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Could a constitution save us from chaos?

The UK is plunging into ever-deeper political dysfunction. Could we suffer the same fate? If so, how can we prevent it?

Many political, economic and social trends over recent decades have significantly changed British society and created widening rifts in it. But the political system failed to change with the country. For some semblance of stability, the country still relies on two major parties alternating in power to rectify damage caused by bad policies, and to refresh voters’ hopes for progress.

However, the parties themselves did change. Labour and Conservative used to have among their members and MPs a wide range of political views from the centre to the far left and right respectively. Party and parliamentary discipline just about kept them functional in either government or opposition.

But both those disciplines have broken down. Party membership has shrunk dramatically as members of the public became too busy or too disenchanted to join; and parliamentary caucuses have become highly fractious because of weak leadership, single issue campaigns and loss of collective responsibility.

Above all, public and politicians alike have become so disillusioned and distrustful it seems impossible to get a majority of them to agree on the causes of any given problem or solutions to them. Politics have polarised and society has shattered.

While these factors have been building for decades, they have accelerated rapidly over the past four years in the lead up to the Brexit referendum in 2016 and all that has flowed from it.

One of the core reasons for the resulting chaos is the UK’s lack of a written constitution. For example, Prime Minister David Cameron initiated the non-binding referendum but said he would treat it as binding anyway.

Even more importantly, the current Prime Minister Boris Johnson got the Queen’s assent to suspend parliament for five weeks, which is preventing MPs from working on Brexit, the most critical political and economic issue for the country in decades, ahead of Johnson’s self-imposed deadline of October 31.

The UK Supreme Court is likely to rule this coming week on the legality of Johnson’s decision to prorogue parliament. If he loses, he might escalate the political crisis by pressing on regardless or by triggering an election which his advisers say he would make a People vs Parliament fight with him on the side of the people. Meanwhile, he has driven dissenting MPs out of the caucus, making the Conservatives a far narrower, right wing nationalist party.

Such developments have greatly intensified the UK’s debate over its lack of a written constitution. For example, the constitutional issues involved in Brexit are discussed in this article, the wider short-comings of the UK’s current constitutional framework in this article and a debate for and against a written constitution in this one.

Of course, a written constitution alone cannot prevent political chaos, as the US currently demonstrates in its crisis driven by many of the same economic, political and social factors afflicting the UK.

Only a robust and healthy political culture in government, parliament and society can save a country. “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it,” wrote Learned Hand, a US judge from 1909 until his death in 1961. He has been quoted more often by US legal scholars and the Supreme Court than any other lower court judge.

We New Zealanders could very easily be riven by the same economic, political and social factors tearing apart the UK and the US. We too are experiencing rising levels of economic inequality, social fragmentation and political disillusionment.

But we have one great advantage they don’t. As a much smaller country, we can bring people together to learn, debate, decide and act on issues far more readily than they can. Together, we can achieve a common understanding about the causes of, and our responses to, our challenges and opportunities. Moreover, with only a few degrees of separation between us we can hold each other more accountable for what we say and do.

"... we are failing as a country to have constructive debates and to achieve broad agreement on big issues. Thus, the three coalition members have to make considerable policy compromises to play to their disparate members."

Those are some of the reasons we rank fourth in the Democracy Index calculated each year by the Economist Intelligence Unit. Likewise, eight out of the top 10 democracies have populations of 10 m or less.

But small size doesn’t guarantee constructive politics or social harmony. For example, Sweden and Denmark, third and fifth in the ranking, are increasingly afflicted by the rise of neo-nationalism.

Nor should we be complacent about moving on to a more representative democracy than the UK or US have thanks to adopting our MMP system more than 20 years ago. Our current coalition Government of Labour flanked by the Greens to the left and New Zealand First to the right is struggling to deliver big, constructive progress.

One reason is that we are failing as a country to have constructive debates and to achieve broad agreement on big issues. Thus, the three coalition members have to make considerable policy compromises to play to their disparate members. Meanwhile, National has its own problems with its internal factions and its lack of a strong commitment to economic regeneration and to social and environmental justice.

And should this Government or subsequent ones be tempted to use referenda as a substitute for doing the hard work of building political consensus for big changes, Peter Dunne has plenty of evidence of the dangers in his latest Newsroom Pro column.

So, we need a new political culture, one that engages far more people in constructive engagement on all our big social, environmental, economic and political challenges and opportunities.

One way to help build it would be to write a constitution for New Zealand, using a similar process involving public representatives as the Irish used for their Convention on the Constitution which ran from 2012 to 2014 to reform their existing constitution.

We are one of only seven countries with an uncodified constitution, of which the UK, Canada, Israel and we are democracies in the Westminster tradition. We four rely on the British tradition of an agglomeration of laws and statutes which serve as an unwritten constitution.

Here in New Zealand the leaders on the push for a written constitution are former Prime Minister Sir Geoffrey Palmer and Andrew Butler QC. In 2016 they produced a codified Constitution for Aotearoa New Zealand which they say “reflects New Zealand's identity and nationhood, protects rights and liberties, and prevents governments from abusing power.” An excellent summary of their arguments for it, and the elements of it, is in this 2016 Listener article by Rebecca Macfie.

But the very best argument of all is to watch the UK’s descent into political chaos and democratic disarray.

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