Monday, 20 August 2018

Why Britain needs a written constitution ­– and can't wait for parliament to write one

Bruce Ackerman



Everybody is immersed in Brexit-talk right now. But detach yourself momentarily from the current debate to confront the constitutional challenges Britain will face once it reasserts its political independence from the European Union.

I am more concerned with presenting the fundamental questions rather than providing definitive answers. But it’s clear that parliament should enact a statute creating a specially elected Constitutional Convention to confront the post-Brexit dilemmas facing Britain, and hammer out a written constitution for submission to the voters at a popular referendum.

The threat to the Enlightenment State


For a variety of historical reasons, the United Kingdom has muddled its way into in a curious arrangement in which significant forms of home rule are extended to the five million people living in Scotland, the three million living in Wales, and the two million living in Ireland, but no home rule is granted to the 52 million people living in England. At the same time, the degree of home rule enjoyed by the three regions differs very significantly.

The House of Commons can change the qualitative terms of federation whenever it wants to, which has lead the three minorities to organise regional political parties to defend or expand their autonomy.

Over the next decades, the dynamic of asymmetric federalism may well make May-type governments, dependent on these parties for majorities, far more common. This will cause indecisiveness, as well as angry protest from alienated English voters.

Over the past three centuries, most Britons have come to think of themselves as citizens of something I call an Enlightenment State – where they are free to live out a rich variety of religious and cultural lives without endangering their status as equal members of the British nation.

Britain isn't turning Nazi anytime soon, but its Enlightenment ideals could well be eroded by warring mono-culturalisms generated by the political dynamics of asymmetric federalism.

Symmetric federalism


I begin with a proposal that is radical by British standards, but utterly conventional everywhere else in the world. Consider the possibility of transforming Britain's asymmetric federalism into a fully symmetric one.

As in Australia or South Africa, Germany or the United States, why not divide the entire country into an appropriate number of self-governing provinces, giving each the same powers of local self-rule, and limit Westminster supremacy to issues of truly national concern.

The dominant interests and cultures prevailing in metropolitan London are radically different, say, from those prevailing in the north west of England. Putting these different regions into separate provinces would give each region's inhabitants the precious opportunity to express their cultural differences in a meaningful politics that transcends the limited concerns of local councils.

Apart from the opportunities for regional self-government, standard federalism would help pre-empt the dangers of cultural nationalism we have identified.

But let's put symmetry aside for a moment and assume that one or another version of the status quo will prevail in post-Brexit Britain. What other steps might be taken to pre-empt the dangers of weak national government, and increasing ethno-nationalism, generated by the current set-up?

A constitutional convention


There is only one way for Britain to take charge of its constitutional future – and that's by taking the issue away from parliament and electing a special Constitutional Convention to present a proposal for approval by the British people at a special referendum. Special steps should also be taken to assure an informed decision by the voters on the key issues.

This is because the way to pre-empt the danger of mutual alienation is by reassuring all sides that the terms of regional self-government are deeply entrenched in existing constitutional arrangements. Under this arrangement, groups would not need to engage in aggressive political organisation to protect their rights to home rule.

Elections to the Convention should not be conducted in the standard single-member district, winner-takes-all fashion. Instead, political parties and other citizens’ groups should be asked to present a slate of candidates to the nation as a whole. The top candidates on each slate will gain election in direct proportion to the slate's share of the popular vote.

The top candidates from different slates will be obliged to take competing views seriously as they try to hammer out a sensible solution. Once the Convention acts, its proposal should be submitted for approval at a referendum, but only after special steps are taken to encourage an informed decision by the electorate.

Given the misinformation campaigns provoked by the last referendum, it is time for Britain to try something new: create a new national holiday, Deliberation Day, at which voters would be invited to gather at neighbourhood community centres to discuss the Convention's initiative. A host of social science experiments establish that a day's deliberation greatly improves public understanding, enhancing the democratic authority of a Yes vote at the referendum.

There is reason for optimism here. While Britain has lots of problems, it also has a great tradition of problem-solving.

If Britain never goes down the Convention path, the ultimate outcome may well be far worse — with the dynamics of asymmetric federalism generating a persistent pattern of weak coalition government at Westminster, punctuated by competing cultural nationalisms that may ultimately destroy the hard-won ideals of multi-cultural Enlightenment citizenship expressed by the British tradition.

Bruce Ackerman is Sterling Professor of Law and Political Science, Yale University. 
This article is adapted from a longer piece in the Political Quarterly journal.

Image by David Dibert. 

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