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.