Why Gordon is Wrong on Constitutional Reform

I for one welcome the high level re-start on the conversation around constitutional reform. We all know that much needs to be done to rebuild the trust needed in Parliament after the last year and beyond, but Brown’s announcements yesterday were far from exciting.

I agree that first past the post needs changing so that voters have a fairer say when electing their constituency representatives. But this was the only announcement which I agreed with and with much commentary on AV I’ll not spend any more time talking about it.
What I do want to talk about is the proposed written constitution and reform on the House of Lords.

A written constitution will be disastrous for Britain. Whilst it is true to say that the general principle in Britain is that Parliament is sovereign I feel very uneasy indeed when we give the ultimate power to any arm of the state to write the fundamental constitutional principles of our country. The danger that comes with writing these principles down, and by giving an institution the power to write them, is that they can be taken away again. People may disagree with this sentiment arguing that many civil liberties have been eroded over the last ten years, by Parliament, in line with national security and that protected, written principles are much safer than we currently have them. But this would be just plain wrong.

The historical star of constitution law in Britain, A.V. Dicey, held that our constitution was built upon the foundations of common law rights, common law rights that can’t be taken away. I agree with him. The beauty of our constitution is that no one really knows who has the power to do what.

If Parliament tries to legislate oppressive or unconstitutional laws the courts can step in. This nearly happened in 2005 with the Immigration and Asylum Bill when the Government tried to include an ‘ouster clause’ (preventing judicial review) on some of their legal powers in the Bill. Lord Bingham threatened the Government with the ‘nuclear option’ where the courts would refuse to operate by it. The Government finally backed down and Lord Bingham apologised for over stepping the mark. And this is the very point of my argument. Because no one knows who has the ultimate power each arm of the state operates with restraint, never pushing the boundaries too far for fear of causing a constitutional crisis, and I for one think that this position, where no one has the ultimate power, is a good place to be.

It may be that we have already strengthened these common law rights through the Constitutional Reform Act 2005. In the Act the now not so new Supreme Court was established and, whilst perhaps controversial, the role of the Lord Chancellor changed. Whilst the Lord Chancellor is now much less significant than it was, the Act did, for the first time, recognise his role in protecting the Rule of Law – the rule that everyone is equal before the law, including the Government. This, with the Supreme Court – separated from the Houses of Parliament for the first time – could signal a future of more power in the courts. In 2005 in the seminal case of Jackson, Lord Steyn held in his judgement that if the Government tried to introduce “oppressive” laws it would test the very fundamental relationship between Parliament and the courts. And whilst we have an unwritten constitution Lady Hale rightly recognised in Jackson that it is far from “uncontrolled”.

If we give any one institution the power to write our constitution, a constitution that has slowly evolved over centuries (and noticeably, without revolution, probably due to this) then we risk destabilising the ancient foundations of our constitution.

Following on from ancient foundations is the House of Lords and an elected House of Lords is the wrong way to go. Whilst I understand the arguments of democratic authenticity I disregard them. The House of Lords, as one of the most cost efficient legislatures in the world, plays a vital part in keeping an eye on the House of Commons and the Commons have curbed the powers of the Lords (and rightly so due to its unelected form). Is the Lords supposed to be representative? I don’t think it is – it’s about scrutiny, holding the executive to account and specialist debate. Whilst the parties are obviously represented in the Lords the lack of furore over true party politics, whips and elections makes the Lords a much better place because the only thing they need to think about is getting legislation right. If the Lords misbehave the Commons can use the Parliament Acts to get important legislation through and if the Commons misbehave the Lords can use its power of delay and amendments to curtail the Commons.

If we bring elections into the House of Lords it will change its focus and its purpose and do we think the British people are ready for yet another set of elections when voter turnout is so low for the House of Commons, yet alone for the local and European elections. As Helena Kennedy QC recommended in her work with the Power 2010 inquiry, headline constitutional reform won’t solve the core issues surrounding citizenry disengagement with the political process and more thought needs to be put into getting it right – for the sake of the future of our democracy as we know it.

So whilst Brown perhaps got it right on electoral reform, I think, he got it wrong on constitutional reform and House of Lords reform. That’s only a 33.3% pass mark. Having said that, I’ll be surprised if it actually happens, so I’ll end there.

An Insignificant Future for Europe?

So after decades of treaty drafting, referenda and negotiation we get to the week where we implement the tweaked but long awaited climax of the European ideal, initiated by former French President Giscard d’Estaing so many years ago, with the final implementation of the Lisbon Treaty.

For the first time, a co-operative Europe will have a President and a High Representative of Foreign Affairs and Security to give the Union the international standing and authority it deserves. Yet, in perhaps true form, we have failed completely.

It seems almost ironic that the founding continent of the global power, with its historic empires, has failed to recognise the importance of having a respected and powerful global presence to lead the post-West Democracy/East Communism-post-American century.

Am I just bitter because Blair didn’t get the job? Not really. But I am annoyed that we don’t seem to have our hedgehog sorted and that’s a real problem.

Our hedgehog? That’s right, our hedgehog. The hedgehog is, as described in the business book ‘From Good to Great’, the central concept, the key strategic vision of what an organisation is about. If you don’t know what your hedgehog is you won’t achieve greatness and you’ll just be scurrying around for ever perhaps being good but no where near great.

But its OK, at least we have these positions filled and ready to have a go!

But the undemocratic yet sophisticated appointment of these poor unaware and incapable ‘representatives’ of Europe have a tough job ahead of them. For is it their job to represent the views and policies of the European Union to the world, to drive global co-operation on climate change, international money markets, relieving poverty and securing food, energy and water or is their job to not out shine their employers - the heads of European nations? Do you think they know? I doubt it…

I think the source of the problem here might be that we don’t know what we actually want and this once again comes down to a values based question. Do we want a quasi-federal state of Europe or do we want to remain as nation states? Do we want to be a key player in the ever changing global community or do we want to busy ourselves with internal issues? What is the purpose of Europe and of these new posts?

I think we’re stuck in limbo between the polar opposites of the answers to these questions. This is evident from the appointment of the people put into these offices of state. Let me be clear, I have no criticism of von Rompuy or Baroness Ashton, I know nothing of them at all and I wish them well but I do feel they're being used and indeed were used as negotiation pawns for a Europe unclear on its future.

And this is the biggest problem, a Europe unclear on its future is a Europe unclear to the rest of the world and, if what we are told is correct, the ever increasing role of globalisation risks being a game played by America and China with Europe becoming the old drunken uncle in the corner whose name no one can remember.

The perhaps ironic thing to this whole saga has been the complete lack of democracy; no say (or even conversation / consultation!) on the Lisbon Treaty, no say on what we think or would like Europe to be and no say on the potentially very important people filling the roles of European President and High Representative.

The whole thing is a nonsense and draws obscure parallels with an age gone by where the divine rights of monarchical power decided ‘on the peoples behalf’ what was right and what was wrong in the global empire in which it sat.

Lets hope von Rompuy is just pulling our leg and turns out to be progressive.

In centralising our politics, have we forgotten our values?

The Labour Party is a party of social democracy. We believe in equality, fairness and justice. But have we forgotten what our core values mean and allowed them to drown in the quick sand of modern political management?

Classic social democracy is a belief in the affect of politics in progressing our communities over a belief in purely economic based solutions.

It is the progressive element that makes us social democrats (and not ranting trots) and it's in the modern setting where our fundamental belief in social democracy is mixed with elements of capitalism; providing a mixed economy of free markets with comprehensive welfare state provision.

This Third Way, established in the modern setting (in our country at least) by the Clinton-Blair era, aimed to bring these traditionally left and right wing areas together.

But I do worry that the difference between values and management has been missed. Of course it is true to say that values drive the decisions that need to be made every day in Westminster but it increasingly appears to be the case that the centralisation of left and right has lead to a void of value based debate and politics.

This is important because, on the whole, I think it would be fair to say, people don’t care too much about the technical management of our country, as long as it works. But they do care about what it means to be British, what we aim to do as a country and what it is that we stand for as a people.

The lack of this type of debate from the main political parties has not only led to the disengagement we see today but also, I fear, the rise of far right extremism.

In current times, where the state has invested unfathomable amounts of public money into saving the private sector, the idea of social democracy is bought into focus. It is the careful balance between market liberalism and social democracy that needs to be maintained.

In an academy school I work with, a prime example of a third way policy, the school has a fantastic new building and resource. The management of the school is better than it was when it was more restricted through the Local Education Authority and the education its pupils receive is improving.

But, the school seeks to do more work in the community and recognises that it can do good work outside of the daily teaching time. But it can’t afford to because it needs to be able to pay extortionate rates of rent to use its own building because the buildings owner, a private company, must make a profit from its investment; an investment that was probably funded largely through its tax burden in the first place.

It is here where problems lie because whilst there are many benefits to this policy – benefits, some may argue which can outweigh the negatives – the fundamental negative is that the owner’s priority is profit not people.

If I were to ask a parent if they would prefer a school owned by an organisation whose purpose is to provide a fantastic education or to make a profit I think I would know what the answer would be. Yes, I know I’m being too simplistic with that argument (“surely it can be both” you cry and what about the charitable organisations that run academies…I agree with you) but the values based question here is should the sole purpose driving decisions be about what is socially ‘right’ or what is profitable?

This is a mere illustrative example of my point which, I empathise, can ignite a whole debate on education provision and academy schools.

But the real point that I’m perhaps incoherently trying to make is that when we consider policy announcements or campaign for change or advocate for decisions that have been made – as many of us do on a frequent basis – lets take the time to think about the values that are being questioned, applied or considered and remember our strong, personal belief in social democracy and what that should mean to the people in our communities.

For I believe that it is when we pose our questions and our arguments in that light that we connect the most with the people we are talking to and only then can we really engage people and differentiate between what is right and, quite simply, complete tosh.

We failed to do this with Europe. People were confused between the constitution and the treaty, the consequences of what that might mean and near clueless about its detail. Even an undergraduate law student, discussing EU law, described to her friends that the Lisbon Treaty would allow the “commission to make us have the euro”. I quickly interrupted in hopefully a not too obnoxious or patronising manner.

We need to be honest and straightforward with people and pose the questions from a value based philosophy. The questions should not have been around the detail, at least to begin with, it should be around the consequences of what the Lisbon Treaty means for Europe and Britain within Europe. And, quite frankly, I think the British people should have been given a referendum on that question long ago, regardless of any particular treaty.

I so strongly believe that if we start thinking in a more values based way, campaigning on values and not just manifesto management points that we will prosper and that we will start to bring the flames back into the fire of our democracy; bringing it back from the current state of apathy, mistrust, ever decreasing voter turnout and perhaps, the brink of democracy as we know it.