The Guardian: Former top judge calls for fundamental review of politics post-Brexit

4 February 2020

By Owen Bowcott, Legal affairs correspondent

Reform of the voting system and the monarch’s role in appointing a prime minister in a hung parliament should feature in any future review of the UK’s constitution, a former supreme court judge has urged.

Addressing the government’s pledge to establish a constitution, democracy and rights commission, Lord Sumption has called for a fundamental reassessment of political arrangements after Brexit.

In both the Conservative election manifesto and again in the Queen’s speech, Boris Johnson promised to establish two commissions: a royal commission on the criminal justice process and a more wide-ranging commission “to restore trust in our institutions and in how our democracy operates”.

The Ministry of Justice is the sponsoring department for the criminal justice royal commission; the Cabinet Office is responsible for the constitution, democracy and rights commission. No further details of either commission’s scope, personnel, timing or ultimate aims have emerged this year.

Some fear they will merely enable the government to extract revenge for its two landmark defeats in the supreme court involving article 50 and the prime minister’s attempt to prorogue parliament.

Downing Street briefings this week blaming failures in anti-terror legislation on “the shocking influence of lawyers on policy” have added to suspicions that Johnson is eager to provoke a public row with the legal establishment.

At a meeting hosted by the Institute for Government in central London to assess challenges for constitutional reform, Sumption said: “I don’t see how any constitutional commission can fail to look at the main mechanism by which people choose a a government … You can’t ignore the electoral system.

“I think they need to look at whether some form of proportional representation should replace first past the post. I don’t think much of the alternative vote system. Some form of proportional representation would have the advantage – at a time when compromise is difficult to achieve within political parties – of [enabling compromise] to occur between parties.”

Sumption, a supreme court justice between 2012 and 2018 and author of last year’s Reith lectures on the relationship between politics and the law, also said that despite the Queen’s known preference for keeping royalty out of politics, “we need to look at the role of the monarchy”. He added: “We need to have an ultimate constitutional arbiter as every republic has, which selects a prime minister in a hung parliament.”

Gisela Stuart, the former Labour MP and chair of the Vote Leave campaign, who is a member of the Steering Committee of the Constitution Reform Group, said Brexit had exposed the problem of “who speaks for the English?”.

“Should there be an English parliament? We require an over-arching system which takes powers down to lower than where they are now,” she suggested, arguing for greater devolution.

Gina Miller, the victor in both supreme court constitutional cases, said of the proposed commission: “I can’t figure out whether it’s revenge or reform.” She was concerned about proposals – again not formulated – for restrictions on judicial review challenges against the government.

“I would argue there needs to be an increase [of legal scrutiny of government decisions],” she said. “It’s not just about political questions. What will this attack mean to social justice?”

Sumption believed there was evidence of excessive and inappropriate use of judicial review to overturn government ministers’ decisions. But he added: “The next generation [of judges] coming up are more cautious about operation of their powers.”

Dr Catherine Haddon, of the Institute for Government, suggested that Citizens’ Assemblies should be established to ensure wider public involvement in any future commission’s work.

Neither the MoJ nor the Cabinet Office have commented about the future role of the two commissions.

You can access the full article on The Guardian website here


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