Beware, constitutions can change your life
By Philip Johnston
The controversy over whether the EU treaty is really a constitution by another name misses the point. This is not an argument about Europe's constitution; it is about ours.
The transfer of power and sovereignty over the past 40 years has transformed what Walter Bagehot called the "great entity" of the British constitution, characterised over hundreds of years by its continuity and simplicity. It is often said that we have no written constitution. We do. It is contained in dozens of statutes but has never been codified into a single document.
This is a subject whose importance is too easily ignored. It seems as dry as dust, arcana of interest only to political anoraks or academics. Yet it goes to the heart of who we are as a nation. It defines our liberties and the relationship between people and the state, the governed and the government.
These may not be matters that much exercise us today; yet down the centuries they have been the causes of rebellions and wars.
Exactly 360 years ago this week in a parish church by the Thames, one of the great unsung events of English history took place. For almost a fortnight, participants in the Putney debates of October and November 1647, among them Oliver Cromwell, argued over the boundaries of state power and the extension of the franchise.
Radicals, known as Levellers, considered that since the Civil War had been a fight for freedom it should result in a right to vote for all Englishmen (even the most revolutionary speakers did not advocate the vote for women).
The radical case was famously supported by Thomas Rainsborough MP: "I think that the poorest he that is in England hath a life to live, as the greatest he… I think it's clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not bound in a strict sense to that government that he hath not had a voice to put himself under…"
Today we consider Rainsborough's words not merely unexceptionable but the essence of our democracy. At the time, Cromwell regarded them as extremist and anarchic. It would take until 1929 for the franchise to become universal. But the argument in the Church of St Mary the Virgin is one that we are still having today.
It is what the row about the European constitution is all about: what control do we have over our own destiny; and how do we call those who govern us to account?
Nobody denies that membership of the European Union has transferred sovereignty from Westminster and Whitehall to Brussels. But it is easy to lose sight of how substantial that transfer has been and the effect it has had on our constitutional arrangements.
This upheaval is at the core of a compelling new book by Professor Anthony King of Essex University, The British Constitution, which tells the central historical story of the British – how a somewhat ad hoc constitutional settlement underpinned three centuries of political stability.
Until Edward Heath signed the Treaty of Rome in 1972, it had changed little. What Prof King calls the "old constitution" was self-contained and largely immune to outside influences (indeed, its precepts were widely exported to the Empire), though there were arguments over the relative importance of Parliament, the executive and the judiciary.
But all this changed when we joined the Common Market. "Not only did Parliament cease to be sovereign, Britain itself ceased to be an old-fashioned sovereign state," observes King. "The fact of being a member of the EU permeates almost the whole of the British government – to a far greater extent than most Britons seem to realise."
The new settlement has significantly augmented the role of the judiciary – especially in interpreting EU law and the UK's human rights obligations; it has considerably reduced the role of Parliament; and it has restricted the executive's power. Each treaty signed by a prime minister since 1972, including that in Lisbon by Gordon Brown, has enhanced one or all of these changes.
It is ironic that the Government wants to embark on a programme of "radical" constitutional reform, as though it has any real control over matters any more. Indeed, before he became Prime Minister, Mr Brown gave his more excitable cheerleaders the impression that he was planning the biggest constitutional earthquake since the Glorious Revolution.
Yet the reality is far less dramatic. Some ideas will be set out this week when consultation papers will be published about the right to demonstrate outside Parliament (the draconian restrictions introduced a few years ago will be eased) and the prerogative powers of the prime minister to order troops into battle and sign treaties without parliamentary approval.
Future papers will propose that MPs should have a vote on whether to dissolve Parliament – a largely pointless gesture since no opposition would divide against it and risk being branded craven.
There are also ideas for the greater involvement of "citizens" in decision-making. But when many of these decisions are being taken outside the country with little say-so for Parliament, let alone a community action group, what would be the point of this?
The strength of the old British constitution was that, by and large, the governed believed (whether correctly or not) that they had some control over the government through the ballot box. Now they feel powerless. Why else has election participation fallen so dramatically?
This week, Jack Straw, the Justice Minister, will deliver a major speech about whether the UK should have a new Bill of Rights and, possibly, a written constitution. However, since successive governments have surrendered so many of the sovereign powers which they – and, by extension, we – once possessed, this is an increasingly futile exercise.
Our most fundamental right is to hold those who govern us to account, something understood, if not achieved, by the Putney radicals. But when so much of our law is decided by people beyond any influence that we can exert, then the old constitutional order really has broken down.
'The British Constitution' by Anthony King (Oxford University Press, £25) is published on Nov 1.