Constitutional Reform

Lord Chief Justice Woolf has stated that he believes we should consider "establishing a written constitution". In a speech given to Israeli lawyers, Woolf indicated that he is coming to realise that our flexible, unwritten constitution provides little protection from a government with a large majority determined to make major changes. England's most senior judge is now beginning to recognise a truth that many of us have known for many years.

Woolf's conversion to the constitutional path is perhaps less total than it may appear. Not only is his speech littered with "maybes" and "possiblies", but it was delivered to a small audience, in another country. Only the Telegraph picked up the story. Woolf seems to be playing both sides here - making suggestions to the government, perhaps as a bargaining position to tone down some of the constitutional changes they are rushing through, but not actually quite standing up in public just yet.

Yet the dangers he is coming to recognise are very real. Our unwritten constitution is praised by the establishment for its flexibility. While this may be very convenient, allowing the judiciary or parliament to reach decisions that are (to them) obviously correct without worrying about detailed constitutional niceties, it does mean that there is little to stop a government taking liberties. Indeed, our current government, elected on well under half the vote, enjoys such a large majority that they have no problem pushing through sweeping changes - the House of Lords, the Lord Chancellor, and, according to another report this week, the annual Queen's Speech are all changing radically, with little consultation with Parliament, let alone the rest of us.

It isn't particularly the nature of the reforms that is worrying. The Lord Chancellor is too partisan, being these days essentially a political appointment, equivalent to any cabinet minister. The House of Lords is long overdue for reform, bringing a more representative, democratic body into existence to curb the worst excesses of government. A single legislative program for an entire five year parliament makes a lot of sense, and anything that reduces the importance and prestige of our archaic monarch can't be all bad.

The problem is the lack of consultation. While many reforms are desirable, even necessary, the ease with which they can be made should scare us all. However easy it is to pass beneficial reforms, it is equally easy to pass repressive ones. Fear over terrorism, crime, and migration have already placed our freedoms under threat. Without robust constitutional protection, our rights and freedoms are greatly at risk. There is nothing to prevent a determined government with a sizeable majority from introducing any change to our rights and institutions, with no debate.

To see the danger of the lack of a robust constitution, you only need to look to Russia. This week, President Putin's United Russia party has secured domination of the parliament with just 37% of the cast vote. Yet, he is expected to use this minimal mandate to change the constitution, granting himself additional powers, and removing the limit preventing him from seeking a third term as president. This is but the latest in a frighteningly long list of reversals. Democracy is fragile, relying on checks and balances to prevent abuse by a small elite. These protections are best implemented in public, where everyone can see the protections, and where abuses can be easily understood.

Framing a written constitution will be a difficult task. We can learn much from other countries. The language needs to be clear and unambiguous, as far as that is possible. The reasoning behind different rights and structures needs to be built into the document. We need to consider not just our current status, but future possibilities. Above all, we need a national debate on what rights and responsibilities a citizen of Britain should expect. A written constitution is not beyond our ability, and is the only way in which freedoms and institutions we consider valuable can be preserved from vandalism from some future government.

Lord Chief Justice Woolf's conversion to the cause of the written constitution, however tentative, is welcome. If we are to win this argument, we will need people like him on our side. If not, we will end up with a written constitution anyway. Europe is happily creating one, regardless of our willingness to enter the debate or not. That the debate on this constitution has so far amounted to little more than the usual Brussels-bashing says much for the Europhobia whipped up by our tabloid media. But whether in Britain or Europe, it is essential that we both protect our values with a written constitution, and that the values we protect actually reflect those we hold. And that requires a nationwide debate, sooner not later.

Graham Robinson. 10th December 2003.

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