Time for change on our terms!

Some of the runners in the deputy leader’s election within New Labour have mooted an interest in revising the constitution of the UK. Of course New Labour will never let this happen, at least not to their detriment when it comes to imposing draconian laws on the ordinary working man and woman.

So, despite this, if we are to ensure that ordinary working people are protected from the likes of New Labour now and in the future, should we not be debating whether there needs to be a fundamental restructuring of our constitution? Indeed, do we actually have one today based on how it operates in reality as opposed to what scholars and academics think?

In this short article, I will discuss what we actually have and how it is being manipulated. I will also look at issues we should be debating now.

We need to look at what we do have by way of a constitution and thereafter how it works today.

The UK constitution has no fundamental written source, and is ever changing. It relies much on unwritten convention. This results in what has been described as an electorate that are politically sovereign. In reality, Parliament is legally sovereign and our constitution is an uncodified body of law which constitutes the rules for how the country functions. It consists mostly of written sources (not a document(s) such as the American constitution), including statutes, judge made case law and international treaties.

A constitution should impose limits on what Parliament could do without a legal majority. To date, the Parliament of the UK has no limit on its power other than the possibility of extra-parliamentary action (by the people) and of other sovereign states (pursuant to treaties made by Parliament and otherwise).

What prevails is a system that uses of the parliamentary party’s lobby fodder to push through the unacceptable, such as de-listing the Commons from freedom of information legislation.

What we have seen at under New Labour is an abuse of the constitutional system we supposedly have in this country with decision making removed from the collective responsibility of the cabinet (when is the last time any of them retired following a political/ministerial error) and ultimately either no scrutiny by the commons, or railroaded, knee jerk legislation pushed through by use of pagers to call the faithful to vote.

Today we are more likely to be subject to laws that started off on a settee in the PM’s office, or in a focus group meeting where what sounds good is advanced as being good if it can be pushed through in spite of our so called constitution.

On top of this, we see attempt after attempt to bring in laws that avoid even this limited scrutiny combined with constitutional skulduggery by going straight to the Queen seeking the archaic royal prerogative such as was granted to New Labour to crush the courts judgment in 2000 when the Chagos islanders won a historic victory in the high court, which ruled their expulsion from Diego Garcia was illegal.

So what should we be looking for?

The first step could be a codified constitution setting out who could do what and providing a clear separation of powers between the normal division of branches of government into the Executive (in our case the closest we have is the Prime Minister and his Cabinet), the Legislative (Parliament), and the Judicial (Courts) to avoid situations such as we have seen recently with the Attorney General stopping the investigation of crimes for political reasons as with the BAE bribe allegations where Blair is alleged to have personally intervened.

Also, with a written constitution we could set in stone the ability of the courts to intervene or for the citizen to ask them to do so on their behalf. The present system of Judicial Review can only ask the decision maker to go away and reconsider their actions. The exception we see to this system at present is the court’s ability to overrule on Human Rights matters.

The incorporation of the European Convention on Human Rights into UK law has granted us the citizens specific rights and gives the judiciary some power to enforce them. Courts can encourage Parliament to amend legislation by a "declaration of incompatibility," and courts can refuse to enforce or "strike down" any incompatible secondary legislation.

However, any actions of government authorities that violate these rights are only illegal except if carried out pursuant to an Act of Parliament. A written constitution could specifically prevent this happening thus placing rights before political ambition.

Ironically, one of the best examples of a written constitution is that of the United States of America as referred to above. It has clear separation of powers and specific rights that are codified and set out for all to see with a Supreme Court to enforce them if required. Not all rights under the US convention will meet with everyone’s approval (such as the right to bear arms), but they have a mechanism for revising the defined rights under their system. Maybe we should ensure that the ability to revise, remove and add rights is written into any proposed convention.

What is clear is that our present constitution is failing us due to the present regime of spin and be damned with the PM sending the children of the working class off to war (because he can for whatever reason he wants under the current system) without as much as a nod to the millions who took to the streets in protest. Even an attempt under our current system to challenge the decision to go to war was unsuccessful as seen recently in the case of R (Gentle and Clark) –v- The Prime Minister and Others [2006] (which may be successfully appealed).

It is about time we looked at the revision of our constitution before it is hijacked by capitalists who will use any proposed constitution to further erode the rights of working people, whether here at home or in some foreign field where they have been sent to die.