DOES THE UK’S UNWRITTEN CONSTITUTION SAFEGUARD

OUR DEMOCRACY?

Sir Jeffrey Jowell KCMG KC

As delivered as the Annual Rothschild/Foster Human Rights Lecture

2 November 2022

I was going to call this lecture: Is Our Constitution Worth the Paper it is
not Written On? But that title seems somewhat dismissive of the fact that
whatever our constitution may be, it has proved relatively successful
over the years in maintaining many of the requirements of a democracy.

But over the past few years, as we all know, our system of governance
has been undergoing a rare stress test which has sorely tried its
democratic underpinnings.

By unwritten constitution I refer to the fact that in the UK there is no

supreme law, written down and available to all, that sets out the
framework principles and rules for the governance of our nation. This
lack of codification makes us an outlier, together only with New Zealand
and Israel. It may not suit those of us who would prefer to have access to
the rules of the game in a convenient way, but it has suited our
governments as it gives them freedom to make things up as they go
along. Divine qualities have been attributed to that flexibility – such as
Mr Podsnap in Dickens’ Our Mutual Friend who told a foreign visitor
“We Englishmen are very proud of our Constitution… It was bestowed
upon us by Providence”.

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And our chair tonight, Linda Colley, in her recent book about the history
of constitutions1 quotes a Conservative journalist in 1832 asserting that
the British Constitution is thankfully not made of paper because , it is
“the air we breathe, the restless blood that circulates in our veins, the
food we eat, the soil that nourishes us, the waves that beat upon our
shores, the beauty of our women… etc… etc… etc [and much more!]

Many in this country still fervently believe that it needs no formal

restraint by a confining code whereas others assume that since our
constitution is not written down, in one document, we just don’t have
one. But surely there must exist some source that confers power to make,
interpret and enforce laws- as in countries which do have a single
written constitution?

During Liz Truss’ short reign as PM an exasperated conservative MP

cried out to a Newsnight interviewer, that “we must stop all this
nonsense and start governing again under our constitution”.

However, where is this elusive and obscure thing to be found? What

does it say?

Most constitutional experts contend that our constitutional edifice rests

on just one foundational rule, which is: “what the King-in-Parliament
enacts, is law.” In ordinary language this simply means: “whatever
parliament says, goes” because the monarch, although formally
empowered to refuse Royal assent to laws, has not, by convention, done
so since 1708.

1
The Gun, the Ship and the Pen (2021)

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I know that the non-lawyers here will be sceptical that our complex
system of governance can be fuelled by just one rule, which itself is not
set out in any authoritative document.

The first assignment of students in constitutional law has traditionally

been to seek for evidence of our constitution. When they return empty-
handed they are invariably directed to the most authoritative book on
the constitution ever written. It dates from 1885 and its author was
Professor Albert Venn Dicey, of All Souls Oxford and its title The Law of
the Constitution. Dicey declared that our prime constitutional principle
(rather than a rule) was what he called “the sovereignty of parliament”.
Dicey took this notion to some extreme. He asserted that parliament
could make or unmake any law whatsoever, allowing only one
exception: that parliament could not make a man into a woman and a
woman into a man – (a power that parliament is perhaps no longer
willing to forgo).

Dicey’s notion of parliamentary sovereignty could be interpreted as

having authoritarian connotations. Could parliament really decree
‘anything’? Even, to use the stock invariably debated by the students, to
decree that all blue-eyed babies be killed? Could parliament really enact
a law permitting it to rule indefinitely without any future election?
Could parliament dispense with courts of law, or even prohibit any
challenge to official decisions by abolishing judicial review? Or create a
one-party state? Or disenfranchise any one group or gender? Is that
really what our constitution permits?

However, in his defence, Dicey’s enthusiasm for parliamentary

sovereignty was not intended to promote what he called despotism, of

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which he disapproved, nor to promote what Lord Hailsham much later
called an ‘elective dictatorship’. It was instead to proclaim parliament’s
sovereignty as an affirmation of democracy.

By Dicey’s time, owing to the Reform Acts of 1832, 1867 and 1884, the
extended franchise legitimised the ultimate vesting of sovereign power
in those chosen by the electorate to represent them in parliament. Never
mind the fact that at that time no women could vote (and that Dicey
argued passionately, that women’s enfranchisement would be “a
calamity to the nation”).

Representative government is of course a central feature of any

democracy, allowing those who are freely and fairly elected to make
policy decisions in what they see as the public interest.

And another important function of the sovereign parliament is to hold

the executive (the Prime Minister and cabinet) to account.

But Dicey also foresaw, and here rests his foresight, that majority rule
alone is a thin form of democracy. As we now know, particularly from
the history of Germany and the Soviet Union in the twentieth century,
freely elected governments could become despotic. Dicey was not in
favour of an entrenched bill of rights, but he identified a second
constitutional principle, which he called the rule of law. This was his
original expression. He believed the rule of law should temper and
constrain the grant or exercise of overweening power. It could not
override the power of parliament to make laws, but it did require at least
as a moral imperative that laws should not confer arbitrary power, and
that law should be obeyed, that law should be applied equally, that it
should be accessible and certain, and that official decisions should be

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amenable to challenge in the ordinary courts by an independent
judiciary.

One hundred and thirty-seven years after Dicey’s book was published,
his notion of our constitutional fundamentals remain largely intact, that
is: parliamentary sovereignty, moderated by the rule of law and
sustained by conventions.

But these are high principles and so to have a practical effect, over time
both parliament and the courts have added layers of decision-making
institutions and standards. These have an enabling and disabling effect.
They enable or empower government to carry our various decisions and
they also disable or constrain that power to prevent its abuse, thus
buttressing and deepening the democratic quality of our constitution.

Just some examples of these buttressing features include electoral laws;

judicial review of official decisions; powers conferred on the devolved
nations and regions; access to information, and the Human Rights Act of
1998, which incorporates into our law most of the provisions of the
European Convention of Human Rights. And we should add to this
some of the international treaties which we are obligated to enforce.

So we do have more of a constitution than meets the eye, and which

consists of the sum of those different parts. Scattered it may be, but in
the round it shares many features found in codified constitutions, and
indeed some statutes have been interpreted by the courts as so
fundamental that they assign actually assign them constitutional status,
referred to as “constitutional statutes” to the extent that parliament has
to be absolutely clear that it intends to override them. These include the
parliament acts, the human rights act, devolution statutes, the Act of

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Union with Scotland and some few others. However, unlike entrenched
written constitutions, any or all of these parts is vulnerable to being
swept away by a sovereign parliament like a leaf in a storm.

Some here tonight will know all this well; others may be surprised that
we have a constitution at all. Others will have their own concepts of our
constitution. But surely all of you will agree with the late and great
Queen, who once commented that the UK constitution “has always been
puzzling, and always will be”.

So now the big question: Is it working?

While the advantage of an unwritten constitution may be its flexibility,

its corresponding weakness is its inherent uncertainty which militates
against the stability required by the rule of law and also militates against
what might be called a constitutional approach; constitutional thinking.

Just over the past few weeks we have witnessed the confusion about
procedures for the election of our prime ministers. After Boris Johnson
abided by the convention that if a Prime Minister loses the confidence of
the House of Commons he should resign, Liz Truss was elected to the
office of Prime Minister by a tiny proportion of the electorate - some
conservative party members, over riding the majority of the
conservative MPs, whose preference was for Rishi Sunak. That Tory
MPs were forced to accept a choice that was not theirs could be seen to
contradict the notion of representative government. The opposition and
others called for a general election, on the ground that the country as a
whole should have its say in the choice of a new leader. A similar claim
was made earlier by Jacob Rees-Mogg, who confidently asserted, (when

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does he not?), that if Boris Johnson were forced by parliament to resign,
a new election would have to be called.

The short answer to both these calls for a general election is that ours is
not a presidential system, where the president has his or her own
mandate, independent of parliament and can be held personally to
account. By convention, the Prime Minister is the leader of the largest
party and is responsible to parliament but not directly to the electorate.
An election is therefore not constitutionally required, but this may seem
somewhat counter-intuitive since in practice these days we tend to vote
for a prime minister (as much, if not more, than a particular MP). You
might also expect the choice of a new PM to be supported by the
majority of their own party in parliament. But this is just one of a
number of misconceptions and confusions resulting from our uncodified
system.

Another is the status of a referendum, which caused such confusion in

2016. Leaving the EU was a decision of the most profound
constitutional import. After all, in 1972 Parliament had conferred
authority on EU institutions to make laws for the UK. Brexit would
abruptly cancel that major source of law, as well as the hundreds of EU
laws effective in the UK. But the referendum was authorised without
any consideration of its constitutional implications and impact. In
virtually any country with a written constitution (exceptions are very
rare) a rupture of this magnitude would have required a special majority
- perhaps two thirds of the electorate.

In large part due to neglect of its constitutional significance, Brexit has

caused a number of after-shocks, beginning with the two famous cases

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where the executive sought to usurp the rightful power of parliament
fearing that parliament might renege on the referendum’s result.

The first of those concerned whether the then Prime Minister, Theresa
May, or parliament, had the power to trigger Brexit. Article 50 of the
Treaty on European Union provides that any member state which
decides to withdraw from the Union must notify the European Council
“in accordance with its own constitutional requirements.”

But here again, our ‘constitutional arrangements’ were unclear and

deeply contested. Teresa May announced her intention to withdraw
from the EU under what are known as prerogative powers exercised by
the executive, in this case in the area of international affairs . In other
words, she claimed that a decision to cancel an international treaty was
for her. Gina Miller, a brave citizen, challenged her power to do so
without the authority of an act of parliament.

A majority of the Supreme Court sided with Mrs. Miller on the ground,
briefly, of Brexit’s enormous constitutional significance for reasons just
mentioned. The Court also stressed that as Brexit would result in a loss
of a number of domestic rights, these could only be changed by
parliament (under the principle of parliamentary sovereignty)- and not
by the executive.

The second case (also initiated by Gina Miller and Joanne Cherry MP in
its Scottish version) involved Mr Johnson’s invoking the Queen’s
prerogative power to prorogue parliament – to suspend it for a period –
in this case for 34 days. This would have allowed the executive to
negotiate without parliamentary oversight. A full and unanimous
Supreme Court held that the suspension of parliament would frustrate ,

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without reasonable justification, the ability of parliament to carry out its
constitutional function as a legislature and as the body responsible for
the supervision of the executive.

So in both those cases we see the principle or rule of parliamentary

sovereignty upheld, but upheld against the executive branch of
government.

Undeterred, the executive continue to assert their primacy.

As was shown just a week ago when a parliamentary bill called the
Retained EU Law (Revocation and Reform) Bill received its second
reading. The Bill’s intention is to revoke or replace more than 2,400 EU-
derived regulations by the end of 2023. These are the “retained laws”
that, after Brexit, were kept on the statute book, to ensure continuity – at
least for a while. Jacob Rees-Mogg pronounced that the bill would
finally rid us of the “sovereignty of EU law”, but the bill seeks to give
the power to revoke, revise or retain any of the EU regulations to the
executive, rather than to parliament. Some delegated legislation to the
executive may sometimes be necessary in a fast moving, time-
constrained parliament.

But this bill gives more than disproportionate legislative power to the
executive. There is no provision for public consultation, and at most
only a two hour debate in parliament for M.P.s to say yes or no. Hardly
sufficient scrutiny for a myriad of laws such as the level of radioactive
substances in water, the designation of wildlife habitats, regulations
about protecting our rivers, controls of pesticides in foods, protection of
part-time workers, minimum requirements for maternity pay, ban on
trafficking of illegal weapons, etc. etc. etc.

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This is rank usurpation of parliament’s power to make law on these
matters that are important to so many. It is also a violation of the rule of
law insofar as the public and businesses have no idea what government
intends to do.

As Tom Bingham contends his book The rule of law, the rule of law
must be complied with not only in the domestic, but also in the
international order. But this seems to have been overlooked in the
government’s recent response to the Northern Ireland Protocol to the EU
Treaty,

Let me preface this with a reference to the Ministerial Code, first

published by John Major in 1992 and much in the news this week.
Although this codifies some constitutional principles it has no legal
status and is enforced at the discretion of the Prime Minister. It initially
imposed an overarching duty on ministers to comply with the law
“including international law and treaty obligations”.

However, in 2015 it was amended by excising the reference to

international law and simply providing that ministers must uphold the
“law”. It was disingenuously argued that “the law” included
international law, so why waste words? But the omission is surely a
telling signal, and consistent with recent actions by the government
which reveals little regard for the rule of law in the international order.

The handling of what is called the Northern Ireland Protocol is one

example of disrespect for international law. Despite assertions to the
contrary by Boris Johnson during the Brexit negotiation, the eventual
Brexit treaty did create a customs border between the UK and Northern
Ireland. This has since been a bitter bone of contention. When

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subsequent negotiations with the EU to relax the border control stalled,
the Government decided to introduce a bill in Parliament unilaterally to
breach their previously signed agreement with the EU.

Amazingly, the UK minister responsible for Northern Island conceded

in parliament that the Bill would indeed breach international law, but
“only in a very specific and limited way”.

It was only after one of the government’s prominent law officers

resigned in protest – as did the head of its legal department – that the
government withdrew those provisions.

However, this year another bill has been submitted to break the
agreement. The then Solicitor General, one Suella Braverman, prepared
the ground by claiming that it was (“painfully”) necessary to legislate to
cancel the Northern Ireland Protocol because the EU had created a trade
barrier in the Irish sea, and that the Protocol was “unreasonable and
disproportionate”. I remind you that the UK voluntarily signed up to the
deal.

Incidentally, these were clearly political justifications from someone

whose role as Attorney General was to provide independent advice to
the government.

The bill in its latest iteration is justified by a spurious “doctrine of

necessity”, which I don’t need to go into but, in the words of another
recent Solicitor General who also resigned his office, Alex Chalk KC,
attempts to “defend. . . the indefensible” 2. Surely the House of Lords’
Constitution Committee is right to have said, on more than one occasion

2
I apologise for attributing, in my lecture and in its original text, that remark to the recent Attorney General
Michael Ellis, who did not in fact resign but was replaced by Ms Braverman.

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that it is ‘not appropriate for Parliament acting unilaterally to reinterpret
an international treaty to which the UK has been a party.’

Let me now turn to government attitudes towards our judiciary and the
Human Rights Act. You may remember the intemperate attacks on our
judges after the first Brexit case in the Divisional Court, where they were
pilloried as “enemies of the people” by the Daily Mail and other
newspapers but with the fingerprints of the government all over it.
Beneath that headline the papers accused the judges of lack of
impartiality on the ground of their “European connections”. And even
remarked that one of the judges at first instance was “openly gay”. Gina
Miller and her fellow claimant were also derided and belittled.

The Lord Chancellor of that time was Liz Truss who had a statutory
duty to support judicial independence and the rule of law. However,
after taking some time to react, she expressed only general support for
both judicial independence and the freedom of the press. In a later letter
to the Times she expressed confidence in the judges in the case, but
refused to go further to avoid interfering with the freedom of the press
or to “censor headlines” which she did not believe had “imperiled”
judicial independence.
However, according to the Chief Justice of the time, Lord Thomas, the
reaction was such that he had to order additional security for the
judiciary.
In respect of the second Brexit case, the prorogation of parliament case,
Boris Johnson did comply with the judgement, and parliament
immediately reconvened. But he nevertheless commented that the court
had “got it wrong”.

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His then attorney General Geoffrey Cox threatened parliamentary
scrutiny of judicial appointments and his next Attorney General, yes,
Suella Braverman, wrote, even before she was formally appointed, that
“judges have made a chronic and steady encroachment on the political
arena”, urging parliament to “take back control”.

Over the past few years these attacks on the judiciary, probably the most
competent and impartial and independent in the world, have increased.
As have criticisms of various provisions of the Human Rights Act, and
the judgments of the European Court of Human Rights in Strasbourg,
which adjudicates infringements of Convention rights.

Two independent commissions were set up. One under Lord Faulks, to
consider whether judicial review in general goes too far; and another,
under Sir Peter Gross, a retired Court of Appeal judge, to consider the
Human Rights Act. Both have been impeccably thorough and both have
suggested only minor amendments, which, in relation to judicial review,
have already been passed into law.

But the dogs have not been called off.

When Dominic Raab became justice secretary in Johnson’s final cabinet

his new bill included proposals which the Independent Rights
Commission did not think necessary – such as, to make it more difficult
for claimants of human rights such as Gina Miller to bring cases, and
some other weakening of rights. Although Raab’s bill did not advocate
withdrawal from the Convention, it did propose that our courts could
diverge to a greater extent from the judgments of the European Court of
Human Rights. This again could amount to a breach of our international
treaty obligation.

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We should note here the Judicial Power Project run by a think tank
called Policy Exchange which is close to the government. The purpose
of this project is to strengthen parliamentary sovereignty and reduce
what they call ‘judicial overreach’. It is led by the Oxford Professor
Ekins who last month issued a paper which he said that there is a
powerful case for withdrawal from the European Convention, on the
ground that our domestic common and statute law perfectly well
safeguarded human rights before the Human Rights Act came into force.

This I am afraid is simply not so. Looking back to those years we see
umpteen cases where people’s rights were not recognised in our law but
were protected only when they petitioned the Strasbourg court. Our
common law did recognise and protect some human rights, when public
officials had acted in breach of them. However under parliamentary
sovereignty our courts lacked the power to review legislation which
might breach human rights, which could only be protected through
petition to the Strasbourg court. Let us remember too that until we
incorporated the European Convention into our law in 1998, the UK was
held one of the worst offenders in Europe by the Strasbourg Court. It
reversed decisions here – such as those which had denied rights of gay
men and women to join the army, or denied Ugandan Asians entry to
this country (despite their British citizenship), or which censored the
Sunday Times to reveal the detail of the thalidomide scandal

(the last of those cases argued in Strasbourg by the late Anthony Lester,
who was a founder of this lecture series, with Miriam Rothschild
(Charlotte Lane’s mother), and Isaiah Berlin. And let’s note that the
European Convention on Human Rights was drafted, with the

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encouragement of Winston Churchill, by mostly British drafters, who
included John Foster).

By the way, Professor Ekins also proposes in that paper that the Lord
Chancellor should refuse to appoint judges who cast doubt on
parliament’s authority to “make or unmake any law”, harking back to
Dicey’s extravagant pronouncement in 1885. You might think that that
degree of interference in judicial decision-making by the executive is
unthinkable in a democracy properly so-called.

We don’t yet know whether these attacks on the ECHR and on

‘unelected judges’ will return under the new government but we should
note that Suella Braverman, now Home Secretary, when campaigning
recently to become Prime Minister, said that she also favoured
withdrawing from the European Convention on Human Rights.

Another murky area in our constitutional arrangements concerns ethical

standards. A recent document by the excellent Constitution Unit at UCL
has developed a list of constitutional values, some of which I have
already alluded to and which rightly includes “integrity and standards”.
In the past few years various mechanisms have been put in place to
achieve this, and I have already referred to the Ministerial Code of
Practice.

The Code’s potentially most enforceable provision is the one that states
that “ministers who knowingly mislead parliament” will be expected to
offer their resignation to the Prime Minister. This is an important
provision because parliament’s authority to hold ministers to account is
toothless if misleading information leads to no sanction. Yet
enforcement has been slack, as we saw with the allegations of bullying

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against the then Home Secretary Priti Patel, which led to the resignation
of the relevant civil servant. And you will have your own views on
Suella Braverman, who confessed to breaking the ministerial code on a
recent Friday and was reinstated by the new Prime Minister on the
following Tuesday.

While on the subject of integrity, mention has to be made of the House

of Lords. Credit must be given to the Lords for the high quality and
often independence of their scrutiny of legislation, which may or may
not justify its swollen numbers (over 800) and its retention of 85 peers
who are there by virtue of birth, the hereditary peers, all of them men.

There is also of course – and I’m sure any peers here today will agree – a
question of the legitimacy of our being governed, albeit with limited
powers, by those whom we don’t elect and we cannot remove.

Attempts to reform the Lords have failed largely because the Commons
fear competition if the upper house is made more acceptable. But surely
the most offensive aspect of the Lords is the practice of appointing peers
on the basis of their contribution to the coffers of one political party or
another. According to one account (and I have not been able to check
this) twenty two of the Tory party’s largest donors who together have
donated £54 million have been appointed to the Lords in the last 10
years. What does this say about the integrity of our system of
governance?

I’m afraid there is more: Our impartial civil service is a much valued
feature of our constitutional landscape. But here too we note the recent
attempts to politicise the civil service by securing the dismissal of
various senior officials who were viewed as displaying any significant

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independence, as shown by Kwasi Kwarteng’s dismissal of the
permanent secretary in the Treasury.

And there have been other attacks on the independence of institutions

which are key to our constitutional structures in one form or another.
These include the electoral commission, a move described by a former
chief justice as “repugnant”. For one brief moment it seemed that the
Bank of England was also seen as dispensable, not to mention the Office
of Budget Responsibility.

There are many, many other uncertainties in our system that cause
confusion such as the status of our overseas territories and Crown
Dependencies. Post-colonial structures and attitudes need addressing to
preclude the injustice inflicted on the inhabitants of the Chagos Islands,
who were exiled from their own islands and sent to Mauritius, as
outlined in Philippe Sands’ recent book on the subject3.

This litany of constitutional slippage, of democratic die-back, somewhat

like the present plague on the country’s ancient ash trees, is I believe
deeply concerning. It reverses a trend which since the second world war
has deepened our democracy in many ways, including increased
opportunity to challenge decisions made about our lives, through
judicial review, but also through quasi legal methods such as the
ombudsman, tribunals and inquiries. And then by allowing better access
to information, incorporating the provisions of the ECHR, promoting
more local decision-making, and introducing regulation of standards in
public life, making the appointments of judges independent, introducing
regulation on standards of integrity in public life, deepening the
devolutions settlements, and so on.
3
The Last Colony (2022).

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This is all in stark contrast to recent lapses from democratic standards
which are not due to fits of absentmindedness – but reflect a persistent
and flagrant disregard of democratic fundamentals.

But we should not view this from the domestic perspective alone. As we
have seen in respect of our economic decisions, we are not isolated from
the world at large. And here we should not ignore the mighty existential
battle raging between democracy and the forces of authoritarianism
and tyranny. So many countries which for a while embraced democracy
from the 1990s are being undermined by nationalism, religious
extremism and corruption .

Former success stories for democracy, such as Turkey, are now

imprisoning critics and marginalising minorities. Places like Hungary
and Poland are forsaking the rule of law and human rights under the
banner of being “illiberal democracies”. The Arab Spring turned into a
desolate winter, especially in Syria. Its one democratic aspiration,
Tunisia, is again asserting its former despotic tendencies. Russia has
reverted to its tyrannical past.

It may be too early to judge the performance of recent governments of

Italy and Sweden or whether the pattern has been decisively reversed in
Brazil. China, under the iron rule of Chairman Xi Jinping, has forsaken
any pretence of democracy and, because of its economic success, is
providing a model for the developing world of autocratic capitalism
through trade and investment.

This is not the time for the oldest democracy to be seen to be flouting the
rule of law both domestically and internationally. And particularly not
to trash the European Human Rights Convention which has been so

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successful in binding together 46 disparate countries into a common
human rights law. Some of those countries may be diminishing their
commitment to the Convention’s rights, but compare Europe now to
when the Convention first came into effect after World War II. What
sort of a signal does it give if we renounce the Convention entirely, or
even make the arrogant decision to cherry pick its rights or judgments?
And if we leave the Convention, as our Home Secretary would like, we
will only in be in the company of Russia and Belarus.

Turning now to possible solutions. There is little question that many of

the attributes of a good written constitution would benefit us but I have
to say that there has to be real doubt as to whether what has been called
a “constitutional moment” has arrived; a moment which impels a
country to come together and proclaim a new order sealed with a root-
and-branch written constitution. Linda Colley’s book shows
convincingly how the sound of guns and the cost of ships led to new
constitutional settlements in the countries she describes. Most of those
constitutions begin in effect: “Never Again”, seeking to sweep away an
unsatisfactory past. As did the constitutions in the post-Soviet era, or the
post-apartheid South African constitution.

As far as the UK is concerned, even the constitutional turbulence of the

recent past seems unlikely in itself to have brought us to that
‘constitutional moment’ when various interests drop their weapons and
come together in a national constitutional convention to write a
foundational document. Realistically, there is no present political steam
behind constitutional codification and no leadership to encourage it. If
Scottish or Welsh independence were imminent, that might create the
necessary trigger, perhaps.

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So if that moment has not arrived, what do we do? Sit on our hands
and, like Beckett’s characters Vladimir and Estragon wait for the Godot
who may never arrive? I would rather hope that that constitutional
reform now might in some way avert the adversity that usually precedes
a constitutional moment.

And while an overriding constitutional code may well be the best way to
achieve constitutional ground-rules so as to make our system
understandable, transparent, accessible, coherent and firmly located
within democratic strictures, in the meantime more straightforward
measures might achieve these aims, at least in part. This could be
achieved in the form of a Constitutional Reform Act, or a series of acts,
along the model of the major spate of constitutional reforms of the late
nineties and early 2000s.

These started with the devolution settlements, the human rights act and
freedom of information act. It continued to the Constitutional Reform
Act of 2005, which among other things, altered the role of the Lord
Chancellor and created a system for independent appointment of
judges. Most important, it incorporated in statute for the first time what
it called “the existing constitutional principle of the rule of law”.

If cross party consensus could be achieved, the process of reform could

be guided by a running commission, along the lines of the Joint
Parliamentary Committee on Human Rights, or the House of Lords
Constitution Committee.

By one means or another, it is surely time to wave away the smoke and
remove the mirrors that obscure constitutional reality ( and hide

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offences against democratic standards) and to seek clear answers to
burning questions such as:

How best can we restrain breaches of the rule of law on the national and
international level? Should a change of prime ministers now require
support from their political party? Or the wider electorate? Should the
ministerial code be independently enforceable? Should it contain more
stringent penalties? Should the role of civil society organisations in
challenging official decisions in which they have an interest be
entrenched? Should other institutions receive greater entrenchment,
such as the NHS, BBC, Bank of England? Should the use and
procedures of referendums be clarified? Should the role of the attorney
general be made less political? Is it right, in international law or simple
morality, to export to other countries our obligations to asylum-seekers
that reach our shores? Should we continue to be the most centralised
country in Europe rather than a properly federal state, through more
financial or other autonomy conferred on devolved nations and regions
or cities? What should be the limits of subordinate legislation? Should
representation in the House of Lords be on the basis of regional
representation? Should appointment to the Lords be allowed on the
basis of a financial contribution? Has the time come to codify the
presently unenforceable conventions, by way of a new constitutional
arbitrator? Should we, as many written constitutions do, identify and
celebrate our fundamental constitutional principles and values that
underlie our democratic order? Should these include not only to
representative government and the rule of law, but also integrity,
equality, and solidarity or even ‘levelling up’? What should our
relationships with the Overseas Territories and Crown Dependencies

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look like? And perhaps most fundamental, do we really feel
comfortable about living in a country which allows, even as an unlikely
hypothetical risk, never mind atrocities against blue eyed babies, but
which allows more immediate prospects, such the politicisation of our
judiciary, or the weakening of our fundamental rights, including to
challenge decisions in the courts?

There may be some here who that think it best to treat those issues with
benign neglect, with faith that pragmatic British common sense will
resolve them in the end. But surely the length of this list alone, and the
fact that so many of the issues are unresolved, is a stark indication that
we should confront them head on. This becomes all the more urgent
when we see that trust in our institutions, and in democracy as a whole,
is at an historic low. A recent poll shows that six out of ten people aged
18-44 think a good way to run this country is “a strong leader who does
not have to pay attention to parliament”. This statistic above all others
should jolt us into action.

The structure and fabric of our democratic house are in a state of neglect.
As any householder knows, deferred maintenance invariably leads to
compound and exponential damage down the line. If the time is not
now ripe for a root and branch rebuilding, there is a burning case for
immediate refurbishment. It is at our peril that we neglect the care and
attention that our constitutional democracy deserves; for the sake of our
future – at home, and in the world at large.

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