Richard Gordon is an eminent Queen’s Counsel practising in public law, and a prolific author. In this book he argues that a written Constitution is essential if Britain is to have true representative democracy. The book also seeks to provide a focal point for wider debate about constitutional reform. Repairing British Politics is divided into two sections. The first sets out arguments in favour of a written constitution and the most common objections to it. Written in clear, jargon-free style, it provides a good summary of the pros and cons of parliamentary sovereignty – a feature of current arrangements which Gordon wants to jettison. The second contains a well-crafted working draft of a possible model for a Constitution, with explanatory notes. This book will enable even those unfamiliar with the complexities of the current system to discuss, and formulate views about, the issues.

The author’s case for a written Constitution is that we should move to a position where the People are sovereign. The draft Preamble to the Constitution concludes ‘We the People of the United Kingdom therefore establish and adopt this Constitution for the United Kingdom’. Clause 2 provides that ‘National sovereignty shall vest in the people who shall exercise that sovereignty through delegation of the powers as set out in this Constitution to their representatives and through the other provisions of this Constitution. . .’. There would be a transition from parliamentary sovereignty to Constitutional supremacy. The intention is that ‘the People’ would be, and would know that they were, sovereign, and that state power would emanate from them, as would the government, MPs and other state officials.

The assumption, presumably, is that as a result state bodies would behave differently. They would acknowledge that they depend upon this popular delegation of power (though there is no provision for the People to take it back save by rather difficult constitutional amendments), and the People would therefore have continuing influence over policy. Presumably the People would also have different expectations of government, MPs and public servants under this arrangement.

This is problematic, since those in power might take advantage of the new arrangement to undermine the notion that they owe leadership and should take responsibility for their decisions. It would not be positive if the tables were turned so that when policies went wrong a government were able to blame the People. We should not forget Birch’s insightful conclusion (Reference Birch1964) that the most dominant public pressure in the UK has been towards responsible (prudent) government, not representative government.

The draft Preamble to Gordon’s Constitution is impressive in its summary of ‘where we are’ and why the Constitution should be adopted. It recognises that the peoples who have come to these islands over the centuries share a common belief in and aspiration towards principles of liberty, fairness, tolerance and economic wellbeing for all; the constitution has developed piecemeal and without systematic review of its effectiveness or its principles; the nature of society is multicultural, its citizens practise a variety of faiths, as well as having decentralised legislative bodies in Northern Ireland, Scotland and Wales, with the result that the country’s different backgrounds, cultures, faith and beliefs are no longer best reflected in present constitutional arrangements (this particular passage is not well expressed); and that for these reasons a new Constitution is to be adopted so as to establish clear constitutional and representative democratic principles for the exercise of power, and thereby to ensure the fullest protection of the human, political, legal, social and economic rights and general welfare of all the people of the UK and all those otherwise subject to its laws.

The main other proposed changes are as follows. The UK would be a secular state. The two chambers of Parliament would be the House of Representatives and the Senate (70 percent elected, 30 percent appointed by an elected Senate Appointments Commission). There would be fixed-term four-year Parliaments. If the Supreme Court found a bill to be unconstitutional, the monarch would not be able to give royal assent to it. The House of Representatives would be composed of members elected by a form of proportional representation, each constituency returning an equal number of male and female members. Voting would be compulsory. The elected body of the Senate would be elected by a form of PR. Prerogative powers would be transferred from the monarch to the Prime Minister so that many of them would be subject to judicial review, and some to parliamentary veto. Political parties would be subject to regulation to secure the constitutionality of their activities. The Supreme Court could receive references from lower courts on issues of constitutionality and make declarations of unconstitutionality which would set aside laws. A detailed European Convention-plus Bill of Rights would come into effect, with new provisions for the protection of social and economic rights. And (very novel) a Citizen’s Branch consisting of one man and one woman from each constituency, chosen at random to serve for one year, would be established. The Branch would elect a Council of ten from among its members. This Council’s functions would include powers to seek declaratory relief from the Supreme Court in relation to political parties, to seek advisory opinions from the Supreme Court on issues of constitutional interpretation, to recommend constitutional amendments and to take legislative initiatives. Existing constitutional legislation would remain in place unless and until new legislation is passed, unless the existing measures are incompatible with the new constitution. There are no provisions about devolution.

Thus Gordon’s draft Constitution covers most topical constitutional issues. The draft proposes solutions to each of these, with reasoned explanations. It would therefore provide a useful focus not only for public and political discussion, but also for the teaching of British constitutional law and politics at many levels.

What progress will be made in this direction will partly depend on whether the UK has reached a ‘constitutional moment’.Footnote ¹ The preface to the book claims that the constitutional crisis of 2009, sparked by the MPs’ expenses scandal, led rapidly to the questioning of our entire political order, at the heart of which lay an absence of accountability at the core of government. My own sense is that the crisis was in reality only about expenses and the trustworthiness of MPs. Even the many MPs who did not mis-claim expenses have not been good at calling government to account for many years. It suited some – including parliamentarians – to seek to deflect attention away from expenses and to capitalise on public anger about ‘the system’ by linking the crisis with wider arguments about constitutional reform. One positive outcome was the House of Commons’ agreement in principle with many of the recommendations of the Wright Report (2009) for reform of House of Commons procedure, such as election of select committee members and their chairs by MPs, not the party whips, and the establishment of an independent ‘business committee’. The former proposal was implemented by standing orders before the prorogation of Parliament in April 2010 for the general election. Provision was also made for each party to elect its share of committee members. Unfortunately, a business committee was not established, as the Leader of the House, Harriet Harman, did not find the necessary 90 minutes of House of Commons’ time. In the post-election Parliament, the coalition agreement included an undertaking to bring these proposals forward in full, starting with a committee for the management of programmed business to include government business by the third year of the Parliament.Footnote ²

In truth, these reforms, though desirable, have nothing to do with the expenses scandal. Indeed, given the public mistrust of MPs that the scandal engendered it is unlikely that the general public would think that enhancing the powers of backbench MPs is an obvious next step in improving the constitution. What the reforms may do is enhance the status of MPs in relation to government. That may be where the interests lie of parliamentarians as a group (which most of the time they are not), why backbenchers eventually supported these reforms, and why the Labour government was not enthusiastic about these changes. What the public will make of this remains to be seen. They may well not notice.

The post-election coalition formed in May 2010 claims to be committed to a ‘new politics’. Further reforms, including fixed-term five-year Parliaments, a referendum on the introduction of the Alternative Vote for elections to the House of Commons, and a wholly or largely elected upper chamber appear to be in the pipeline.Footnote ³ But this does not mean we are at a ‘constitutional moment’.

The reason radical constitutional reform usually needs a ‘moment’ is that moments create urgency. Otherwise, once wide debates take place about general constitutional reform, participants will come up with detailed ‘shopping lists’.Footnote ⁴ In particular, I anticipate that a non-urgent review of the constitution would generate calls for abolition of the monarchy and disestablishment of the Church of England, which would cause far more heated public and press controversy than, say, the introduction of PR for elections to the House of Commons, reform (or abolition) of the House of Lords, or a new British Bill of Rights. These three are, in my view, far more important and urgent than questions to do with the monarchy and the Church of England. The more important reforms may become impossible if hotter topic issues cannot be resolved – in the absence of a ‘moment’ such as those which produced, most recently, the South African Constitution, or in the past the constitutions of former colonies or Germany after the second world war.

A move to a ‘We the People’ constitutional narrative would transfer great power to the Supreme Court. But what effect would it have on public attitudes? Would it mean that British citizens were less concerned about whether state power was exercised legitimately? Would it weaken the cynicism that many citizens feel towards their constitution, especially politics and politicians?

The expenses scandal has caused a crisis of legitimacy for MPs. In this context ‘legitimacy’ is a peculiarly English preoccupation.Footnote ⁵ In continental countries, exercise of power is likely to be considered legitimate if it is lawful under the Constitution or the Basic Law, reflecting the fact that the Basic Law or the Constitution itself are considered appropriate in many states. In the UK, lacking a Constitution, the fact that a body is elected, accountable to Parliament or is exercising power lawfully is not sufficient to make its exercise of powers legitimate in the eyes of the informed public. The constitution is not only about rules; it is also about the psychology, culture and attitudes of politicians, the press and the public. The prevailing culture in Britain is deeply sceptical of authority. The development of a vast array of independent quangos in the UK over the last thirty years shows how it is often considered inappropriate for politicians to exercise certain powers: hence the creation of the Bank of England monetary policy committee, the Judicial Appointments Commission, etc. On the other hand, criticisms of quangos often imply that it is not legitimate for independent appointed bodies to exercise powers because those powers should be exercised by ministers accountable to Parliament or by elected local authorities. Both attitudes demonstrate scepticism about those who exercise power.

A question then is whether switching to a written ‘We the People’ constitution would stop people asking whether the exercise of power is legitimate and cause them to concern themselves only with legality. My own view is that the British, or at least English, culture runs too deep to be changed merely by a new Constitution.

A move to a ‘We the People’ Constitution would seek to alter the constitutional narrative – or to introduce one for the first time: there is no explicit constitutional narrative in the UK. But this does not mean that there are no UK or English constitutional narratives: there are a number of them.

One is that in 1688 in the Glorious Revolution, sovereignty in the sense of absolute power was transferred from the monarch to Parliament, and this was a good thing as it required government to be carried out with the consent of the legislature. Thereafter the Commons became democratic with the passage of the Great Reform Act and subsequent Representation of the People Acts, and the power of the Lords was reduced by the Parliament Acts, thereby reducing the dangers of abuse by a sovereign Parliament. Of course, that narrative omits to admit that the executive has captured the House of Commons. But to the extent that the narrative serves to legitimate constitutional arrangements, British or English history lies at the root of its legitimacy.

An alternative constitutional narrative, and one which to my mind is closer to reflecting the mentality of the British or English, is that the terms on which the people, or powerful elements among the people, are prepared to tolerate government have changed over the last millennium. The system has evolved to its present form because it has adapted to those pressures. The starting point of the narrative might be that the English/British reluctantly accept that they need to have a government. With Magna Carta, the terms – imposed on the King by the barons – included guarantees of access to justice and trial by peers. In 1688, with the Glorious Revolution, the terms changed so as to subject the exercise of monarchical/executive powers to parliamentary consent – e.g. no taxation without the consent of Parliament. Jumping forward, with the Great Reform Act 1832 and subsequent Representation of the People Acts, the terms for the toleration of government required that the House of Commons be elected, in due course by universal adult suffrage. In 1911 and 1949, public opinion was in favour of the reduction of the powers of the House of Lords. In 1998, a new Parliament and Executive were granted to Scotland, in response to pressure from that country. Much of British constitutional development has been a result of ‘bottom-up’ pressure.

Of course, not all UK constitutional reforms have been responses to public pressure: the Human Rights Act is a counter-example. Overall, what can be said, however, is that constitutional development has been evolutionary,Footnote ⁶ as institutions of government, especially the Crown/executive, have adapted to new pressures. Anthony Barnett aptly used the phrase ‘patriotic acquiescence’ at the launch of this book to describe this attitude. But government with consent is very different from government by delegation, which is what Gordon’s book argues for.

The written constitutions of many countries begin with the recital that ‘We the People’ or equivalents are creating the constitution. Such interpretations of a country’s constitutional history are essentially creationist rather than evolutionary. To paraphrase the Old Testament, ‘In the beginning the People created the State. . .and the People said “let there be law” and there was law. . .And the People saw that it was good’.Footnote ⁷ My question is whether adopting a creationist text would actually make a difference. Would the English or British suspend their habits of mere patriotic acquiescence, suspicion of politics and politicians and concerns about legitimacy just because the text recites that We the People created politics and gave politicians their power? Would politicians behave better because they operate under this written Constitution? I very much doubt it.

Of course, one aspect that would change is that the Supreme Court would have the power to strike down laws that were incompatible with the Constitution. Gordon deals with the literature and case-law on democracy and majoritarianism versus judicial supremacy succinctly and clearly; my own view is that, given the absence of a Constitution, the most realistic justification for the current refusal of the courts to disapply provisions in an Act of Parliament (save in relation to European law) is that the doctrine of parliamentary supremacy represents a sensible stand-off between the courts and the executive. It enables these institutions to respect one another and to refrain from hostile competition, a pragmatic compromise. If the courts were to depart from their orthodox position and strike down a statutory provision, they would run the risk of a confrontation with government from which the courts would emerge with their authority damaged. Let us suppose, for instance, that the government had recently pushed through Parliament an Act which, among other things, subjected unpopular minorities (e.g. illegal immigrants or paedophiles) to severe restrictions on their freedoms, and that a court were to refuse to give effect to that measure on the ground that it was contrary to common law principles of access to justice and equality. My sense is that government would complain – and most people would see their point – that the courts had unilaterally changed a legal rule without the consent of Parliament (the rule being the doctrine that an Act of Parliament is the highest form of law), and that it was illegitimate for the court to do so as it was not elected.

Parliament, however, might not be so hostile to the Court’s decision in this scenario, especially since neither House has its own corporate ‘voice’ or identity, and both Houses contain members of opposition parties who might well have opposed the measure in question on broadly ‘constitutional’ grounds and be rather relieved that a court had struck it down. The conflict in a common-law strike-down situation would be strongest between the courts and the executive. Given that the strike-down in question would be likely to protect members of unpopular minorities, the press would be against the judges and for the government. The government might refuse to obey the court order; the court might then have to commit the minister for contempt; the Minister of Justice might order the prison governor to release the committed minister; the court might commit the prison governor for contempt. . .This is an unappealing scenario.

If a ‘We the People’ Constitution were adopted, would the government, the press and the public be content for a court to strike down the offending provision on the new ground that it was contrary to the Constitution? I very much doubt it. After all, the fact that the American constitution allows for striking down has not prevented the debate about majoritarianism from raging there, for instance in the writings of Jeremy Waldron (Reference Waldron2001). The British government would have to have undergone an epiphany if it came to accept that it was appropriate for the Supreme Court to strike down even recently passed statutory provisions. The assumption that lies behind this book, that the People – let alone the government – would subscribe to this new Constitution and accept judicial review of legislation as legitimate when there is no constitutionally urgent moment is unconvincing.

This does not mean, of course, that a written Constitution would be negative, only that not too much should be expected of it. My own sense, however, it that it is not going to happen. There is quite simply not a sufficiently intense constitutional moment to override the very strong vested interests, especially in the two main parties, in the current arrangements, and the cultural imperturbability of most British people. The British would do better to expend their energies and resources on other, less unachievable, projects, including incremental, opportunistic reforms to the electoral system and parliamentary procedures.