Writing a British Constitution - Clive Stafford Smith
Jan 17, 2025
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Clive Stafford Smith, a renowned human rights lawyer and Gresham Professor of Law, dives into the complexities of Britain's constitutional framework. He discusses the historical roots and resilience of the American system, particularly its checks and balances against populism. Comparisons between the UK and US highlight the challenges of governance and the role of the judiciary. Smith advocates for constitutional reform, emphasizing the necessity of protecting individual rights amid rising populist pressures, and suggests that a new constitutional convention could help remedy current deficiencies.
Britain's lack of a structured constitution hinders rights protection and can lead to excessive control over democratic processes.
The American Constitution's clear separation of powers provides effective safeguards against populism, contrasting sharply with Britain's fluid political framework.
Deep dives
The Need for a Structural Constitution in Britain
Britain's current political framework lacks a structured constitution, which makes it challenging to protect rights, especially in the face of populism. This structure is crucial to prevent those in power from exerting excessive control over democratic processes. The speaker underscores the difficulties of discussing rights, as arguments become contentious, making it simpler to focus on establishing a structural framework instead. The comparison with the American Constitution highlights how a more defined structure could provide safeguards against the rise of populist leaders.
Lessons from the Roman Republic and the U.S. Constitution
The Roman Republic is highlighted as an early example of checks and balances that were susceptible to populism but served as a solid foundation for governance for centuries. The American Constitution, with its clear separation of powers, was designed to prevent the tyranny of the majority while allowing for democratic principles. Specific mechanisms such as staggered elections and veto powers ensure that no single branch of government can overpower another. This structure stands in stark contrast to Britain's more fluid political framework, where power dynamics have shifted significantly over time.
Challenges in Amending Constitutions and Governance
Amending the U.S. Constitution is an intricate process requiring broad consensus from both Congress and state legislatures, which ensures stability but can hinder timely reforms. The speaker contrasts this with Britain's more flexible model, where changes can be made with fewer checks, allowing for rapid shifts based on the ruling party's advantage. This difference in amendment processes showcases the potential chaos that can arise from a less stringent constitutional framework, as evidenced by various UK governmental reforms. The implications of this flexibility in governance directly affect how democratic principles are upheld or eroded.
The Power Dynamics in the British Judiciary and Executive
The independence of the judiciary in the U.S. is characterized by lifetime appointments, offering a buffer against political pressures unlike Britain's parliamentary supremacy. Although the U.S. Supreme Court holds significant power in interpreting laws, British judges can find their rulings overridden by Parliament, which raises concerns about justice for vulnerable populations. The speaker argues that the concentration of power within the Prime Minister's office in Britain disrupts the balance of governance, diminishing effective checks on executive authority. With a lack of expert-driven cabinet appointments, the efficiency and capability of the British government are questioned, suggesting an urgent need for reform.
Recently, the UK has got into a muddle over how to approach Scottish independence and Brexit. What can we learn from the U.S. which took much of its system from the theory behind the U.K. structure: the King as the Executive; a Legislature made up of the House of Commons balanced by the House of Lords; and the judiciary? And what role should the judiciary play? Have the British got confused about the notion of ‘Parliamentary Supremacy’, deciding that this meant that Parliament was supreme not just to the King, but to the judiciary too?
This lecture was recorded by Clive Stafford Smith on 1st January 2025 at Barnard's Inn Hall, London.
Clive is the Gresham Professor of Law
He is the founder and director of the Justice League a non-profit human rights training centre focused on fostering the next generation of advocates. He also teaches part time at Bristol Law School and Goldsmiths as well as running a summer programme for 35 students in Dorset, his home. He has received all kinds of awards in recognition of his work, including an OBE by Queen Elizabeth II for “services to humanity” in 2000. He has been a member of the Louisiana State Bar since 1984.
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