WHERE IS BRITAIN GOING?

CAN WE MANAGE WITHOUT A WRITTEN CONSTITUTION?

 

PREFACE

 

It is a great pleasure and a privilege to have been invited here this evening to deliver this talk in honour of the memory of Lord Atkin and to find an excuse to come into what I have always regarded as one of the most beautiful stretches of country on our island. My one regret is that I am going to have to drive back to London tomorrow morning when I would dearly like to disappear on foot into the hills with which I am very familiar.

Lord Atkin was without doubt one of the great jurists of the 20th century. He expounded the neighbour principle that underpins the modern law of Tort in Donoghue and Stevenson. He is responsible for the standard definition of what constitutes libel-a statement “tending to lower a person in the estimation of right thinking members of society”. But perhaps above all he will be remembered for his dissenting judgment in Liversidge v Anderson in 1941, namely that an act of a government minister, affecting the liberty of the citizen should be capable of review on an objective basis and not unquestionable once it was shown that he himself believed he was acting reasonably. Today we take this for granted, but in the days before the Human Rights Act it was a radical statement indeed of the law. In coming here therefore, I am conscious that I must try to live up to this radicalism in the topic I have chosen for this talk.

In asking me here, I am also aware that the principle topic on which I have been involved in recent months has been my opposition to the Government’s proposals to scrap the Human Rights Act and replace it with a British Bill of Rights. This proposal is likely to leave us in a state of incompatibility with our obligations under the European Convention on Human Rights, an important international treaty of which the United Kingdom has been up to now a key adherent and promoter and I believe this to be a serious mistake. But I have spoken about this a great deal in recent months and I rather fear that concentrating on this might prove a bit repetitive. I have however in the course of this debate on the future of the Human Rights Act become convinced that the issues raises cannot be viewed in isolation. The hostility that has been expressed against the interpretation of the Convention by both our domestic courts and the European Court of Human Rights in Strasbourg seems to me to be linked to a deep rooted concern amongst some politicians that our traditional forms of governance are being eroded by judicial activism and that this issue is not confined to human rights, but also extends to other examples of the judiciary overriding decisions of the executive and even of Parliament as we have seen recently with the matter of the Prince of Wales’ correspondence in the Supreme Court case of Evans v the Attorney General.  Moreover the issue goes still further. Under the impact of our membership of the European Union and now with devolution of primary legislative functions to Scotland, Wales and Northern Ireland, our historic un-codified constitution is being subjected to processes of change of an unprecedented character. It is not surprising therefore that this should manifest itself in areas of stress and controversy.

I want this evening to try and explore these issues, both as a lawyer and as a politician. In doing so I want to emphasise that I am not at present an advocate of some particular solution to the problem I am going to examine. Indeed as a traditional Conservative I have long been an admirer of the constitutional inheritance given to us by our forebears and I view the possibility of change with considerable misgiving as do many who share that philosophical outlook. But admiration of a historic legacy cannot blind one to the challenges we now face in this area. Constitutions exist to serve the needs of the citizens of our country. If our constitution it is not in fact doing so, then we need to consider what might be done to put things right.

 

PARLIAMENTARY SOVEREIGNTY

 

At the heart of our present constitution lies the central principle of parliamentary sovereignty. The Queen in Parliament, acting with the consent of her Lords and Commons, has an exercise of power unlimited by any other lawful authority. Today, at least in theory, this means that any government with a parliamentary majority, could pass a Bill requiring us to collectively worship the moon every other Tuesday. Provided the Queen were minded to give royal assent to it, no such assent having been withheld since the reign of Queen Anne, then that would be the law of the land and we could be punished for not complying. Such things may seem fanciful, but as Henry VIIIth’s Act of Supremacy showed in 1534, the use of parliamentary authority to coerce the subject on matters of deepest conscience and belief was once a reality and was used in that case with entirely revolutionary effect to overturn the existing order of Catholic Christianity under papal authority, that most contemporaries would have considered to be permanent and immutable.

In its modern form however, the doctrine is a rather more subtle one. It owes its origins to the struggle between the monarch and parliament in the 17th century. James 1st, coming from Scotland, lacked understanding of the requirements of legality as understood south of the Border. When at Newark on his way to his coronation, he ordered the summary execution of a cut purse, without any hearing or due process of law to the consternation of his English entourage, as this was a flagrant breach of a statute of 1354. He had been doing this sort of thing in the Scottish Borders-it was called Jeddart Justice. He told Parliament in 1610 that “The state of the monarchy is the supremest thing on earth….(Kings) exercise a manner or resemblance of divine power upon earth”.  He believed himself entitled to rule free of constitutional restrictions. Perhaps not surprisingly it brought, first him and then his son Charles Ist and his grandson James IInd into collision with Parliament and his subjects, particularly lawyers. When following a civil war and decades of political conflict Parliament finally enshrined its primacy over the Crown in the Bill Of Rights of 1689, its 13 clauses created the powers and privileges parliament enjoys today and asserted the primacy of the law over the will of monarchs. In particular Clause 9  in its traditional interpretation created the principle that the actions of Parliament cannot be impugned in any court and that statutes passed by parliament and given royal assent, may be open to interpretation by our courts so as to give them effect, but cannot be overturned.

But to this doctrine of parliamentary sovereignty, is closely linked the implicit principle that this sovereignty will also be exercised within certain limits. In this 800th year of the sealing of Magna Carta, it is a good starting point to take, because we remember not just a historical event but also the creation of a national narrative that could be described as the creation of a  national myth. The Barons who were responsible for obtaining it from King John had of course preoccupations a little removed from our own.  They were dealing with a King who was operating outside the acceptable norms of kingship in the early 13th, not the early 21st century. He was directly threatening their personal interests and potentially their lives if they could not curb his tyrannical tendencies. But although as a peace treaty it was a total failure, as civil war between John and the Barons resumed within weeks, its reissue after John’s death, through the genius of William Marshal, Earl of Pembroke, that long suffering but loyal adviser of the King, who wished to end the war and protect the young King Henry III, to whom he had been appointed the guardian, caused it to become embedded in the national consciousness of medieval England. Its legacy is key to an understanding of a widespread view in our country today on the limits of government and our rights as the Queen’s subjects.

Firstly the Charter was of great importance because it was very effective in reducing the medieval monarch’s ability to raise money by arbitrary fines or levies. This meant that there was now little option but for a king to summon councils, or as they were called by the 1320’s “parliaments”, to approve general taxation. Once the Commons emerged as a distinct body by the end of the 13th century, this practise was institutionalised, as was the Commons power to demand the redress of grievances in return for the taxes. It can properly be seen as a seed of modern parliamentary democracy.

But, as importantly, the Charter expresses an insistence on concepts of justice that were seen by the Barons as inherent to the realm and land of England, of which they were a part and which 150 years after the Norman Conquest they clearly saw as a polity, not just a place where they had estates and wealth. It is particularly noticeable in the two surviving clauses 39 and 40 which concern the prohibition on punishment without due process of law and the promise not to delay or deprive a person of justice. These are often cited today as the defining statements on the Rule of Law and the limits of arbitrary state power. But the Charter more generally speaks repeatedly of “the law of the land”, the “law of the kingdom” and the “law of England”. This law was not written down but it was supposed at least in theory to offer men full justice according to their status.  It drew on ideas of good and bad kingship that derived from the Bible and the coronation oath introduced in England in the 9th century, which required the maintenance of peace and justice and which by the 11th century was held to be the “laws and customs of the realm”.  The theological and canon law input of the archbishop of Canterbury Stephen Langton, who was present at Runnymede is also apparent. He was a key figure in creating the Charter. It is unlikely to be coincidence that he both believed in royal power, but only that exercised within prescribed limits. He had written a treatise on Deuteronomy that criticised “modern kings, who collect treasure not in order that they may sustain necessity but to satiate their cupidity”.

In the century after the Charter was sealed we can see it being invoked repeatedly. By 1297 it was issued as a statute. In 1300 we have Essex peasants using it to complain of their Lord’s bailiff’s behaviour, in the manorial court. Kings were required to reissue it on accession. It was extended six times in the 14th century at the request of the Commons and applied to all. By the mid 15th century we have a Chief Justice Sir  John Fortescue writing a treatise De Laudibus Legum Angliae, (In Praise of the Laws of England). He did not refer directly to the Charter but his work is a study of English exceptionalism that derives straight from it. He stated that “The King of England cannot alter nor change the laws of his realm at his pleasure”. A statute required the consent of the whole realm. He also deprecated the use of torture, lauded the system of trial by jury and its uniqueness to England, stating that “he would rather twenty evil doers to escape death though pitie, than one man be unjustly condemned”.

In the oath of office taken by the Attorney General on appointment, which is of Tudor origin, I noted with interest that I was required to say “I will duly and truly minister the Queen’s matters and sue the Queen’s process after the course of the law and after my cunning……I will duly and in convenient time speed such matters as any person shall have to do in law against the Queen as I may lawfully do, without long delay, tracting or tarrying the party of his lawful process in that that to me belongeth..” Thus in serving as the Queen’s lawyer and representing her legal interests I was also made to promise as required by clause 40 of the Charter not to abuse my position to delay justice for anyone else.

It is indeed a remarkable feature of our constitution that even today the foundations of good governance and justice still lie in the coronation oath taken by our present Queen at her coronation and in the oaths taken by numerous ministers, public officials, police officers and judges on appointment and which in effect bind the office holder to be a servant of the sovereign in the fulfilment of her own oath. As a republican, Tony Benn may not have liked it, but in the absence of a written constitution it is the ethical foundation of our state. Having as Attorney General, taken oaths in front of dozens of judges assembled together and kissed the Queen’s hand on appointment, I can assure you that one is left in no doubt as what you are there to do.

So it is not surprising that this theme was also prominent in the dispute over primacy between King and Parliament in the 17th century. Sixty years before the Bill of Rights, Sir Edward Coke, the Lord Chief Justice of James 1st, defied the King and argued that his sovereignty was limited by rules of natural law and not just by the need to govern through Parliament. When the King insisted, as an exercise of prerogative right that proceedings challenging  the crown’s right to grant a benefice be stayed, Coke refused saying “the stay required by your Majesty was a delay of justice and therefore contrary to law and the judge’s oath.”  He developed an idea of an “Ancient Constitution” coming from the Anglo-Saxons, reinforced by the Magna Carta and now being subverted. Of course this was myth but it was of great potency. In Dr Bonham’s case he went further and commented that  “ in many cases, the common law will control Acts of Parliament and sometimes adjudge them void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge it to be void”. By the end of the Civil War, this them was being taken up by the Leveller John Lilburne who was claiming that the Magna Carta was the “indubitable right and inheritance of a free born Englishman” and claiming that any legislation contrary to it, however enacted, was void.

Thus the Bill of Rights of 1689, in asserting the primacy of Parliament also contains the seed by which that primacy might be considered to be limited. If the major accusation against James IInd in the Bill of Rights of 1689 is that he has sought to “subvert and extirpate the Lawes and liberties of the Kingdom”, then what if it was the government of the Crown with a parliamentary majority that sought to do it? On this, of course, the Bill of Rights is silent. Its drafters saw Parliament as the defenders of a tradition that included Magna Carta and Habeas Corpus, not its underminers.  But in the following centuries this issue has been a lively topic. It lay at the root of the argument of the American colonies, in their Declaration of Independence, complaining of the British Government and Parliament’s oppressive taxes.  And these principles of legal and political rights have been invoked at the time of the Great Reform Act of 1832, the Chartists in the 1840s and the Suffragettes who compared themselves to the Barons of 1215 in demanding the vote for women and in resorting to violence to obtain it when blocked by the view of a parliamentary majority.

And while our tradition of parliamentary sovereignty has through practise been hedged with powerful conventions about the way the State should behave, those conventions have also sometimes been ignored, usually by British Governments trying to curb freedoms when tempted to do so by threats to public order or national security or simply for administrative convenience. We can see convention working to stop the last Labour government when it wanted to enact 90 day and 42 day pre charge detention.  The hostility of the Commons destroyed the proposals. But convention has often failed to prevent the behaviour of public authorities towards vulnerable or relatively powerless groups, be it the elderly or  children in care, or the ill treatment of detainees such as happened in Kenya during the Mau Mau rebellion or in Northern Ireland during the Troubles. Governments commanding a majority can also ignore conventions and deeply respected principles when enacting legislation, if they choose to do so. As was shown in the Bancoult case in the House of Lords in 2009, Clause 40 of Magna Carta may have prohibited exile, but this did not prevent the lawmaker making whatever law it saw fit that might authorise this, in a British Overseas Territory, so as to permanently exile the Diego Garcians from their island homes.

 

INTERNATIONAL LAW

 

Furthermore alongside this, there has also been, since the end of the Second World War, a major process of change in the open and public commitment of states to the maintenance and observance of certain standards of behaviour. The United Kingdom has been at the forefront of this process and indeed started engaging in this over 200 years ago. When I was Attorney General, I enquired of the Foreign Office as to how many treaty obligations we were adherent. They were unwilling to go back before 1834, but indicated that since that date they had 13200 records of treaties and agreements that the UK had signed and ratified. Many thousands are still applicable and range in importance from the UN Charter, promoted by Eleanor Roosevelt as a Magna Carta for the 20th century, to local treaties over fishing rights. Over 700 contain references to the possibility of binding dispute settlement in the event of disagreements over interpretation.  And increasingly, be they the European Convention on Human Rights, the UN convention on the Rights of the Child or the creation of the International Criminal Court, they have dealt not just with inter-state relations but with standards of behaviour between a State and those over whom it exercises power. So important has been this treaty making that the Ministerial Code specifically states that it is the duty of every UK minister and civil servants to respect our international obligations. It is this duty which is now seen in Lord Bingham’s eighth principle, as being a key underpinning of the Rule of Law.

But unless these obligations are incorporated into our domestic law by Parliament, as was done for our treaty of accession to the European Union, they are not in theory or current practice directly enforceable in our domestic courts. Their interpretation is either a matter to be decided by government lawyers advising ministers as to what is required of us (sometimes with difficulty) or they are left to the interpretation of international courts and to the government to then  implement their rulings. Indeed it’s a feature of our constitution that this part of our system of law leaves relatively little role for Parliament. Treaties are concluded by governments exercising powers under the Royal Prerogative. At most the Treaties are laid before Parliament so that debate can take place if requested, unless there is a need to change our own domestic law as a result of it.  The vast majority are never debated at all.  This is unlike some states which require formal ratification by an affirmative vote of their legislature or indeed incorporate obligations straight into their national law to be applied directly by their courts.

So we should perhaps not be surprised that many in the House of Commons have been irritated by the decision of the European Court of Human Rights over prisoner voting. The judgment in Hirst v the UK and Greens and MT requires the UK government to change our domestic law to give some (arguably very few) convicted prisoners the vote and the UK government is under an international obligation to comply with the judgment. But Parliament clearly considered by a substantial majority in 2013 that it disagreed with the Court’s reasoning and we are now ten years from the judgment which remains unimplemented.  There is an impasse that the Government is unable or unwilling to try and resolve. Instead we are locked in a gently simmering confrontation where the government indicates a willingness to defy the Court or even leave the Convention, which while it has the power to do this, carries with it reputational and domestic and foreign policy consequences which could be far reaching. It has become a symbol of an unresolved conflict of authority.

 

JUDICIAL SOVEREIGNTY?

 

Lurking behind this debate I also see the half spoken concern that judicial activism by our domestic judiciary is undermining or might in future be used to undermine parliamentary sovereignty.

Firstly, quite apart from prisoner voting, it cannot be ignored that the application of the Human rights Act and the nature of judgments which must be made in some human rights cases can be intensely political and may stray into what Lord justice Laws characterised as “macro-policy”, despite the careful way the Human Rights Act was drafted to protect parliamentary sovereignty. In the FA Mann Lecture given in 2011 by Lord Sumption, now a judge of the Supreme Court said: “The Human Rights Act has significantly shifted the boundaries between political and legal decision making’. This is because when judges make decisions involving qualified Convention rights (for example right to a family life v deportation of an alien person after a sentence of imprisonment), the determinations almost always involve striking a difficult balance between competing public interests, which is an inherently political exercise.

Secondly, there are undoubtedly straws in the wind of a much greater judicial willingness to contemplate circumstances where the will of Parliament might be ignored or overruled.

In Jackson v the Attorney General in 200, the case on hunting with dogs, Lord Steyn said of this issue “…the supremacy of parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

This is of course something of a doomsday scenario which at present remains hypothetical. It has not been tested because so far no court has ever suggested that an act of Parliament comes close to such a total violation of principle.

Nevertheless in the recent case of Evans v The Attorney General, the Supreme Court has certainly put a shot across Parliament’s bows. It was my duty, as the matter related to a previous Labour administration, to have to decide as the relevant minister whether or not exercise the executive right of veto provided for in clear terms in the Freedom of Information Act to overrule a decision of the Upper Tier Tribunal that the Prince of Wales’ correspondence should  be disclosed. I decided to exercise the veto as my own conclusions on review of the issues and the balance of the public interest differed markedly from that of the Tribunal.

As you may be aware the Supreme Court struck my decision down, not on the basis that my conclusion was unreasonable, but because it considered that Parliament cannot have intended to give a minister such a power to override a court and that in the absence of the statute spelling out the power in terms that were in its opinion sufficiently crystal clear, it would interpret the statute to confine the ministerial discretion within boundaries so narrow that it effectively makes that part of the Act unworkable for the future. The judgment exposed a very sharp difference of view within the court. Two of the judges Lord Sumption and Lord Wilson in dissenting judgments stated that the Court was rewriting and not interpreting the statute and that the statutes terms were entirely clear and provided me with the discretionary power which I had exercised. It was apparent that the majority of the Court were deeply concerned at what they saw as an improper power given by Parliament to ministers to overrule a court judgment contrary to the theoretical principles of the Rule of Law. It is difficult not to conclude that the majority of the Supreme Court then engaged in some highly creative statutory interpretation to find a way of negating it, whilst trying to avoid a stark constitutional collision.

Next in these necessarily briefly outlined examples, we have the views of Lord Kerr another judge of the Supreme Court in the recent case   of R(JS) v Work and Pensions Secretary [2015] 1 WLR. This case concerned the lawfulness of the benefit cap.  One of the arguments advanced was that the government had failed to take into account the best interests of children as required by article 3.1 of the United Nations Convention on the Rights of the Child. This of course is not incorporated into our law. It is an international treaty obligation. With no international tribunal to interpret it, its content is essentially aspirational, although there is well settled law that where a legislative provision is ambiguous there is a presumption that Parliament intended to legislate in a manner which does not involve the breach of an international treaty.

Lord Kerr, in a dissenting judgment went very much further than this. He posed the question “Why should a convention which expresses the UK’s commitment to the protection of a particular human right for its citizens not be given effect as an enforceable right in domestic law?”

And he went on: “Standards expressed in international treaties or conventions dealing with human rights to which the United Kingdom has subscribed must be presumed to be the product of extensive and enlightened consideration. There is no logical reason to deny to United Kingdom citizens domestic law’s vindication of the rights that those conventions proclaim. If the Government commits itself to a standard of human rights protection, it seems to me entirely logical that it should be held to account in the courts as to its actual compliance with that standard”.

Finally in this list, I also need to mention the growing development of the jurisprudence of the European Court of Justice in Luxembourg applying EU law. This should be confined to those areas within which the EU has competence and of course the UK obtained an opt out from the Lisbon Treaty (Protocol 30) which was supposed to limit the Charter so “it does not extend the ability of the Court of Justice of the EU or any court of the UK to find that the laws, regulations or administrative provisions practices or actions of the UK are inconsistent with the fundamental rights, freedoms and principles which it reaffirms”.

But recent cases certainly support the view that this is an area in which the application of the Charter of Fundamental Rights and Freedoms is expanding those areas of competence in a marked way, notwithstanding the protocol.  In R (David Davis and Tom Watson) v SSHD [2015] my two colleagues asked for the primary legislation of the DRIPA Act 2014 concerning data retention to be disapplied on the basis of incompatibility with articles 7 and 8 of the Charter concerning the right to a private and family life and the protection of personal data. The Divisional Court at first instance, applying EU jurisprudence, has found in their favour, a startling extension of EU law into an area of national security, that the UK would argue is outside competence. The case is being appealed by the Government. Whatever the outcome however there is every reason to expect more cases of this kind. As EU law has direct effect, it has a particular capacity to undermine the authority of Parliament as shown in it statutes. The Charter of Fundamental Rights is increasingly being used as a mechanism for ensuring compatibility of states with ECHR norms as reflecting “a general principle of EU law”.

 

THE EFFECT OF DEVOLUTION

 

It is arguable that on their own these cumulative trends which I have identified, could be left to be played out within our existing unwritten constitution. They may be irritating to Government and give work to lawyers but on their own they are usually rather esoteric and they do not immediately threaten our identity as a sovereign parliamentary state. But the further change which makes maintaining this identity much more difficult is the realities of the current devolution settlements.

Although Enoch Powell once famously argued that power devolved is power retained, as the Westminster Parliament can legally take back what it has given away, the political reality is that devolution is transforming our constitution fundamentally. Sixteen years after the first devolution settlements to Scotland and Wales took place, the view of Tony Blair that the Scottish Parliament was no more than a large local authority flies in the face of reality. The recent referendum on Scottish independence may have shown a clear majority at that time against it. But is also showed that in terms of practise, devolution has given the Scots the right to overturn the Act Of Union of 1707 at such time as they might choose to do so. The fact that the subsequent divorce and break up of the United Kingdom might not be in the interests of any party or that legally the Westminster Parliament would have to enact the necessary legislation to dissolve the Union is irrelevant to the issue, which centres on the practical reality of democratic legitimacy and consent.

At present the matter which is most noticeable as we move towards further devolution to Scotland in response to the famous Vow given in the week before the referendum, is the complete lack of a framework to underpin change. The UK government maintains that it is fulfilling the terms of the Smith Commission on further devolution, while the Scottish Government disagrees. The UK Government is pursuing another major constitutional change in seeking to respond to the growth of English identity by moving to restrict the ability of Scottish and in some cases Welsh and Northern Irish MPs to vote on England only or England and Wales issues.

Rather remarkably to any outsider looking in, this is to be done by changing the standing orders of the House of Commons, so as to avoid any subsequent scrutiny by the courts in violation of Article 9 of the Bill Of Rights of 1689. It also means that once done it has no permanence as the standing orders could be reversed or further changed at will by simple resolution of the Commons. The convention of equality and commonality between MPs is to go with no new convention to quickly take its place. Not surprisingly all these changes engender distrust between the relevant parties which makes reasoned debate on these important issues hard to achieve. Our unwritten constitution resembles increasingly a car swerving uncontrollably from one side of the road to the other, with the strong risk it will go off the edge altogether.

Although the politics of devolution here in Wales are different, many of the same issues arise if in different forms. The decision to give the Welsh Assembly primary legislative powers was not properly thought through in relation to a devolution model of conferred rather than retained powers. We have had a number of cases in the Supreme Court to try and interpret what it means. In the one concerning the Agricultural Wages Board, in which I was involved, it is noteworthy that the reasonable decision of the Supreme Court that it concerned Agriculture, which is devolved rather than Employment Law which is retained, was contrary to the stated intentions and understanding of both Whitehall and Cardiff at the time the Devolution Act 2006 was drafted. We are now talking of an entirely new devolution settlement for Wales, on something closer to the Scottish model. But so far there has been little public debate as to the implications of this for Wales which shares a single jurisdiction with England and where close proximity of populations creates complex interdependencies in the delivery of services.  The Welsh Assembly Government and indeed the Northern Ireland government can also reasonably ask how further devolution to Scotland can take place without its involvement.

Meanwhile it is difficult not to conclude that the wider public are manifesting an increasing dissatisfaction with the way our political processes are being conducted.  We can see this in the progressive decline of the two party system and the rise in support for radically different alternatives. from UKIP, to the SNP and to Mr Corbyn, none of which exactly indicates a growing UK consensus!This of course has a much wider variety of causes than just constitutional matters. But I do see it as a symptom of the same malaise. Our unwritten constitution is failing us because it is being put under strains which it was  never before required to meet. Parliamentary sovereignty as the overarching principle is being hollowed out, but mainstream politicians are reluctant to accept the need for change. So we try to continue as before and are unable to respond to the concerns of our electorates. The risk is that if we continue as we are, our country will simply fall apart.

 

A WRITTEN CONSTITUTION?

 

This is why, traditional Conservative though I am, I believe that the time has come to consider a written constitution. It is not a panacea but it would provide an opportunity for providing greater clarity, certainty and understanding as to the way power is distributed.

Firstly it would enable the constitutional changes we are carrying out to be done as a single process rather than the disjointed one we have at present. This could help build trust as to what is intended, particularly if we have a proper process of public consultation and debate. This is far more likely to create a durable settlement than what we are doing at the moment. Clarity as to the respective roles between the UK government and the devolved administrations, with a clear understanding as to how differences are resolved are key to this as are creating mechanisms to manage further change if wanted.

We can consider in that process whether or not we wish to entrench any written constitution. Entrenchment is not without its problems, as one can see from the USA. But without it a constitution that seeks to balance the rights of the different parts of the United Kingdom is going to be fragile as it can be changed too easily. If the end result of a constitutional debate is one that is put to all parts of the United Kingdom in a referendum, then the argument in favour of some entrenchment becomes very strong.

Secondly, a written constitution offers an opportunity to set clearer lines between the role of judicial interpretation and what lies within the responsibility of the UK Parliament. At the moment as I have tried to set out, the fluidity of that boundary is the reflection of the disintegration of our traditional constitutional order. Some of my colleagues at Westminster would like to put the genie back into the bottle and reassert Parliamentary supremacy. But the reality is that the complexity of current power structures from the EU to the Human Rights Act and Devolution makes this impossible in practice. It would be better to accept it and define new boundaries in a written constitution that leads to less friction and a greater acceptance that the judiciary are going to have  a necessary involvement in the process.

It is also worth bearing in mind that the existence of a written constitution is likely to offer better protection from supra national courts be it the European Court of Justice or the European Court of Human Rights than we have at the moment. These courts have consistently shown high levels of deference to well formulated and democratically approved constitutions.

Finally the creation of a Constitution offers an opportunity for the political reengagement that we badly need. Far from people being uninterested today in the political process I think they are yearning for involvement, as was shown during the Scottish referendum. But as long as we avoid key questions about how the future wellbeing of our country can be best secured, we should not be surprised at lack of interest. I believe that the debate on a constitution could be transformative in this respect.

 

CONCLUSION

 

At the start of this talk I emphasised that in raising the questions I have tonight, I do not have set ideas as to the answers, but only some suggestions. Our History however shows us that our traditions of parliamentary democracy, the rule of law and our shared allegiance to a constitutional monarchy, have been astonishingly successful in bringing and keeping us together through periods of profound change. I am sure it can continue to do so in future. We should not therefore be frightened of considering constitutional change if we keep in mind this framework that has served us so well.