Why Britain must deliver enduring constitutional reform

August 4, 2009

lester- Lord Lester of Herne Hill QC is a leading constitutional and human rights lawyer. The views expressed are his own -

Almost alone on the democratic world, we British have no written constitution protecting our basic civil and political rights. We have no constitutional charter defining the scope of the powers of the legislative, executive and judicial branches of government or the relationship of these branches with the European Union (EU). Parliament struggles to assert its power while the government uses its ancient monarchical authority — that is the prerogative power vested in the Queen — to exercise its executive powers.

There is now widespread discontent with our system of government, and a massive loss of confidence in politics and politicians.

The early days of the “New Labour” government were times of promising reform. Major changes such as devolution for Scotland, Northern Ireland and Wales, removal of most hereditary peers from the House of Lords, abolishing the role of Lord Chancellor and creation of a Supreme Court were accompanied by measures directly empowering individuals, in particular the Human Rights Act and Freedom of Information Act.

Since then, despite much talk of further reform, the government has only tinkered round the edges. As the House of Commons Justice Committee’s recent report noted “’unfinished business’ has been the enduring motif of many of the strands of constitutional renewal” during the lifetime of this government.

Why has the government failed to complete its ambitious constitutional reform programme? The Blair government was half-hearted and bogged down in controversies over the Iraq war and concerns about security and terrorism. When Gordon Brown took over in 2007, he seemed keen to invigorate the constitutional reform process with the launch of the Governance of Britain agenda.

But, the failure to drive forward this agenda with any speed or sense of purpose or imagination meant that ministers became lukewarm or hostile to any further meaningful reform. They lost any appetite for radical change until the scandals about MPs expenses and dodgy peers became part of a media frenzy. These scandals have resulted in a further public loss of confidence in our political system while reviving the debate about constitutional reform.

Rather than using rushed and inadequate legislation, it is surely time for a proper debate about our constitutional future and for coherent and enduring constitutional reform. We should put in place a modern democratic system of government in which ministers are made accountable in practice to Parliament and a new constitutional framework is enacted with the consent of Parliament and the people.

The best way do this would be in a fully comprehensive written constitution setting out the relationship between the different branches of government, between the devolved administrations and Westminster and our relationship with the EU. It would specify the composition of the Upper House combining democratic legitimacy with expertise. The constitution would place the source of prerogative powers firmly in Parliament and make the exercise of executive powers subject to parliamentary control.

Following the South African constitution, it could also specify the basic values and principles underlying good governance and administration. It would need to combine parliamentary and popular sovereignty and the process of securing widespread consent would call for careful consultation.

A written constitution would also contain a Charter of Fundamental Rights and Freedoms expressed in the language of a constitution rather than a treaty, building on the protection given by the European Convention on Human Rights and the Human Rights Act 1998, but adding additional protection against the misuse of public powers.

Meanwhile, there is no reason why we could not have such a Charter without waiting for a new constitutional settlement.

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