Britain's Constitutional Question

BRITAIN has long taken pride in the fact that its constitution, unlike those of most other democracies, is unwritten. But pride is giving way to doubt, and pressure is building for a fresh look at ways of securing the rights of British citizens.

Anthony Barnett, an advocate of a written constitution and a bill of rights, says he thinks that relying on Magna Carta, signed by England's King John at Runnymede in 1215, is an insufficient basis for ensuring that the rule of law prevails.

Mr. Barnett is coordinator of Charter 88, a nonpartisan group of lawyers and intellectuals modeled on Charter 77, the human-rights group that played a major part in destroying communism in Czechoslovakia.

He notes that Britain is the only member of the 12-nation European Community and its 25-nation sister body, the Council of Europe, without a written constitution.

"The result is that Britain is now regularly facing constitutional issues it is ill-equipped to handle," Barnett says.

King John's "great charter" was imposed on him by rebel barons who saw it as a barrier against the monarch's arbitrary actions. It remains the basis of Britain's common-law system and such institutions as the right of trial by jury and habeas corpus.

But growing numbers of British political observers and groups say its rambling provisions do not fit with modern times. The Liberal Democrat party will enter the coming general election with calls for a written constitution guaranteeing civil liberties at the center of its policies.

The opposition Labour Party also is proposing constitutional reforms, including a separate parliament for Scotland, a British bill of rights, and the abolition of the House of Lords.

The ruling Conservatives will fight the election on the "Magna Carta principle a defense of the status quo - but Douglas Hurd, the foreign secretary, whose work brings him into regular contact with European governments, is on record as saying that his party should give "serious thought" to constitutional change.

Prominent members of Britain's political and legal establishment are now counted among those who demand that the country should have a bill of rights.

Lord Scarman, a former judge of the Court of Appeal, has been campaigning for a written constitution for decades, arguing that allowing Parliament to pass laws without regard to a framework of citizens' rights is a recipe for unfairness.

Since Britain entered the European Community (EC) 19 years ago and began rubbing shoulders with countries where human rights are enshrined in written constitutions, Mr. Scarman's campaign has been taken up by a younger generation.

Last November, Charter 88 organized its own convention in Manchester at which four draft constitutions were considered. All the drafts indicated that across the political spectrum there is a demand for fundamental change.

Tony Benn, the left-wing Labour Member of Parliament (MP), proposed an elected upper chamber to replace the House of Lords. He also argued that women should have 50 percent of the seats in the lower and upper houses, and that the government should appoint a human-rights commissioner with the power to refer to Parliament abuses of human rights by the courts.

Frank Vibert, deputy director of the Institute for Economic Affairs, a right-wing think tank that former prime minister Margaret Thatcher favors, presented a draft that called for taking away the queen's right to give final approval to new laws.

Mr. Vibert also proposed that a Parliament-elected official should give formal assent to legislation and that the European Convention on Human Rights should be made part of British law. An elected upper house, he argued, should act as a constitutional court to monitor observance of a written constitution.

Barnett is convinced that the Charter 88 constitutional convention has already had a major impact on the thinking of the main political parties.

"The European Court of Human Rights in Strasbourg continues to have cases referred to it by British citizens unhappy with the way the law of their own country is administered," he says. "More often than not the court finds in favor of the citizen. The reason is that it is applying a code of human rights that is absent in the British system."

Britain and the European Court are deadlocked on the question of lengthy detention before trial. The Strasbourg court has ruled that such detention is wrong. Britain argues that it is lawful under the Prevention of Terrorism Act used to cope with sectarian violence in Northern Ireland.

Roy Hattersley, Labour's deputy leader who will probably become home secretary if his party comes to power at the general election, is a dedicated supporter of constitutional reform. "For socialists," he says, "reform of the constitution is one of the ways by which a more equal, and therefore more free, society can be created."

The Labour Party has adopted a determined approach to the way members of Parliament are elected. Last year Neil Kinnock, the party leader, appointed a 20-member task force of political and constitutional experts, headed by Raymond Plant, a professor of politics at the University of Southampton, to examine this aspect of Britain's political system.

MPs are elected under the "first past the post" system, whereby a person who gains only one more vote than an opponent receives is automatically elected.

Mr. Plant and his committee are examining several forms of proportional representation (PR), in which voters are asked to rank candidates in order of preference. Second preferences are distributed to reflect the numerical support gained by candidates of smaller parties. Supporters say that distributing the votes of individual electors among candidates ensures a more representative Parliament and gives smaller parties stronger representation. Most EC parliaments operate under a PR system.

Significantly, Labour says that if it wins the next general election, members of its promised Scottish Parliament will be chosen by a PR system.

Official Conservative policy, however, remains unchanged on either a bill of rights or a new electoral system. John Patten, a Home Office minister, dismisses the former as unwise and the latter as unnecessary. "The reformers want to sweep away the existing constitutional edifice and replace it with grandiose, ill-thought-out schemes," he says. "I think we should call the repairman only when it is necessary."