Should Britain have a written constitution? Actually, while there are unwritten bits such as royal prerogatives and parliamentary conventions, most of it is indeed written. There is the 1215 Magna Carta, bits of which are still in force (though limitations on the monarchy started earlier, with measures such as the 1100 Charter of Liberties). And there is the 1689 Bill of Rights that limited the monarch’s ability to raise arbitrary taxes and interfere in justice and elections. There are various Acts of Parliament that are accepted as constitution, such as the 1689 Act of [religious] Toleration, the 1689 Habeas Corpus measure, the Reform Act of 1832, and more recently, the devolution measures. Not to mention various EU laws.
But no Parliament can bind its successor, so in theory any of these measures could be ripped up at any time. That is hardly a constitution at all: one of the points about a constitution is that, once it is agreed, it should be hard to change. Yet simple majorities in Parliament have proved enough to change our fundamental relationship with the EU, to change radically the composition and powers of the House of Lords, to reorganise local government, to limit access to trial by jury (too bad, Magna Carta), regulate free speech in newspapers (sorry, Bill of Rights), to hold suspects for prolonged periods (ho hum, Habeas Corpus) and much more.
It is an old but true adage that hard cases make bad laws. Until recently, we have maintained the principle of free speech, reckoning that even though it may be abused, on balance we gain more from people being able to speak their mind. But nasty cases such as racial abuse and phone hacking have torn up that long-held part of the constitution, and in the blink of an eye.
Some 95 members of the House of Commons (and 45 members of the Lords) are part of the payroll vote – ministers, whips and other government officers. Another 95 would probably love to be part of it, and there are equal numbers of aspirants for office on the Opposition side too. Parliament was originally set up to protect the public from the Executive, but now at least half of it is part of the Executive, or the shadow Executive. How can we then expect Parliament to limit Executive power over our lives?
Or limit itself, for that matter? There are no limits on government spending, deficits, debts, or on the ability to create new and arbitrary taxes (such as the 50p top income tax rate, which proved to be not just an envy tax, but a counterproductive envy tax)?
Answers on a postcard please. We could probably start by moving the Executive out of Parliament entirely. After all, we have set up a Supreme Court across the square from the House of Commons (another change in governance that the public were not asked about), so why not confine ministers to their ministries and only allow them out to be grilled by Commons committees? Then perhaps Parliament would revert to its original role, of protecting us from government power, rather that extending it.
Dr. Eamonn Butler is author of Foundations of a Free Society.