The joys of a sound Constitution

Everyone knows that the British Constitution doesn't exist. And that it is unique in not being written down in documents - certainly not in a single one. It is famously a set of arrangements and understandings. So if we want to understand it, the obvious thing is to go to the Old Bailey in London, or our local town hall and magistrate's court, and see it at work. Children have always done that, and are usually properly impressed by the odd mixture of showmanship and seriousness they see.

Even so, Walter Bagehot, the great 19th-century constitutional essayist, approved of someone who said: "The cure for admiring the House of Lords was to go and look at it." He only half meant it, but the alternating clamour and tedium of many of the public workings of government might indeed fuel the cynicism that opinion polls report - the easy dissidence of the well-governed.

So it is sensible to take an interest in the likes of Burke, Macaulay and Bagehot (or Plato, Melbourne and a dozen others) who have discussed the nature of government, often rather in the manner of anthropologists describing how the odd behaviour of some tribe in fact makes sense. Not that any prescriptions, or the system, are set in stone: Edmund Burke noted, as though to counteract his seeming traditionalism: "A state without the means of some change is without the means of its conservation."

True to the spirit of much writing about the Constitution, we can begin by saying what it is not. Though an understanding of the nuances of the system is best to be found in something like the Oxford Dictionary of Political Quotations, it is absolutely not about politics. It is the machinery by which politics works. It has to be able to breathe in a vacuum. Its ability to help a rabble become a society is never better displayed than when the politicians are at each other's throats fighting about who should be in charge.

A constitution depends on the sort of people it governs. You apply the same adjectives to a constitution as to the people it fits (or ill- fits). The British Constitution might not work for any other people, but it is, like us, reasonable without being rational. We pride ourselves that no other people would tolerate, or could have contrived, so haphazard a way of preserving justice and liberty.

Yet on all sides, people want to reform the Constitution. Some of the urge flows from a sense that the system ought to reflect their present style, not their inherited habits. In fact, the Constitution is sometimes almost too good at being modern: it allows, for instance, the current taste for trivial abuse and grandstanding to the media to pervade the House of Commons: the verbal truce promised after John Smith's death lasted for weeks, not months.

Besides, much of the British Constitution's style (the parliament building itself, and many of its customs) are antique only in appearance: they were put together by Victorians in an age when Mammon wanted to clothe itself in medievalism.

But it is true that some habits attach to the thing being very old, and proud of it: the roles of heredity and religion, and some habits inherited from the 17th century, are genuinely important and might be hard to shift. They may become more fashionable if we learn that deference can be liberating, and need be only a very mild form of subservience.

Even the most peculiar bits of the Constitution constantly refresh themselves. The monarchy certainly does, if a little bizarrely. The monarchy appeals to many: to the thoughtless, because it provides a family soap opera; to the intellectual, because it enshrines lofty mysteries; and especially to women, "who care", as Walter Bagehot remarked, "50 times more for a marriage than a ministry". Nearly everyone senses that it would be a pity if it ceased to work.

We have the House of Lords, in which people who share only the characteristics of having had (often surprisingly recent) ancestors who were rapacious or industrious or both, and who have mostly had an Eton education, are allowed to talk and vote on an equal footing with the most distinguished elder statesmen, churchmen and lawyers in the land (who are often the scions of long dynasties of the worldly wise).

Some absurdities in the Constitution are merely the accretion of habits formed in simpler and much more corrupt times. These include the first- past-the-post voting system, which systematically disenfranchises a substantial minority of thoughtful voters; that is, those who vote for a third party outside its select and politically eccentric heartlands. It also disenfranchises people who live in areas where there are few others of their political stamp; that is, socialists in suburbs and conservatives in slums, neither of whom can hope to dent the outcome of an election. The Constitution should appal any democrat who believes in rule "by and for the people", and therefore most socialists.

The Constitution is at its most antique when it enshrines a prejudice against the mob. It is designed to eliminate any serious danger of direct democracy, and is instead a system for selecting and controlling a governing elite (the parliamentarians). A plebiscitic democracy, perhaps ushered in by the silicon chip, would, in one sense, be merely the last step towards democracy, but, in another, the first towards popular rule. But direct democracy risks the perpetual excitement of surfing moral panics, or the tedium of living in a Swiss canton.

The Constitution's arrangement should shock any who believe that it is important to have checks and balances between the executive parts of government (the civil service, or Whitehall), the legislature (the law makers, or Parliament) and the justice system. We operate, as Bagehot remarked, "by choosing a single sovereign authority and making it good". That is, Parliament, control of which is centralised in the hands of a ruling party. Within that rule, the rule of the few is enshrined by Cabinet, creating, as Lord Hailsham noted, an "elective dictatorship" which is modern only in degree.

Yet, with all these absurdities, what has caused us most disquiet recently is not a major structural issue; it serves as a good example of why getting in a lather about the Constitution is almost always a waste of time. It is the sleaze factor that most worries us.

We elect parliamentarians to do various contradictory jobs: to represent whatever interest they like, or that is prepared to pay them; to represent the personal interests of their constituents; to represent their aggregated local interest. Only having done all those must they become lobby fodder for a party platform which orders many of these and other interests into something like a vision for the nation. All along, we want them to share Burke's sense that an MP should lead as well as represent his constituents: "I had much rather run the risk of displeasing than of injuring them."

We know that government has always been about the jostling of great interests - the interests of this or that class, or sort of money - but we fear that politicians have lost a proper sense of their own dignity, and with it the operational part of their consciences.

In any case, the point is that we ought to cure the evil in stages, beginning with the least and lightest actions. This is what is happening. Worried by sleaze, or the patronage system which appoints the boards of quangos, we appointed the Nolan committee to inquire into and propose ways to root out bad practice. Only if that fails - and there is no evidence yet that it will fail - will we need to move on and worry that we are perhaps enticing the wrong sort of people into politics. We must hope that we are, because we can't be at all sure that we can quickly and certainly replace them with anything superior.

If we decided the practices and people in Parliament were rotten, and we couldn't see how to make them other, we might then consider reforming the Constitution in some way to make sure that MPs could have no power for wrong-doing. We might be tempted to set something over Parliament, to celebrate (as some misguided people do) the way that the EU's institutions might be set over ours; or judges might oversee parliament; or some "people's jury" might do the job.

We have no evidence from anywhere in the world that the Constitutions which were spawned by, but tried to improve on, our own are in fact superior to their scruffy parent. They are more formal, more orderly, more explicit. In most of them, parliament is subject to superior authority. The result is the appearance of order but a great deal more muddle in outcome.

Tomorrow: The danger of proportional representation and reforming the Lords

COMFORT FOR REACTIONARIES

A fanatical belief in democracy makes democratic institutions impossible - Bertrand Russell, 1872-1970

I feel an insuperable reluctance in giving my hand to destroy any established institution of government on a theory, however plausible it may be - Edmund Burke, 1729-1797

The worst sort of tyranny the world has ever known: the tyranny of the weak over the strong. It is the only tyranny that lasts - Oscar Wilde, 1854-1900

Authority doesn't work without prestige, or prestige without distance - Charles de Gaulle, 1890-1970