,
23 tweets,
4 min read
Read on Twitter
This piece by @sc_laws deserves a lengthy response. But some shorter reactions may, nonetheless, be helpful.
1. It is an underlying theme of the piece that the UK’s “political constitution” delivers more responsive, or better, government than countries with a higher norm constitution setting out their basic political rules and fundamental rights.
That is - certainly at the moment - quite a surprising claim. Is the U.K. better, or more responsively governed than, say, Germany, Ireland, Sweden or Holland? To put it gently, the claim is not self-evident.
Indeed, even without Brexit, any reader of eg King and Crewe’s “The Blunders of our Governments” might wonder whether the U.K. system is working. Poor legislation passed with inadequate scrutiny is at the root of much of this.
Or try the @instituteforgov paper on policy churn in eg criminal justice or further education. Symptoms of a political system that is working very badly.
And, of course, Brexit.
Standing further back, Richard Tombs makes a powerful case that it was the constitutional revolution of the 17C made the U.K. by far the most effective European Power in the 18C: Parliament could respond quickly and effectively to crises and (for example) raise taxes.
But it would be rather harder to make that case today.
2. The piece understates the requirement, for a “political constitution” to work, that politicians feel themselves bound by understandings, conventions and precedents. There is a strong case that this is much less true than it was.
Indeed, Stephen has been at the forefront of those criticising Cooper/Letwin.
But if you think that the HoC is proceeding dangerously here, doesn’t that illustrate the weakness of a system that relies to such an extent on common but ultimately unenforceable understandings and conventions?
Moreover - and I think Stephen accepts this - the increasing fractiousness of the HoC (more rebellious MPs/distance between MPs and leaders now chosen by the wider party) places past understandings of HoC/Govt relations under serious strain.
The position is perhaps analogous to the way in which self-regulation and common understandings are now thought inadequate to regulate professions and other areas of economic life.
Good chaps are no longer good chaps: or at least, you can’t rely on their being so. Enforceable rules now replace conventions and understandings.
That process - though welcome in terms of transparency - is not wholly good. Rules can produce a culture where “does this comply with the rules?” replaces “is this right?”. But it is probably inevitable in a diverse society where actors are conscious of their legal rights.
3. Legitimacy. Stephen nods to this at the end of the piece, where he more or less concedes that much public are unconvinced by our current arrangements. But the problem is I think more fundamental than he acknowledges.
We are - like it or not - in a more diverse, rights-based culture. In that culture, people will ask “what gives you the right to do this/take away a right I had?” The answer “an unwritten constitution handed down from medieval times” now sounds unsatisfactory.
The advantage of a written higher norm constitution is that it provides a basis for law-making, and the boundaries of law-making, that is (in my view) more transparent: and a sounder basis for popular acceptance and legitimacy in a rights-conscious age.
And if the constitution is - as it is in Ireland - changeable by referendum, then there is the prospect that people feel themselves to be authors of, rather than subjects of, their own constitution: and the evils of a constitution that is too hard to change can be avoided.
That said, Stephen is right to point out the challenge of codifying the existing constitution - let alone writing a new one.
But states have done this when they wanted to make a break with the past. Ireland is again a recent and close example.
The question is whether we are now dissatisfied enough with our current arrangements to make that move.
I increasingly believe that the answer should be - and is - “yes”.
