Not only do books on the British constitution continue to multiply, but so do draft constitutions. The Institute for Public Policy Research published one in 1991. So did the Liberal Democrats. Yet another is apparently circulating in draft form at the moment. And now here is a new one from Richard Gordon QC, a leading silk in administrative and human rights law. Repairing British Politics takes the form of an introductory essay followed by Gordon's shot at producing a written, codified constitution for the UK, with his own running commentary and explanatory notes.
Almost without exception, these various draft constitutions have two characteristics in common. They are written by lawyers or groups of lawyers; and they are extraordinarily long and complicated. The early-90s IPPR version ran to 129 articles. Gordon's runs to 248 separately numbered paragraphs. In length alone, both of them make the American constitution seem the merest bagatelle.
A typical paragraph in Gordon's version reads: "Constitutional conventions existing at the time when this Constitution comes into force shall otherwise continue to apply and form part of this Constitution except that such constitutional conventions shall no longer apply if the convention in question has been codified in this Constitution in whole or in part or if the subject matter of the convention has been provided for by this Constitution." The mind does boggle.
That said, Gordon's tone is modest and tentative throughout - his stated purpose is to stimulate debate, not to foreclose it - and his proposals are elaborate enough to encompass intriguing and novel suggestions.
The House of Commons should be renamed the House of Representatives. There should be a new Citizens' Branch, with members selected at random from the electoral register to serve for a single year, and a Citizens' Council, elected by the members of the Citizens' Branch and assigned the role of "promoting and monitoring the fulfilment and implementation of the values of this Constitution". The members of this potentially influential, if not quite powerful, Citizens' Council should be paid at the same rate as cabinet ministers. The enforceable rights of individuals should be extended to include the right of access to "sufficient food, water, clothing and housing" and the right to "appropriate health and social care services free at the point of delivery and within a reasonable time". A draft preamble to the proposed constitution would acknowledge that British society is now "multicultural".
Being a lawyer, and a human rights lawyer at that, Gordon is of course concerned to balance the claims of democracy, as embodied in raw people power, against the claims of unpopular individuals, ethnic minorities and other potential victims of that same people power. He is not an out-and-out majoritarian. On the contrary, his list of constitutional rights includes the right of everyone to "freedom of thought, conscience and religion", and he assigns to an unelected judiciary substantial powers to restrain authorities seeking to infringe individuals' and groups' rights and to declare acts of other authorities unconstitutional and thus illegal. By implication - and notwithstanding a passing reference to "the available resources of the State" - unelected judges would even have the power to order other authorities to provide citizens with the aforementioned food, water, clothing, housing and free health and social care services.
Some readers may resist the notion of enthroning the judiciary to that extent, and others may question whether a constitutional structure of such complexity may not bewilder and alienate citizens as much as empowering them. This draft constitution certainly contains far more vague - and therefore justiciable - provisions than its US counterpart, which already contains a considerable number.
But perhaps the core difficulty with Repairing British Politics, and one that makes it less persuasive than it would be otherwise, lies in Gordon's bald assertion, which he never develops, that "a written Constitution for the UK would change our lives for the better". But would it? Trying to operate a constitutional structure as heavily laden, cumbersome and complex as this one might make the UK a less well-governed country than it is now and an even less happy one. At the very least, would-be drafters of new constitutions owe it to us to address this possibility. Few of them do. One need not be unduly pessimistic to baulk at what seems here and elsewhere to be excessive optimism.
Repairing British Politics: A Blueprint for Constitutional Change
By Richard Gordon
Hart Publishing, 173pp, £17.95.
Published 17 February 2010