve just seen how beautifully legislative deadlock works over in the States. Who wouldn’t want an entirely disfunctional political system?

Tim J: if only. Instead, we ended up with a referendum between the status quo or a very minor change to the status quo that nobody really wanted, because the non-progressive party refused to countenance putting anything more significant to the electorate.

me

2. “Judges, rather than politicians and the people, are now holding the government to account over our human rights.” – I don’t know what you mean by this; ISTM judges and politicians and people try to hold the government to account, and quite right too.

Correction: people hold the government to account via the courts; judges don’t initiate cases.

Scaremongering based on the dysfunctional US system is just stupid, when (as with AV) we’ve got an excellent example of an elected upper house working well in an otherwise-Westminster-style government structure in Australia.

The Australian Senate, elected by PR, is more powerful and legitimate compared to the lower house (elected by AV, although FPTP wouldn’t make a significant difference) than the House of Lords is compared to the Commons, but far less powerful than the US Senate. There’s no US-style gridlock, and the primacy of the lower house is universally accepted.

11 – it’s not scaremongering, and I’m in favour of an elected Upper House. It’s simply that making a virtue of the fact that an elected upper house makes it much harder to govern doesn’t seem like a great argument.

If someone says ‘Brilliant, we could have legislative deadlock’, replying that legislative deadlock isn’t, in practice, a good thing isn’t scaremongering.

[3] Let me – for once – support David Boothroyd. An acknowledged problem with the US constitution is that it sets in stone the political issues of a particular moment in history. More generally, constitutions are written in periods of grave crisis: wars, revolutions or their aftermath. (America, France, Germany.) To take the American case as an example: religious freedom was written into it because its primary purpose was to create an effective Federal government out of the very different individual Commonwealths, all of which had their own, different, State religions. It was only later that this was twisted into the supposition that Church and State must be kept as far apart as possible.

And for a long time the English thought they had a written constitution, or as much of one as they needed – the Bill of Rights 1688. It is rather in eclipse these days: generations of historians have regarded it as entrenching the rights of the rich against those of the King and therefore boring.

Thanks for the comments, everyone.

With regards to the Lords, I’ll just weigh in and say I have no problem at all with an elected Lords challenging the “supremacy” of the Commons, because a second chamber is supposed to be a check and balance upon an excessively powerful executive, not just a place for amending laws started in the other place.

My point is that if we were to have a constitutional standoff – and remember, we had one recently over the AV referendum Bill – it would be precisely because our constitutional settlement is not designed for an an elected second chamber, in contrast to, as John B says, Australia’s settlement, which has had an elected second chamber for many years.

And because an elected Lords is needed and would challenge traditions, it is necessary to specify – yes, in one document – the relationship between not just the Commons and Lords (that is defined partly in statute) but between all the institutions of power in Britain. The very reason that we sometimes have constitutional confusion is because government has considered every political reform in isolation from the rest. That has to change.

By definition, a constitution considers all political institutions. That is why we need one.

“The main and insuperable objection to a constitution written in a single document is that it will inevitably contain a rule restricting its own amendment. ”

No, that is one of the most powerful arguments FOR a written constitution. At present a government holding even a 1-seat majority in the lower chamber, on only a minority of the public vote, could do what it likes and could even use the Parliament Act to override the Lords, elected or not.

A written constitution limits the government’s power to ride roughshod over our liberties precisely because the document enshrining those liberties cannot be easily changed. That is the point.

I should also add that any modern constitution should be made with the consent of the people, as well as by them (think a Constitutional Convention or Citizen’s Assembly).

So it would hardly be “imposed”.

I don’t have an objection to a written constitution in theory, but I suspect I would have fairly serious objections to anything that was written down in practice. At least with the current situation the bits I object to can in theory be changed relatively easily if there’s the political will to do so.

A written constitution limits the government’s power to ride roughshod over our liberties precisely because the document enshrining those liberties cannot be easily changed. That is the point.

Changed, no. Wilfully misinterpreted, yes. Have you seen some of the bizarre and mutually inconsistent interpretations of the US Constitution that are coming out of the courts – including the Supreme Court – there nowadays, for instance? People in power who want to be corrupt or oppressive will find a way to do so whether or not there’s a bit of paper saying they can’t.

(Even if you aren’t worried about that sort of thing happening over here, it does also mean that only those liberties which the drafters considered important at the time get protected – adding extra liberties becomes just as difficult as taking them away)

Elliot Folan, sorry, but I think you’re over-egging the pudding here:

A written constitution limits the government’s power to ride roughshod over our liberties precisely because the document enshrining those liberties cannot be easily changed. That is the point.

Governments are not immediately limited by constitutions and Bills of Rights, they are limited by politics and court cases. What I mean by this is that if those held in indefinite detention without charge in Belmarsh, for example, could have turned to the freedoms and rights in a constitutional document it would not have made one jot of difference to what actually happened, ISTM. Look at habeas corpus in the USA, it’s enshrined in the Constitution but this has not stopped the authorities from ‘riding roughshod’ over liberty; look at the case of José Padilla, held for three and a half years until political pressure finally saw him charged under civilian law, or other cases where people have been held for years without charge.

ISTM the important bit is not whether or not the document is seen as constitutional per se but the person’s access to justice, the enforcement of an outcome adverse to the government, and third-party support (not just from politicians but lobbyists, NGOs, the media).

Writing things down doesn’t render them safe from misinterpretation. I daresay that when Jesus said: “love your enemies” he had no meaning other than that stated. But ask any Christian today and they will come up with a hundred reasons why Jesus meant: “kill your enemies; torture your enemies; starve your enemies; impoverish and degrade your enemies”. A written constitution will be just as pliable to populist “reinterpretation”, expressing what the majority view of “ordinary” people want it to mean. Expect some people to be instantly denied human rights and treated like animals – or at least to become less equal than others.

@ Tim 8

After all we’ve just seen how beautifully legislative deadlock works over in the States. Who wouldn’t want an entirely disfunctional political system?

You don’t have to look as far as the States- there has been no government in Belgium for over a year.

Just think about it.

No authority to subject their citizens to new statutes dreamt up by some policy think tank, no more ill thought through attempts at social engineering, society effectively stuck in amber, and…… everything seems to have gone rather well.

Think about it. How many of the thousands of new laws introduced over the last 15 years have actually improved your life?

Exactly.

“Being unwritten, the constitution encourages a piecemeal approach to politics”.

And that is a bad thing? Gradualism is surely preferable to revolutionary or even merely comprehensive change. And it is the gradualist nature of the British constitution that has given us an such a stable and yet increasingly democratic polity.

Mike,

And for a long time the English thought they had a written constitution, or as much of one as they needed – the Bill of Rights 1688. It is rather in eclipse these days: generations of historians have regarded it as entrenching the rights of the rich against those of the King and therefore boring.

On the latter point (“…boring…”), ISTM you may have confused that Bill of Rights with Magna Carta (apologies if I’ve misunderstood) – Magna Carta is about the rights of nobles.

IIUC, the Bill of Rights is mainly about Parliament asserting its rights and limitations on the Crown. Remember that it does not enumerate all the freedoms and rights of ‘the subjects’ (incidentally, Protestants get greater protection); those that are written down are written down elsewhere (e.g. the common law). For example, Blackstone claimed that use of the right to a writ of habeas corpus was first recorded some three centuries before 1688.

Cameron really is an ignorant reactionary twit.

The Lib Dems ought to provide this idiot with an ultimatum – stop the childish knee jerk Daily Mail reaction or expect no support in the Coalition.

[21] No, the Bill of Rights was about asserting that the country was governed by “the King in Parliament”. And I don’t think it’s controversial to assert that Parliament in 1688-89 was the mouthpiece of the rich. Well, less controversial than suggesting that’s what it is to-day, anyway.

Is there any overwhelming reason why we need a second chamber ? Just strengthen the committees and abolish the Lords.

A single document written constitution would be awful as so many jostled to get their obsession or hobbyhorse included. Moreover, a determined government can always get around any apparent constitutional constraints. For example, the Bill of Rights outlaws a standing army during times of peace. Parliament just passes an Armed Forces Act every five years to get round the constraint and allow the UK military to be a legal standing army.

The US Constitution is indeed an admirable document, but the rights set out therein co-existed for decades quite happily with slavery. History is replete with examples of despotic states governed ostensibly by unimpeachable written constitutions. Ultimately a country’s political culture provides a bulwark than any document. Besides I’m proud of the Human Rights Act and can’t see the current political class putting forward anything likely to improve on it. I don’t believe Flashman even knows what’s in it.

“Moreover, a determined government can always get around any apparent constitutional constraints. For example, the Bill of Rights outlaws a standing army during times of peace. Parliament just passes an Armed Forces Act every five years to get round the constraint and allow the UK military to be a legal standing army.”

No, the purpose of a constitutional document is that it can’t be easily amended in that way! Most constitutions need a 2/3 majority to get around it, and even under FPTP few governments in recent years have managed that.

The whole point is that presently a government can get around constitutional constraints because what ones we do have can be overridden by Acts of Parliament. A written constitution could not be easily overridden.

On a purely technical note, I’m not sure a written constitution of the sort Elliot describes is even possible. Parliament is supreme (or Crown in Parliament) and cannot, definitionally bind its successors. There is no body or institution that can outrank Parliament and Parliament doesn’t have the ability to create one.

So even if a written constitution were enacted, it could be amended or repealed by a simple majority in Parliament. It’s the same with the current ‘fixed term Parliament’ bill. It may take a 60% majority to dissolve Parliament, but it would only take a simple majority to amend or repeal the ‘fixed term’ bill.

So you’d be reliant on moral suasion – this constitution is so important that we *shouldn’t* amend it unless there’s a super majority. And if it came down to it, I’m not so sure that moral suasion is enough.

@26 – You’re defining what a constitution is then pointing out that your definition would prevent easy amendment. Removing that definition the UK already has a constitution. It just happens to be one that is easily amended and not contained within one single core document.

As Tim J points out this would create a Catch 22 – an attempt to change the system under the rules of the old system in a way that the old system won’t allow until the new system is in place. It can’t be created and if it were forced in would have no legal leg to stand on.

Tim J: So we’d end up with yet another daft convention to work around that constraint, just like the rest of our Parliamentary system. For instance:
– Parliament votes to reduce its size to one unelected Lord, appointed by the Crown to the office of Secretary of the Constitution. In theory they could do what they liked to the Constitution; but in theory the monarch can refuse to give Royal Assent to a Bill, too. [1]
– A Constitution is produced by the Secretary which provides for the establishment of a “House of Commons” and a “House of Lords/Senate” who may create such laws as they feel necessary that do not conflict with the Constitution written by Parliament.
– The membership, election, etc. of the “House of Commons” looks suspiciously similar to the current one, but without the whole “absolute supremacy” bit.

[1] The monarch could and should, of course, refuse Royal Assent to any Constitutional changes not passed in the correct manner, and dismiss the Secretary to the Constitution for trying it and appoint a new one.

Another workaround would be a revolution/invasion. The monarch abdicates, leaves the country, and comes back with a ceremonial sword and flag. They then declare an invasion, which succeeds with no resistance, and retake the throne. As the conqueror of a defeated territory, they are then by convention at liberty to replace Parliament with any Constitutional arrangements they like as part of the declaration of victory (but to ensure the “no resistance” bit, these arrangements will of course be the ones that we wanted anyway)

The point that has been made, that Parliament would make the document and could throw it out, I think shows the idea to be essentially worthless.

This was not the case with the US constitution which was made by the states. Also in America the people are officially sovereign, and as the nation was forged out of a revolution, there was a need to legitimise the right of the people over the government, and the Constitution and the Bill of Rights are intended to limit the power of the government. All that said, the American experience shows that a piece of paper is not enough to stop the powerful overstepping the set limits.