The need for a written constitution

I wrote about this topic earlier.

Marcel Berlins wrote on the Convention on Modern Liberty in Monday’s Guardian. In that piece, he rightly identified that there was no common consensus as to the way forward from the Convention. Yes, there were many who were there simply to protest at the iniquities of the State, Europe, the Police, CCTV cameras and the like, but the clear common thread of purpose running through the day was that the State encroacheth too far and its ambitions are contrary to human rights, dignity and liberty.

Berlins went on to concentrate on the case for a written constitution in the context of the British experience. He said:

I do not believe that Britain needs a new formal instrument. The US constitution, so admired, rubber-stamped unlimited detention without trial, and torture. There is no such thing as watertight bill of rights. A government intent on breaching civil liberties, with sufficient sheep voting in parliament, and a hesitant judiciary, will get its way, in any country. We have enough legislative tools: the European convention on human rights and various international treaties and conventions. More words on a piece of paper won’t make much difference. The aftermath to the weekend’s excellent convention should concentrate on getting rid of the supine politicians and the power-mad ministers.

The problem with having no definitive set of principles by which the organs of the state operate is that one can vote out one set of supine politicians and power-mad ministers only to find that the next bunch are as bad, if not worse. The democratic activity might secure no progress.

In Friday’s Comment is Free column in the Guardian, Jack Straw wrote:

I believe there are times when it is necessary to impose restrictions on some aspects of individual liberty in the interests of wider security. That is one of the central tasks of government.

In understanding this comment from Jack Straw, we need to concentrate on two points.

Firstly, what is the purpose of government? Individual human beings cannot produce or deliver all that is necessary for life health and wellbeing. We can produc private goods, but neither you nor I are going to build a high-speed railway between London and Glasgow or develop, resource and deliver a modern health service. All of those things are tangible public goods and the purpose of government. Neither you nor I can secure their liberties against those who would seek to take them away, nor can you or I secure equitable justice between us. Those are still public goods. My argument is that the greatest public good that the state can deliver on the part of its people is liberty.

Secondly, is security truly a good reason for restricting liberty? What we are now seeing is simple shroud-waving on the part of ministers to make us feel unsafe and in need or protection – in need of Rescuing and therefore likely to submit to these small parings from our freedoms and liberties.

It is my contention that the first duty of government must be the liberty of its people and all who fall under its protection. When liberty is subservient to spectres such as terrorism, we progress inevitably to extended detention without charge, internment, illegal rendition, torture and the death of freedom.

It is for this reason that I contend that Berlins is only partly right. Yes, the case is urgent and we need to exercise checks on the ambitions of the state right now given that it will take years to establish (a) the case for and (b) the instrument itself of a new constitution. However, it is also clear that such an instrument is essential to inhibit authoritarian governments from seeking once more to roll back the liberties of the people in the name of the faceless horror.

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