Demanding a Written British Constitution

Charter 88: The New Left’s Dernier Cri?

by Brendan Clifford

Charter 88, which has been given considerable publicity by the apparatus of the state it declares to be undemocratic, is an exercise in political futility and historical ignorance.

Its basic demand is for a written Constitution. After all the intellectual gymnastics and the hot air, after the “theorising of theoretical practice” and the “hegemonising of the ideological state apparatuses”, after the Marxism and the Leninism and the Gramscism and the Korschism and the Althusserianism, we end up with the fetish: a written Constitution.

For twenty years the New Left authors of Charter 88 applied their considerable energy and intellectual ingenuity to shifting the British Labour movement out of the “empiricist tradition” which they imagined to be the obstacle to an inconceivable but deeply felt revolutionary transformation. What they actually achieved was to make the Labour Party unelectable. And now the magical formula for raising themselves out of the hole they have dug themselves into is that Britain should pick up the cheapest bit of trivia in the political bazaar: a written Constitution.

Calvin and Rome

Anthony Barnett, trail-blazer for this counter-(1688) Revolution, writes in the New Statesman (December 2):

“many of those who are distinctly Scottish and those who are self-consciously Catholic now argue for a written constitution … When the inheritors of Calvin and Rome agree, then something really has changed in the British order of things.”

But Calvin and Rome always agreed that peoples should be bound up in written Constitutions judicially administered. Both had comprehensive schemes for the maintenance of social order, and did their damnedest to sew society up in them.

If Cromwell and the Independents had not in 1648 overthrown the Parliamentary majority by force, England would have got the Covenant as a written Constitution, and maybe three-and-a-half centuries of liberal disorder would have been averted. And if James II had not been overthrown in 1688, England would very likely have got a written Constitution in the very effective form of a Concordat with Rome, and three centuries of disorder would have been averted.

A Declaration of Rights, to have ideological force, needs to be a coherent positive vision. Rome and Calvinism both had their positive visions of the destiny of mankind. The American and French Revolutions also had their visions, constructed by theoretical systematisers out of the 1688 Revolution. And 1917 had the economic-determinist vision of scientific socialism.

Political impotence

The distinctiveness of Britain derives from the fact that the 1688 Revolution was not enacted in the service of a positive vision. The state it established did not exist for an ulterior purpose. Its function was to provide a framework for open-ended change.

Successive waves of radicals in Britain took their inspiration from 1688 for this very reason. And in the great radicalism at the time of the French Revolution, Locke was the Bible of both the English Corresponding Societies and the United Irishmen.

The denigration of 1688 by the present generation of radicals stems from the fact that, having been caught up by totalitarian fantasy, they have no practical programme of change to implement. And having rendered themselves politically impotent, they are dreaming of a deus ex machina in the form of a written Constitution.

They want a Constitutional Revolution because they no longer hope to win a general election. But if you cannot even win a general election, how can you expect to make a fundamental alteration in the Constitution of the state?

A committee concoction

Charter 88 is a cry of despair, or a chorus of several discordant cries of despair. It is obviously a committee concoction, with incompatible bits put in to satisfy incompatible opinions.

For example, it says in the fifth paragraph: ‘The current administration is not an un-English interruption in the country’s way of life.” That is the proper position of New Left Marxism. But since the Charter is also signed by people of a basically different political disposition, paragraph 7 says: ‘The break with the immediate past shows how vulnerable Britain has always been to elective dictatorship.” So it is an un-English interruption: but, though it took 300 years to materialise, its possibility has always lain in the unwritten character of the 1688 Constitution.

We read in another paragraph: “Conditions here are so much better than in Eastern Europe as to bear no comparison. But our rights in the United Kingdom remain unformulated … ”

Most states in the world have beautifully formulated rights in their constitutions, though the people are not in actual possession of them. The people of Britain are in possession of very extensive rights, but in order to remain in possession of them they must uphold them continuously by political activity. Liberty in Britain is dependent on there always being an effective party of opposition – an Opposition which makes the outcome of every election doubtful.

Furthermore, if there had been a comprehensive and authoritative formulation of rights for Britain in 1688, things would have been frozen at the stage reached in 1688, and many rights which are now commonplace would probably have gone unconceived.

Constraint on government

The concluding paragraph says: ‘The inscription of Jaws does not guarantee their realisation. Only people themselves can ensure freedom … ”

But the thrust of Charter 88 is that a party which wins three elections in a row should be subjected to a Constitutional restraint in legislation. As it is put in another paragraph: “No country can be considered free in which the government is above the Jaw.” In the case in point this means that Parliament must be prevented from making what laws it pleases. (In Britain, government is always above the law, in the sense that it rests on a Parliamentary majority, and can therefore change the law. This capacity for changing the law means that it is not in the long run bound by any particular law.)

The constraint on government required by the British Constitution is effective Opposition. Assuming, as Charter 88 does, that the Opposition has rendered itself permanently ineffective, there are two possible devices by which a Government with a reliable Parliamentary majority can be prevented from doing as it pleases: the Swiss way and the Irish way.

It has always been a condition of the existence of Switzerland that the legislative capacity of the state should be limited. One of the means to this end is that legislation can be struck down by referendum.

The Irish in 1937 adopted a statement of the rights which the independent state was to cherish. And to ensure that Parliament (the Dail) did not legislate in breach of these rights, sovereignty was transferred from it to the judiciary.

A conservative force

The value of a written Constitution policed by the judiciary has been demonstrated in Ireland recently. The world outlook enshrined in the 1937 Constitution was thrown into considerable confusion twenty years ago as a result of the Second Vatican Council. If Parliament had been free to legislate, it is probable that during the next fifteen years it would have established a right of divorce and other liberal rights. But the conservative power of the written Constitution held the ring all through the 1970s, until the traditional value system enshrined in the Constitution recovered its vigour in the early 1980s.

A written Constitution, effectively policed, is an immensely conservative force. If Britain now decided to adopt a written Constitution, it is reasonable to suppose that the party which has won three elections in a row would determine what was in it. We cannot imagine why the Charter 88 people imagine they would be allowed to write it.

There has been for some time a body of Tory opinion in favour of a written Constitution. And if one were to be adopted now, Lord Hailsham probably has a first draft ready.

Lester at a loss

The Radio Four phone-in on December 5 was given over to Charter 88, in the person of Anthony Lester QC. It was a dismal affair, with one moment of enlightenment which showed how little thought the Chartists had given to the meaning of their demand.

Lester- was asked whether he would include in the Charter the right of the Northern Ireland electors to take part in electing the government, i.e. to cast their votes between the parties of Government and Opposition. But he just couldn’t see it. His response was the response of the Tory administration in Northern Ireland when it cannot avoid speaking to that demand: parties are free to contest elections where they please, and can’t be forced to contest them where they don’t please. This reply was entirely in the spirit of what Charter 88 calls “the dark side” of the Glorious Revolution. It was a negative expression of the disorderly political mentality fostered by that Revolution.

The Charter says “Scotland is governed like a province from Whitehall”. But Scotland participates in the election of the Government, and its votes have been rendered ineffective in the past decade only because the Labour Party has made itself ineffective. But it makes no difference in Northern Ireland what is happening in party politics because the Northern Ireland electors are under exclusion orders from both the Labour and Tory parties, and also from the SLiDs. It is always governed by a Government elected elsewhere, and by a party through which it can have no representation. It is “governed like a province from Whitehall”, and it is governed by dictatorship – a dictatorship being a government which you are allowed to play no part in electing. But this is not mentioned in the Charter. And Anthony Lester could not see that it was of any relevance to the Charter.

There being no pressure of callers, Nick Ross gently talked him round to an admission that maybe there was something undemocratic in not being able to vote in the election of the government.

The Chartists’ best friends

It is understandable why the Chartists overlooked the best example they could have cited in making their case. They participate in the bias against the Union with Northern Ireland.

But if there were “a written constitution, anchored in the idea of universal citizenship”, how could it avoid consolidating the position of Northern Ireland in the United Kingdom? It would in fact accomplish what the Ulster Unionists demand, but what is impossible under Parliamentary sovereignty: a binding guarantee to Northern Ireland.

And if the Constitution, “anchored in the idea of universal citizenship”, could contrive to perpetuate the unique form of disfranchisement practised against Northern Ireland, that would suit Ulster Unionism down to the ground. The Unionist idea of heaven on earth is to have a secure position within the UK while remaining free of the British political system.

Reactionary elements within Ulster Unionism have been in favour of a written Constitution for forty years. For a long time they thought they had one for themselves in the 1920 Government of Ireland Act, and legal ideologues fed that illusion. But you cannot have a secure written Constitution within a basic unwritten one, so the Unionists got a rude awakening in 1972 when Parliament abolished Stormont at a stroke.

If Charter 88 wants some really solid support for its scheme, it should canvass Jim Molyneaux and Ian Paisley.

 

This article appeared in January 1989, in Issue 9 of Labour and Trade Union Review, now Labour Affairs.  For more from the same period, see https://labouraffairsmagazine.com/very-old-issues-images/magazine-001-to-010/.

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