Interview: Richard Gordon on the need for a written constitution

Democratic Audit features short audio interviews with leading experts on the state of democracy and human rights. As part of our Constitution UK project, Richard Berry spoke to Richard Gordon QC, who recently published a draft constitution. Listen to the interview here, and read Richard Gordon’s explanation of why the UK needs to make the shift from parliamentary to constitutional sovereignty.

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I was enraged by the 2009 expenses crisis. As the Telegraph leaks became a torrent and the reputation of MPs and Peers (whether charged and convicted or not) sank deeper into the mire I found it harder to think of democracy in the same way. I had felt the same when learning that the doctrine of papal infallibility had had only been invented in the late nineteenth century, undermining the Catholic teaching I had received at school.

Parliamentary sovereignty, like infallibility, is a toxic mix because it asserts, with nothing more than litany to back it up, supreme and unquestionable authority. But, unlike the dogma of religion, the dogma of political power imprisons us all. We cannot escape from it and don a new faith. We are trapped in the false legitimacy of democratic consent.

Historically, sovereignty lay with the Crown. That was based not on consent but, rather, on brute force. When, in turn, the barons wrested power from the Crown (a process that started in the thirteenth century but went on until our glorious revolution in 1688 and the Bill of Rights enacted the following year) that was also based on force, albeit force masquerading as constitutional progress.

In democratic terms, parliamentary sovereignty only makes sense in a fictive political universe. Parliament’s bible, Erskine May: Parliamentary Practice has a zany logic. The self-evident truth – that no-one ever voted for parliamentary sovereignty – is the one absentee from its solid, dense and ostensibly authoritative pages that set out in comprehensive detail the internal procedures of parliament. But if that self-evident truth is reflected on and accepted, the whole edifice of parliamentary authority cannot be justified democratically.

The logic used to defend parliamentary sovereignty from its critics is that we, the people, get the chance under the rules of the democracy game at least once every five years to vote the scoundrels out. Yet these rules, the lynchpin of our modern constitutional arrangements, are only the current electoral framework devised by Parliament. They do not reflect any popular consensus as to the scope of Parliament’s authority. There never was a Magna Carta for the people; only for those a little lower down the power rung at the time than the King.

Does this matter? Well, yes it does. It matters, I suggest, for at least three reasons. Taken together, they go some way to explain my drafting a constitution for popular endorsement. These are the main reasons that I wanted to trigger a debate.

First, a popular constitution deriving its authority from the people is incompatible with parliamentary sovereignty but entirely compatible with democracy. If there were a codified Constitution the supreme authority would be the constitution rather than, as at present, any single institutional ‘player.’ Any other form of written document (even if called a constitution) could, under the logic of parliamentary sovereignty, be repealed by a new law tomorrow. It could not be entrenched.

Secondly, and related to the first reason; the sheer audacity of the claims of parliamentary sovereignty make principled constitutional progress impossible. It is a truth universally acknowledged that those with vested power interests will not surrender power. All the power in our modern constitutional arrangements rests with the executive rather than with parliament. As Lord Hailsham observed in that graphic phrase all those years ago, we have not a democracy but an ‘elective dictatorship’. The result is that no principled constitutional change is likely unless it strengthens the hand of the government of the day. A codified constitution would contain its own mechanisms for principled change.

Finally, there is evidence of a constitutional divide opening up between judges and politicians which is being fuelled by different conceptions of what parliamentary sovereignty entails. We saw it surface, first, in the recent judicial review challenge to the Parliament Act when two Law Lords observed that parliamentary sovereignty was created by the common law. Lord Bingham – the presiding senior Law Lord – criticised this view both in his judgment and in his subsequent brilliant book The Rule of Law but it is the fact that such divisive views were voiced that should give pause for thought. For if sovereignty was created by the judges then it can as easily be taken away.

For their part, MPs are becoming increasingly critical of the judges. For example, it was illuminating for me to read through the questions to witnesses posed by the recently constituted Joint Select Committee on Parliamentary Privilege to see how potentially wary parliamentarians are of judicial interference in the affairs of Parliament. The hostility comes from the (this time entrenched) belief that parliament is sovereign and that it is not for unelected judges to frustrate its will.

I do not pretend that a codified constitution would solve all tensions of this kind but by subordinating the power of our governmental institutions to a higher authority – that of the constitution – it would, I believe, strengthen the sometimes fragile consensus that props up our informal constitution. A codified constitution would play its part in preventing that fragile consensus from being shot to pieces.

Note: A longer version of the written post was published on the Constitution UK website. This post represents the views of the author and interviewee, and does not give the position of Democratic Audit, Constitution UK or the London School of Economics. Please read our comments policy before commenting. Shortlink: https://buff.ly/H3jePC

Richard Gordon is a barrister specialising in Administrative and Public Law, Constitutional Law and Human Rights/Civil Liberties. He is a Visiting Professor at University College London and Honorary Professor at the University of Hong Kong. He is the author of “Repairing British Politics: A Blueprint for Constitutional Change.”

Constitution UK is a trailblazing project that invites members of the public to participate in, offer advice on and eventually to draft a new UK constitution through crowdsourcing. Find out more here.