Do you get excited about the constitution? Frankly, not many Britons do. Enthusiasts for constitutional change exist, but they form a fairly small and often eccentric minority: a slightly dreary congeries of earnest academics, lawyers, the comfortable leftish urban middle class and of course politicians (or at least some of them). This matters. You should always look carefully whenever a member of this group proposes plans for reform of our system of governance. As often as not they involve transfer of power to, or job-creation schemes for, exactly these classes, along with semi-official backing for particular political activism. The most recent example, Labour’s nascent plans for the constitution drafted by Gordon Brown and leaked to the Guardian’s Jessica Elgot last week, is a case in point.
In summary (the Guardian chose not to publish the document itself), these included replacing the House of Lords with an “upper house of nations and regions” tasked with safeguarding the constitution and referring the government to the Supreme Court; constitutionally guaranteeing social and economic rights; and empowering local people to promote bills in Parliament via democratically elected bodies.
To an academic with an innovative article to write, or a bourgeois activist with a bee in his bonnet and a Lib Dem monthly meeting to address, these may seem the most obvious things in the world. Looked at more closely, they should worry us.
These proposals move to legalism over democracy
First, lying behind them is a clear job-creation scenario for the worthy but uninspired middle classes. Whether elected or appointed, an upper house representing nations and regions is likely to be populated by two types of person. One is second-rate politicians who either could not make, or have burnt themselves out in, Holyrood in Edinburgh or the Senedd in Cardiff and now seek a more comfortable billet (rather as superannuated Remainers congregate today in the House of Lords). The other is earnest activists who have climbed the greasy pole of fashionable academia or local government, delighted with the opportunity not so much as to provide wisdom as to act as paid representatives of the nation or region that sent them there and mouthpieces for official regional grievances. Either way, both will doubtless relish the idea of being paid to promote their ideas at the public charge.
So too with the slightly curious idea that “local people” should be empowered to promote bills in Parliament through democratically elected bodies (in addition, apparently, to their existing ability to do so if they can find enough sympathetic MPs). It is not quite clear whether this means the creation of entirely new bodies or merely the partial repurposing of existing ones such as local authorities — nor yet how these bodies, whichever form they take, will decide which views genuinely represent those of “local people”, and if they do whether they are worth taking forward. One thing is not in doubt: whatever the effect on local initiative or public discourse, the result will be more congenial jobs for the reform-minded great and the good.
A second likely result is the promotion of activism at the public charge: radicalism, if you like, on the rates. Whatever you might have thought of last year’s Supreme Court decision to style itself the guardian of constitutional virtue over the issue of the prorogation of Parliament, at least the claimants were a self-financed private group. No longer, however, under Gordon Brown’s plans. His revamped House of Lords will itself take on the role of constitutional guardian: something which is likely to make it not so much a watchdog but, rather awkwardly, a kind of second semi-official opposition. Its proposed duty to refer the government to the Supreme Court if it thinks something untoward is going on means that in future claims like the prorogation case are not only likely to get more common, but will be officially encouraged and publicly funded. Welcome to the land where one arm of government is specifically set up to engage in litigation to make life difficult for the rest of the administration.
Which brings us to the third, and possibly the most worrying, problem with these proposals: a commitment to an increasing move to lawfare, and to legalism over democracy. One example is the proposal already mentioned for the Upper House to refer the government to the Supreme Court on constitutional matters: instead of traditional reference to the ballot-box where an administration is alleged to have misbehaved, we now have a strong impetus for such decisions to be decided by unelected — and one suspects at times slightly embarrassed — judges.
It’s always advisable to read the small print
This is as nothing when compared with the innocent-sounding proposal for a constitutional protection for social and economic rights. Though not spelt out in detail, this would, one suspects, involve introducing into our domestic law — and perhaps in some informal way entrenching — the rights contained in the International Covenant on Economic, Social and Cultural Rights, a wide-ranging and somewhat flexible UN instrument signed by the UK but currently enforceable only politically. If you thought the current reading of the European Convention on Human Rights, presently incorporated through the Human Rights Act 1998, sometimes trenched uncomfortably on democratic decision-making on controversial political issues, this is true in spades of the Covenant. It protects not so much the negative entitlements against state action in the Human Rights Convention as positive rights, whose extent is for the most part highly controversial politically: rights to work, for example, to social security and a standard of living, to higher education, to cultural life and so on. The UK has already faced wide-ranging criticism from activist UN bodies for what they see as inadequate application of these positive rights. To anyone who believes in a flourishing democracy, the prospect is not attractive of opening up to wholesale judicial review large swathes of our tax, social security, social care, discrimination and employment law, and their control in practice by legal precedent rather than the ordinary political process.
You may not like the way the present government is doing things or its handling of education, employment or the cost of living crisis. You may even want to elect another party with a radical new approach to the way we are governed. Before you do, it’s always advisable to read the small print, and perhaps be a little careful what you wish for.
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