Why Britain must deliver enduring constitutional reform

August 4, 2009

lester– Lord Lester of Herne Hill QC is a leading constitutional and human rights lawyer. The views expressed are his own –

Almost alone on the democratic world, we British have no written constitution protecting our basic civil and political rights. We have no constitutional charter defining the scope of the powers of the legislative, executive and judicial branches of government or the relationship of these branches with the European Union (EU). Parliament struggles to assert its power while the government uses its ancient monarchical authority — that is the prerogative power vested in the Queen — to exercise its executive powers.

There is now widespread discontent with our system of government, and a massive loss of confidence in politics and politicians.

The early days of the “New Labour” government were times of promising reform. Major changes such as devolution for Scotland, Northern Ireland and Wales, removal of most hereditary peers from the House of Lords, abolishing the role of Lord Chancellor and creation of a Supreme Court were accompanied by measures directly empowering individuals, in particular the Human Rights Act and Freedom of Information Act.

Since then, despite much talk of further reform, the government has only tinkered round the edges. As the House of Commons Justice Committee’s recent report noted “’unfinished business’ has been the enduring motif of many of the strands of constitutional renewal” during the lifetime of this government.

Why has the government failed to complete its ambitious constitutional reform programme? The Blair government was half-hearted and bogged down in controversies over the Iraq war and concerns about security and terrorism. When Gordon Brown took over in 2007, he seemed keen to invigorate the constitutional reform process with the launch of the Governance of Britain agenda.

But, the failure to drive forward this agenda with any speed or sense of purpose or imagination meant that ministers became lukewarm or hostile to any further meaningful reform. They lost any appetite for radical change until the scandals about MPs expenses and dodgy peers became part of a media frenzy. These scandals have resulted in a further public loss of confidence in our political system while reviving the debate about constitutional reform.

Rather than using rushed and inadequate legislation, it is surely time for a proper debate about our constitutional future and for coherent and enduring constitutional reform. We should put in place a modern democratic system of government in which ministers are made accountable in practice to Parliament and a new constitutional framework is enacted with the consent of Parliament and the people.

The best way do this would be in a fully comprehensive written constitution setting out the relationship between the different branches of government, between the devolved administrations and Westminster and our relationship with the EU. It would specify the composition of the Upper House combining democratic legitimacy with expertise. The constitution would place the source of prerogative powers firmly in Parliament and make the exercise of executive powers subject to parliamentary control.

Following the South African constitution, it could also specify the basic values and principles underlying good governance and administration. It would need to combine parliamentary and popular sovereignty and the process of securing widespread consent would call for careful consultation.

A written constitution would also contain a Charter of Fundamental Rights and Freedoms expressed in the language of a constitution rather than a treaty, building on the protection given by the European Convention on Human Rights and the Human Rights Act 1998, but adding additional protection against the misuse of public powers.

Meanwhile, there is no reason why we could not have such a Charter without waiting for a new constitutional settlement.


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I agree very strongly with there being a need for a written constitution with a charter of fundamental rights and freedoms, one which in particular protects us from an over-powerful executive that comes more and more to act like an absolute monarchy.

However I would add two things in particular. Firstly, that there need to be explicit rights and freedoms not just for individuals but also for organisations independent of government, such as professional organisations.

Secondly, the operations of government are dependent upon the actual capabilities and qualities of the people in power. The constitution needs to specify the requirement of stringent tests of personality functioning, and of relevant intellectual competence and knowledge, for any politician, either in power, or standing to be elected to a position of power. Such tests are needed to minimise the risk of the psychopathic or otherwise personality disordered, and the incompetent, exercising power. They would also assess the deterioration of psychological and ethical functioning that can be brought about by being in power.

Posted by Ian Wray | Report as abusive

I wonder if the majority of the population would agree with your use of the word “democracy” in paragraph 7, which seems to imply that you think Parliament = the people!

Regarding rights, are we not more fortunate NOT to have them written down? I lack Ambrose Bierce’s wit, but can agree with him that my rights are precisely what society currently says they are – no more and no less. (Most of the “rights” I have under the European Coventtion, for example, I can’t exercise without infringing someone else’s. Or vice versa. That may be good for barristers, but it’s lousy for the rest of us!) And society surely needs the flexibility to change them over time, which means it is better not to cast them in stone.

The USA was the first country to enact universal human rights in law and one of the last first world countries to enact them in practice. A written bill of rights clearly guarantees nothing in terms of the people who are supposed to enjoy those rights. Indeed, to the extent that it might make us as litigious a society as the USA, and allow barristers to grow fat on the public purse, it could be seen as positively harmful.

Posted by Ian Kemmish | Report as abusive

There is one basic flaw to this pitch, which is obviously intended to embed us further in and under the total control of the EU and that is – before Labour came to power the constitution worked perfectly OK as it had done for centuries, the House of Lords was a very good check on the politics of the Commons as they had a freedom of views and independant wealth without having to follow party lines.

In 1997 Labours first moves were to get rid of the Lords as they could not control them, start to dismantle/change the existing legal system and structure where it limited their action and the passing of power to the EU, and start an ongoing programme of social engineering which has now lasted for over ten years, wreaked our educational system, our industries and the Union of Great Britian.

The last thing we now need is to start down the path of producing a written constitution from the current mess, we need instead to undo the vast amount of damage that has been done to our country and our freedoms by repealing a large majority of the bad laws that have been bought into being with criminal penalties for virtually any small transgression.

Posted by Brian | Report as abusive

Only someone who has spent too much time socialising with other members of the London elite could still claim that the “Human Rights” Act has “empowered individuals”. Out here in the real world it is seen as a deviant’s charter that has trashed our English traditions of fair play and common sense, and has only empowered lawyers.

Posted by Oliver Chettle | Report as abusive

I tend to agree with the views of Brian above. We desperately need less government not more, furthermore we need to place more emphasis on individual rights to possession of property and chattels. In the present wonderful world of socialism these articles are seen as expendable and unworthy of meaningful protection. Much the same as our individual right to safety.

I would rather see a Human Duties Act, this would change the burden of proof from the victim of a crime to the perpetrator. Difficult yes, but not impossible.

Posted by AnthonyP | Report as abusive

An excellent piece, but first step we need to take will be the hardest. We must have a democratically elected head of state with appropriate terms of reference. We cannot progress reform while still retaining a monarch, crowned by accident of birth.

We can discuss the shape and form of future legislatures and their terms of reference. We can discuss their terms of reference. We can discuss and formulate a constitution for the people. But unless we progress to a democratically elected head of state and abolish the monarchy, our best efforts will be compromised by the “accident of birth” principle that blights our so called democracy.

Over two hundred years ago, our cousins and kinfolk in the American colonies were able to create both a constitution for the people and terms of reference for a democratically elected administration.

Two hundred years later, we must surely be capable of doing the same?

But the first step will be the hardest.

Posted by Ian Fitzsimmons | Report as abusive