Written constitutions are hard (but worth it!)
Earlier this week, former Conservative Cabinet Minister Lord Ken Clarke warned that Britain is heading towards an “elected dictatorship”.
As we’ve seen repeatedly in recent years, the safeguards that protect us from Prime Ministers or Governments intent on abusing their powers are wholly inadequate. We’ve seen senior Cabinet Ministers claim that winning ‘a mandate’ makes a Prime Minister all powerful and able to ignore the law.
None of this should be possible in a modern democracy, but Britain is not a modern democracy. Many of our rules and laws look hopelessly outdated in today’s world.
A Prime Minister shouldn’t be able to shut down Parliament. An Electoral Commission that runs and polices our elections shouldn’t have its priorities set by the Government. The Government shouldn’t be able to simply cancel or delay elections based on a majority vote in Parliament (as they did during Covid and repeatedly in Northern Ireland in recent years).
All of this has happened in the last 5 years in the UK.
Why can it happen?
It can happen because there’s no rulebook for Government. We don’t have a written constitution. A Government can simply pass a bill that gives the Police the power to deny peaceful protests. A Government could pass a law that even cancels elections, if it has a majority in Parliament.
The lack of a written constitution in the UK is a major vulnerability in our democracy.
A written constitution sets out the limits of Government power and regulates the relationship between the state and its citizens. It safeguards our rights and freedoms.
And we don’t have one.
But getting there won’t be easy.
Briefly Chile became the ‘poster child’ for a written constitution.
It’s not so long ago that Chile was run by a dictator. The written constitution that he imposed is very different to what any democrat would want to see. However, even though that dictator is long gone, and Chile is a democracy, the old constitution remains.
In a 2020 referendum, 78% of citizens voted in favour of writing a new constitution. There was a second question on who should write the new constitution. The choice was between a Constitutional Convention made up entirely of elected citizens or a Constitutional Convention that was 50% MPs and 50% directly elected citizens.
79% chose the all elected citizens option - it seems that MPs were not trusted to be part of the process.
The elected Convention was composed equally by men and women. There were 17 seats reserved for representation of native peoples.
This deliberative process ran for a year and a new constitution was written. That new constitution was put to the people in another referendum and was comprehensively rejected by 62% of citizens.
Just what happened? The first thing to look at is the change in the electorate - Chile had introduced an Automatic Voter Registration scheme so that every citizen was registered to vote. It had also introduced mandatory voting!
As a consequence of these changes, 13 million voted in the second referendum compared to fewer than 8 million in the first.
But no one suggests all the new voters were supporters of the original constitution.
The real issue seems to have been that the Referendum became a battle of left vs right - with the new constitution being seen as a ‘Left Wing’ document.
There were doubts cast about the representativeness of the Constitutional Convention. One poll showed that 63% of the people did not feel represented by the Constitutional Convention (even though it was made up of citizens elected by the people).
A well funded negative campaign was fought against the new constitution by the Right in Chile. There were allegations of misinformation and fake news.
It has been noted that the number of voters that backed the new constitution are broadly similar to those that voted for the left of centre President in the most recent elections. Possibly this suggests that some were voting along party lines in the referendum - something we’ve seen in UK referendums.
However it’s clear that many voters were persuaded that the new constitution was too long (hundreds of pages long with 388 individual articles!), too left wing and too radical.
There was a clear rejection of the new constitution.
So Chile went back to the drawing board and this time a commission of experts chosen by the Chilean Congress drafted the constitution. Then that draft was taken forward by a group of directly elected constitutional advisors. A body appointed by Congress ensured that the proposed text aligned with the principles set out at the beginning of the process.
This process was completed in 2023 and it was put to the people just before Christmas.
This second version was soundly defeated, 56% to 44%, too!
This time, the new constitution was seen by many as a ‘Right Wing’ document. Whereas the first draft constitution was seen as something coming from a left wing President, this draft constitution came from a Conservative controlled Congress.
Two very different constitutions, two different processes, one from the Left, one from the Right. Each with the same outcome.
It looks as if Chile has now placed the writing of a new constitution on the back burner. The Pinochet era constitution, rejected by nearly 4 in 5 citizens, remains in place for the foreseeable future.
That’s a great shame, but a constitution must be able to command the support of a comfortable majority of citizens. Until Chile can come up with a constitution to do this, it’s stuck with one that is unsatisfactory to most people. That’s tougher than ever in this polarised age.
As discussed at the start, the UK is in desperate need of a written constitution to protect the rights of citizens and define and restrict the powers of governments.
We are also a polarised country. Trust in politics and politicians is an all time low. Getting a document that is seen as something for all the people (not the Left or Right) will not be easy.
But it can be transformative if we get it right, and that’s what we must work towards.
Unlock Democracy is one of many organisations committed to delivering a Written Constitution for the UK. We will be doing our best to learn all possible lessons from Chile and apply them to the UK.
A possible lesson from Chile is that a constitution must command support from all sides or at least a clear majority of citizens. This might mean a two stage constitutional process -
The first is the base constitution made up of key rights, freedoms and clearly defining the role of government. This would be made up of things that enjoy broad support and, once passed, gives us the protections we currently lack.
The second stage could look at potentially more divisive issues, potentially using a deliberative approach like we’ve seen in Ireland on issues such as abortion rights and equal marriage.
However before we get to detailed processes, we must first win the case for a written constitution. You can help us do that by becoming a Member of Unlock Democracy today - be part of the movement for change.
Watch this space for a webinar next month devoted to Ecuador and Chile’s attempts at securing new constitutions.