The test of constitutional changes is to imagine them in the hands of your political enemies

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December 20, 2019 by Paul Goldsmith

Sometimes it’s the parts of the Queen’s speech that attract the least headlines that are most significant. The ‘review’ of the role of the courts and the set up of a constitution and rights commission are examples of this. There is little doubt our constitutional settlement needs to be looked at, as it may not be fit for purpose for today’s political realities. But I would caution Boris Johnson (and by extension Dominic Cummings) to test the constitutional changes they pursue by thinking about what they would be like in the hands of their political enemies. 

First of all, one can understand the motivation for reviewing the role of the Supreme Court. It had the temerity to make a judgement that the prorogation of Parliament was unconstitutional and unlawful. Because that happened to conflict with their plan, to deliver their interpretation of the ‘will of the people’ without any parliamentary scrutiny, that is apparently justification for reducing the powers (I can only assume that is what it’s about) of the Supreme Court.

The setting up and naming of the constitution and rights commission betrays the second issue the Conservative Government is going to try to address. When the UK withdraws from the European Union, the UK Supreme Court would become the guardians of rights in the UK, and may over-reach in their interference with what the Government want to do. For instance, if the Government decide to reduce regulations and rights in order to attract foreign investment after Brexit they may want to stop the Supreme Court trying to protect those rights and regulations.

It isn’t quite clear yet what the constitution and rights commission will have as its remit, but I assume it may also look at the relationship and powers of the executive (Government) against Parliament. After all, didn’t Parliament block the ‘will of the people’ too? All this inconvenient and frustrating scrutiny can surely be ended if some constitutional bills get through this Parliament.

Because it’s important you understand how easy it is to change the UK’s constitution. It is not codified, which means it isn’t written down in one place and it isn’t ‘sovereign’ either, because Parliament is sovereign. The House of Commons, which is the elected part of Parliament, is now dominated by a Conservative Government with 365 seats, a majority of 78. So, they are effectively now an elective dictatorship. The Lords can only block the Commons for a year under the 1949 Parliament Act. So it is pretty safe to say that constitutional changes could well happen.

Which is where I want to issue a warning. I always argue that the way to test any law is to imagine it falling into the hands of your political enemies. So, when people on the left talk about laws making ‘offensive speech’ illegal, I ask them to imagine a far right government deciding that ‘offensive speech’ is any criticism of their policies.

Likewise, if this Government decides to weaken the powers of Parliament and the judiciary, they should imagine the powers they grab for the Executive in the hands of the most far left Government in the future. Given the latest Labour manifesto included some confiscatory policies, Conservatives and their supporters might be glad of the protection of their rights by the judiciary and relieved for the ability of Parliament to scrutinise the actions of the Government. Saying ‘individuals should have the right to ask for judicial review if the executive oversteps its powers’ may not get headlines, but it is an extremely important right.

Understanding our constitution isn’t sexy and is often called quite dry. But don’t underestimate the significance of our constitutional arrangements for our lives.

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