A grown up country, to be truly civilised, requires a written constitution. That is something that I firmly believe in, and when the opportunity to join in a robing room debate about that very topic arose the other day, I jumped right in.
This is a bit of a quick post, bashed off on my way back home on the train as I caught up with the news from the Spending Review and US Supreme Court on my phone, and looking forward to the legal aid debate in Parliament tomorrow (so apologies if it’s a bit ranty and unstructured).
I have never understood what is so objectionable about saying that Parliament, like all of us, cannot act as and when they want. The elective dictatorship model is not necessarily conducive to good government. I’m currently involved in the campaign to #saveukjustice where you can see the problems involved in our model of governance – an executive that is fused with an (effectively) unicameral legislature means that the opportunities for an individual to change government policy (by rational debate or otherwise) are heavily limited.
Any such talk obviously turns to America at some point and, as we are lawyers, to the Supreme Court in particular. Various objections are put forward, but for every effective emasculation of the Voting Rights Act there’s a DOMA ruling. In any event, does the impact of one (or more) high profile and controversial cases change my view? No. Individual decisions going against your point of view is to be expected, that’s life. It doesn’t change the principle.
I’m going to focus on the law, as that’s my area, but it applies across the board. Only in the UK could we have a situation where a party that ‘wins’ an election (by getting 40% of the votes cast) and is then free to act as they wish for the next 5 years. No checks, no balances anymore. It encourages politicians to behave like children – something happens that they don’t like (or the Daily Mail tells them they shouldn’t like) and they pass a law about it (usually by stuffing it in as an extra clause in an already bloated Criminal Justice Bill).
If anyone has the temerity to suggest that they have got it wrong (the ECHR, on most things, or the House of Lords on, for example, the current Probation ‘reforms’) they start stamping their feet and demand greater democratic scrutiny of Judges and an elected upper house to get their own way.
The Criminal Justice Act 2003 is a good example. I tend to vote Labour (certainly as Vince Cable would say, my heart beats to the left) but this is a good example of my party getting it wrong. In amongst the 476 pages was a major assault on our fundamental rights – double jeopardy, trial by jury and hearsay to name a few.
The House of Lords, not being elected, did not have the power to properly question this. The Queen (as head of the Executive) obviously had no power to veto any of it, and the Courts did not have any power to stand between the wishes of the Prime Minister (who could rely on a whipped vote of his MPs to push it through, despite the fact that Labour only got 40% of the votes cast).
Tony Blair, and David Blunkett who piloted the Criminal Justice Act, never really ‘got’ democracy I suspect. They certainly didn’t understand the idea of separation of powers and the advantage of a system of ‘checks and balances’. The current lot aren’t any better – if you’d thought that a coalition would lead to compromise, you’d be disappointed. Theresa May is a perfect match for David Blunkett, and the Government are happily dismantling the welfare state without anyone being able to stop them.
Whilst an elected upper house (or a Judge who seized his Marbury v Madison moment) may well stop some good laws being passed, it would undoubtedly stop many more bad laws being passed, and the former is a price that I think is well worth paying to get the latter.
I suspect that what it boils down to in this country is that the ‘powers that be’, (not just Blair and Blunkett) see democracy as an unfortunate thing that the people do every five years and then we should just pipe down and let them get on with running things. Our freedoms are whatever the government of the day let us do, and we should be jolly grateful to them.
That is (I believe) a fundamental mistake as to what democracy is. Kennedy J’s dissent in the Prop 8 Case today puts it much better than me :
“The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government”