The government must recast its plans in order to prevent Brown and Starmer drawing issues of policy and politics further into our courts.
Gordon Brown has been thinking, and the results should concern us all.
In a 155-page Labour Party document that had a distinct “back to a New Labour future” feel, we are treated to a comprehensive trashing of all that is past and a “Year Zero” approach to the British constitution that means that none of the lessons of the rampant majoritarianism of the Blair and Brown years have been learned.
Much has rightly been made of his proposals to hand even more powers to the Scottish Government, when Holyrood still doesn’t use all the powers it has already been given, and for their unoriginal musings on an elected House of Lords without any real attempt to look at the precise role it should be playing in the first instance. This would meet the real test of meaningful reform. Conveniently, the report ignores the considerable strides made by the Conservative Government towards further local mayoral government that have been made in recent years.
An even closer look at this glossy document, however, reveals proposals that should send shivers down the spines of everyone who believes in fundamental human rights and obligations, and in a system of democracy where Parliament is supreme and where no Parliament can bind its successor. The Commission recommends that a “new constitutional statute” be created, containing “the political, social, and economic purposes of the UK as a Union of Nations”.
All very laudable, you might think. But then it gets a bit murkier. The report suggests that the new law would act as some form of “guidance”, whilst commenting that “we do not envisage that the statement of the purpose of the UK should give rise to litigation directly”. Although the courts are not able to strike down the legislation itself, the notion that its wording would not at various points become the subject of regular legal scrutiny and debate in our courts is downright naïve. It is revealing that the report ducks the challenge of outlining how this constitution might be policed, whether by supermajority protections or entrenchment, as in the USA and other countries with written constitutions, or by a full-blown Constitutional Court, as in Germany for example.
And then comes the real meat of it: the creation of a raft of socio-economic “rights”, with the hint of even more to come. Rights to health care, education, benefits and housing are all part of their plan. There is no doubt whatsoever as to their intentions, as they say at page 74 that “The rights proposed by this Commission however are the first significant attempt to give a strict legal form as rights to well established provisions taken for granted in the UK and embed them in our constitution.”
Their justification for this concerning departure is the tired old argument that because our NHS and public services are constantly under threat from wicked Tories, they need to be fully protected by the law from their depredations. Apart from ignoring the clear consensus that exists about public services between the main parties and a plethora of statutes creating duties and positive obligations on central and local government to deliver them, these proposals make the perverse assumption that the public needs legal protection from future elected Parliaments of whatever political hue. The “Electoral Dictatorship” of Lord Hailsham is to be replaced by the “rule of lawyers”, it would seem.
A true reform would involve legislation to ensure that any major constitutional change, for example, reform of our electoral system or the House of Lords, would have to be approved by the people in a referendum. A true guardian of our constitution would seek to keep issues of policy and politics as far away from our independent judges as possible unless we want to see a US-style judicial appointment system where the political views of unelected judges often come ahead of their legal excellence.
In rallying to the cause of our common law and those fundamental human rights upon which we led Europe in the aftermath of the Second World War, our first response as Conservatives should be to recast the Government’s proposed Bill of Rights to prevent Labour’s attempt to draw issues of policy and politics further and further into our courts.
