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The Constitutional Elephant in the Room

Author: Gavin Barker

The lack of a modern, democratic constitution, rooted in human rights, is the elephant in the room; trying to advance the cause of social justice when the system is rigged to fail is to doom our efforts to failure.

Why do we need a constitution?

At the heart of the multiple social and economic injustices we see today is the absence of any governing principles that guide the legislative work of government and ensure that its primary role is the welfare of its citizens. What we have today is ‘elective dictatorship’, where a dysfunctional election system, corrupted by money, awards disproportionate power to the winning party. Party discipline and loyalty ensures that power is concentrated in the hands of the executive (government) with the result that Parliament no longer holds the government to account. Only a new codified constitution can restore proper democratic governance.

What do you mean by a constitution?

A constitution is a set of democratic safeguards that are so fundamental to our wellbeing that they ought not to be amended or overturned without broad cross party approval along with overwhelming public support

A constitution sets out the rules by which power is exercised, by whom, and what its limits are. These are normally written down in a clearly codified form. In developed democracies, such rules normally include the ‘separation of powers’ between the Legislature (parliament), the Executive (government) and the Judiciary (the courts of law), each of which acts as a check against the other. It also establishes the relationship between central and local government, how elections are run and how parties are funded. Finally almost all developed democracies include a bill of civil and political rights to protect the individual against an overbearing state.

Don't we already have a constitution?

We do, but not one that works! We have no set rules by which power is exercised and such rules as there are can easily be changed at the whim of whichever party is in power. Other modern democracies have the good sense to ensure that power is carefully regulated in a codified constitution that cannot be changed without active cross party support and widespread public consultation.

The absence of any regulation is clear for all to see: the lack of accountability to Parliament on the billions spent on PPE equipment; the appointment of friends to high political office in place of trained civil servants; the removal of fundamental rights including the right to protest; the lack of access to justice by a failing, underfunded court system; the over-centralisation of power at Westminster at the expense of local government; and the gross misconduct of ministers with complete disregard for the ministerial code - a constitutional document which lacks legal force.

Our constitution is a muddled, sprawling, archaic set of documents and unwritten conventions, judicial decisions and royal prerogatives whose workings are opaque and remote from public understanding. Its celebrated flexibility to changing times too easily suits a political elite rather than the needs of its citizens. And the existence of an unelected House of Lords is a glaring example of our constitution’s irrelevance to the demands of a modern democratic society.

What difference would a constitution make to people's lives?

The difference could be dramatic: fundamental laws and rights would be restored and protected from abuse by the government of the day; elections would be based on the principle of proportional representation where seats match votes and no vote is wasted; the House of Lords could be replaced by a ‘senate of the regions and nations’; and local government could be placed on an independent legal footing with its own rights and powers beyond the reach of Whitehall. Such a new constitutional settlement could put a permanent end to the over-centralisation of power and Westminster and return it to local people and communities allowing them a real say over the decisions and services that matter to them.

Whether or not this happens depends on how this is done. The design of a new constitution cannot be a legal exercise conducted by politicians and experts behind closed doors. It must be an open, transparent process with the active involvement of the wider public. That means a citizens assembly or series of regional assemblies composed of a representative sample of the local population, aided in their deliberations by constitutional experts and politicians.

Aren’t there more important issues to address? For example poorly paid jobs, the housing crisis, climate change, an underfunded NHS?

All of these are important issues but in each case we risk addressing the symptoms not the cause. The multiple injustices we face such as gross inequality and homelessness have their root cause in a rigged democracy that answers to the interests of power and wealth rather than the needs of our fellow citizens. This means that whatever the campaign issue and however successful in advancing our particular cause, that success is temporary so long as we have a token democracy and systems of governance that can easily be gamed by a wealthy elite. We have to step back from silo based campaign aims and see the larger picture. We have to address the cause, not the symptom and we can only do so if we change the rules by which power is exercised at every level. Only a proper codified constitution, designed by and for the people can address that aim.

How do we go about getting a new constitution?

There is already a loose network of organisations that seek to promote democratic reform and bring about a new modern constitution. Citizen Networkis part of that network which includes leading campaign organisations such as Compass think-do tank and Unlock Democracy. The Citizens Convention on Democracy is also working to develop a three part citizens convention on democracy.

The Democracy Handbook acts as an umbrella network of small and larger grassroots organisation. Other organisations such as the 99% seek to end mass impoverishment and promote fact based policy making. They are broader in scope and include democratic reform as one but not the only step towards a better, fairer society.


The publisher is the Centre for Welfare Reform.

The Constitutional Elephant in the Room © Gavin Barker 2021.

All Rights Reserved. No part of this paper may be reproduced in any form without permission from the publisher except for the quotation of brief passages in reviews.

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