14 November 2021 — Goodlaw Project
The UK may be the only democracy in the world without a written constitution – a ‘higher’ law or code to which all others must conform.
Until now, we haven’t seen the need for binding rules. We’ve relied on self-restraint. We’ve trusted politicians to behave themselves. We’ve assumed that only ‘good chaps’ – as Lord Hennessy memorably put it – will rise to high office. And those good chaps won’t need to be told how to behave. Being good chaps, they will know what the rules are and they will obey them.
But what happens if the people running the show aren’t good chaps?
What you get is what we have. Bullying of regulators. Stacking of boards. Challenges to the independence of the media. Criminalising civil protest. Restricting the right to vote. Attacking the independence of MPs. Challenging the judiciary, curtailing its powers and reversing its decisions. Abandoning the Convention on Human Rights and Fundamental Freedoms. There are well-sourced rumours of political interference in operational policing decisions. And, let us not forget, we have a Prime Minister who unlawfully suspended Parliament.
All of this is before we start on the tidal wave of sleaze engulfing the Government: VIP lanes for the politically connected; vast payments to politically connected middle-men; procurement fraud going uninvestigated; failures to declare conflicts of interest by MPs; and the misleading of Parliament by the Prime Minister.
Sitting above all of this is a set of problems, arising not so much from how some politicians behave but from how the world now is. Our politics feels more divided. We seem to have less in common, and the idea we all want the same things for the country feels less secure.
The truth is, the world our rules were made for no longer exists.
What does this mean for the idea that Parliament is supreme – has absolute power? Is this conception of democracy consistent with a first-past-the-post system that can, and often does, give unconstrained power to a Government with a minority of the popular vote? And if MPs are coerced into voting with the Government, who gets to play the constitutional trump card of Parliamentary supremacy? MPs accountable to voters, or the Executive?
At the heart of all of this is a simple truth: you don’t need a constitution to protect you against good chaps because they’re good chaps, and a constitution that can’t protect you against bad chaps is no constitution at all.
Meanwhile, what remains withers and weakens. What is left is less and less able to command public confidence. Trust in politics – and ultimately in democracy – is the victim.
A responsible Government would respond with a process for a new British Bill of Rights. A smart Opposition would demand one.
Jo Maugham – Good Law Project