The Telegraph: We need a new Brexit constitution to replace the shattered old order

19 September 2019

By Allister Heath

After leaving the EU, we must reform how we are governed to become a rebooted, independent UK.

When the facts change, as Keynes put it, I change my mind. I’ve always been fiercely opposed to a written constitution: Britain has done brilliantly without one for hundreds of years, so why fix something that isn’t really broken? Why rip up the core of our political identity, unless one’s aim is to vandalise our institutions, risk undermining the monarchy and sever future generations’ connections to their past? The French and Americans have written constitutions, and that’s hardly worked out perfectly.

But it is now clear that I was deluding myself: our once-great constitution is, to use a technical term, kaput. It is pathetic to pretend otherwise out of nostalgia. The debate is over: the old order no longer exists. It has been swept away by stronger forces that finally met their match in 2016.

If we do leave the EU, Britain will have to reform and codify how we are governed, strictly protecting individual rights and liberties, while ensuring that democracy can no longer be routinely subverted by an arrogant, know-it-all elite. We may need a full-blown charter, or simply a series of fundamental laws, but the new constitutional settlement will require widespread public support. It will be a seminal moment in our nation’s history, and a key component of a rebooted, newly independent UK.

We must never again tolerate the sort of dysfunctionality that has overshadowed the past few years. There has been the outrageous spectacle of MPs trying to cancel the most important referendum in modern European history, the astonishing power grab by John Bercow and his Remainer allies, creating a rival (yet useless) executive, and now the US‑style horror of a Supreme Court, that few voters even knew existed, being encouraged to turn themselves into yet another set of legislators.

Whatever the outcome of the present case, the conclusion is inescapable: the old British unwritten constitution, a system which had worked far better than more formalised models, is defunct. It was the product of a place, a culture, shared assumptions and values, and a series of historical circumstances and accidents: once broken, these sorts of organic institutions, like Humpty Dumpty, cannot be put back together again.

Too much has gone wrong. Our catastrophic membership of the EU, the seemingly inexorable Leftwards shift of the governing classes, the cultural hegemony of an imperialistic “rights” culture and of a corrosive postmodern ideology, the Blairite legal reforms (including the 1998 Human Rights Act), the unfinished and one-sided process of devolution, the emasculation of other forms of local government, the grafting of referendums on to a parliamentary system, the creation of a separate Supreme Court, the decay of the House of Lords, the Fixed-term Parliaments Act: all have conspired to trash our old constitutional settlement.

Those who believe the next (hopefully Johnsonian) government will have a majority in Parliament and that this will fix everything are misdiagnosing the scale of the crisis. Thumbing through old political textbooks from the Sixties, it is hard to know whether to laugh or cry: the shift in the way we are governed has been immense, mostly for the worse. Winston Churchill and Clement Attlee had enough in common to allow unwritten rules to guide their behaviour, even in the midst of existential pressure; Boris Johnson and Jeremy Corbyn do not. Old-fashioned class warriors – MPs as well as trade unionists – believed in democracy and nation-states; the new cultural warriors are at war with both.

So what should be done? In the short term, the next government will have to legislate to prevent MPs from ever “seizing control” again and then repeal the Fixed-term Parliaments Act. The power to conduct international treaty negotiations must be left solely to the executive; at the same time, the ability to prorogue needs to be codified, alongside much else.

The governance of the Commons must change radically, with the Speaker bound by clear rules. Any MP who wants to change party should be forced to call a by-election. The House of Lords will have to be scrapped or, preferably, comprehensively reformed, with a debate about who should belong to it and what proportion should be elected and how. An English Parliament is long overdue, with tax and spend genuinely devolved to a properly federalised United Kingdom.

The civil service is in desperate need of an overhaul: ministers should become CEOs, with staff working directly for them. In a world where special advisers have become so important, we ought to discuss whether more ministers should be directly appointed, or belong to the upper rather than lower chamber.

The next government must take to heart Lord Sumption’s Reith Lecture, perhaps the best political analysis of the year, and row back on the “rights culture”. There has been too much mission creep, and too many decisions have been taken by the courts, rather than left to democratically elected politicians. This doesn’t mean that we mustn’t continue to protect rights: on the contrary, I would argue that we need a robust British Bill of Rights to replace our membership of the ECHR.

But the courts shouldn’t be unelected legislators. If that proves too hard a proposition, we will have to move to a US-style system of explicitly political appointments. Every new Supreme Court justice will have to be chosen by the government and scrutinised and voted on by Parliament. The best way to rein in our increasingly detached and weirdly arrogant ruling class is to ensure that direct and indirect democracy can coexist. Voters themselves must be able to force referendums, like in Switzerland and many US states; outcomes should be legally binding. We need to protect the public from cartels of politicians.

It is time to stop pretending that our constitution can be repaired, and to start thinking instead about how to construct a fresh institutional machinery fit for a 21st-century, self-governing and diverse nation. One central task will be to protect the monarchy and its role; another to make sure the government works for the people and not the other way around. It will be a huge undertaking, fraught with risk, but one that we cannot afford to delay any longer.

You can access the full article on The Telegraph website here.


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