23 March 2020
By Lord Morgan
We should welcome the proposed Constitution, Democracy and Rights Commission, but proceed with caution.
In the Conservatives’ last manifesto was a proposal for a commission to examine the constitution, democracy and human rights. It remains shrouded in mystery. When it was raised in the Lords, even the admirable Lord Howe was unable either to list its membership or even to explain what precisely it would be about.
Even so, the proposal of a commission is to be welcomed. For at least a decade, the British constitution has seemed to be in crisis. The rule of law and parliamentary sovereignty, Lord Bingham’s core principles, have been under attack – even perhaps in conflict with one another. The future of our citizens’ human rights post Brexit is unclear. The last general election saw the prime minister apparently running not just against the Labour opposition but against Parliament itself and its alleged Remainer elitists. We need a new exploration of these problems.
But the new commission could offer dangers or opportunities. It could be used for purposes of revenge directed at individuals or institutions who had opposed the government. It could turn its fire on the judiciary – and especially the Supreme Court after the two Gina Miller cases when eminent judges were attacked as ‘enemies of the people’. The courts and the rule of law – guarantors of the freedom of our citizens for centuries – could be diminished in the Supreme Court’s membership or its powers. Baroness Hale’s verdict in the Miller cases was condemned for politicising the judiciary – but actually only spelt out age-old principles of parliamentary supremacy.
Again, Parliament (particularly the pro-European House of Lords) could come under fire. Since 1939 its powers have been undermined by prerogative powers and the growth of Henry VIII powers, a process likely to continue with Brexit, as illuminated in Boris Johnson’s unlawful prorogation which all 11 judges threw out.
“The future of our citizens’ human rights post Brexit is unclear”
The devolution settlement could be seriously disturbed in our over-centralised union-state. Scotland could be further alienated by being excluded from key aspects of the Brexit negotiations with the EU. Northern Ireland will be sold down the Irish Sea, imperilling the Belfast Agreement. Wales will be a victim of Henry’s powers as it was of his tyrannical Act of Union. Our union is now in real danger.
Elsewhere, civil servants are attacked for giving independent advice. The same intolerance is at work over the BBC, the universities, even the blameless Professor Mary Beard. And yet the new commission also offers opportunities. Professor Anthony King declared out constitution to be “a mess”. It has no effective rule-book and relies on the vagueness of custom and convention. It suffers from what Edward Shils called “the curse of secrecy” visible from the Windrush to Aberfan.
First, devolution is not a stable basis anymore. The union has been threatened in the 2017 EU Withdrawal Bill. Scotland prefers popular sovereignty to Westminster sovereignty; Wales has been unjustly treated under our so-called ‘asymmetrical’ (ie unequal) devolution and lacks a judicature of its own. The government’s commission thus might consider the case for a federal constitution.
The supremacy of Parliament, variously affected by the role of referendums, by the fact of devolution and the advent of Brexit – and touched by judicial review in key elements – also requires redefinition after the disorder of the past few years.
The role of the Supreme Court is absolutely vital to our freedoms. But a judge-based judicial review alongside a sovereign parliament is difficult to reconcile. Of course producing a written constitution would be time-consuming. Solutions are nevertheless possible. King’s College, London’s research group, proposed a new codified version of Magna Carta. In particular it prescribed a permanent Constitutional Commission to monitor new developments – and to adjudicate when things go wrong or governments misbehave.
We cannot rely on public-spirited citizens like Gina Miller to bail us out every time. The state should have its own statutory remedies and entrench equality before the law. Otherwise, a truly equal society will not be possible.
Lord Morgan is a Labour peer. His debate on the establishment of a Constitution, Democracy and Rights Commission is scheduled for Thursday 26 March
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