IT HAS become an established principle in most of the world’s constitutions that certain features of the constitution should be protected. This is achieved by requiring that any change to the constitution is to be subject to a referendum of the electorate at large. The majority needed is usually set high enough to ensure that any change has a fairly widespread base of support.
The British constitution is unique in that there are no entrenched provisions. This is due to its slow evolution over many centuries. The origin of political power in the United Kingdom lies in the unfettered power of the early medieval monarchs. The consequence is that unfettered power resides in ‘The King in Parliament’. With the development of a constitutional monarchy and the Parliament Act of 1911, power now resides exclusively in the House of Commons. This power is absolute and subject to no constitutional restraint. We thus have an elected dictatorship.
For centuries, change in the constitution was relatively slow with few abrupt changes. Times of great civil disturbance occasionally made changes which proved to have a significant impact on the constitution, for example the signing of Magna Carta by King John in 1215 or the passing of the Bill of Rights in 1689. These arose from political exigencies.
We now have a new development: the conscious and planned innovation in our constitutional arrangements by civil servants and politicians.
Perhaps the first of these was the British adherence to the Treaty of Rome in 1973. This ‘joining the Common Market’ resulted in the sly subjection of much of parliamentary power to the European Court of Justice (ECJ). This principle had been established in 1964 with the decision of the ECJ in the Costa case. The constitutional implications of this were deliberately obscured. Jean Monnet, an eminence grise behind the EU project, explained that to overcome national sentiments it would be necessary to ‘to zig a little, to zag a little’ – perhaps one of the most elegant descriptions of political deceit in history. The very sloppy way in which we withdrew in 2020 means that the European law and the ECJ still has some place in British law.
In 1997 the government headed by Tony Blair embarked on a programme of so-called ‘reform’. In fact these were not reforms but constitutional changes that have had a profound impact on the UK.Miller cases
The most significant change was the incorporation of the European Convention on Human Rights (ECHR) into English law in 1998. This Act provides that every future Act shall be interpreted so as to conform to the requirements of the ECHR. These so-called ‘rights’ are so broadly expressed that courts can make almost any decision they wish and hence create a great deal of law that would never gain the support of the vast majority of the electorate if they were given a choice.
This was followed by the devolution Acts for Scotland and Wales. These were designed to create Labour fiefdoms in these jurisdictions. The effect, certainly in Scotland, was the opposite in that a vehicle was established for separatist sentiment. A wedge had been placed in the United Kingdom.
The Office of Communications Act 2002 and the Communications Act 2003 created Ofcom with the remit of protecting the public from ‘harmful or offensive material’. Subsequent legislation, such as the Digital Economy Act 2017, has brought almost every public medium under the control of Ofcom. The Online Safety Act 2023 further extends the range and authority of Ofcom, which now has extensive censorship powers over every aspect of public communication.
In 2005 the Constitutional Reform Act, reflecting theoretical notions of the ‘separation of powers’, destroyed the careful balancing of institutional powers evolved over centuries. A Supreme Court was created that, it was held, would have the same powers as the previous judicial committee of the House of Lords. Many voices expressed the view that this body would, simply by virtue of its title, enlarge its powers. This indeed emerged when the court violated the 1689 Bill of Rights and successfully interfered with the powers of parliament in the Miller cases. This has established a precedent which may place the courts above parliament.
A key link in the relationship of the legal system and parliament was the role of the Lord Chancellor, previously the equivalent of Speaker to the House of Lords, a presiding judge in the High Court, and head of the judiciary. These roles were replaced with three separate individuals, the Lord Chancellor being removed as a judge. In 2003 many of the functions of the Lord Chancellor were transferred to a new Department of Constitutional Affairs; this in turn was replaced with the Orwellian-sounding Ministry of Justice.
In 2010 the Constitution and Governance Act established the Civil Service Commission and the Civil Service Code which in effect removes the civil service from ministerial control.
The Equality Act 2006 and the Equality Act 2010 extended the non-discrimination concept to the following ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. This had the twin effects of opening up a lucrative source of litigation for human rights lawyers and severely limiting the rights of individuals to make personal choices.
In 1966 the House of Lords issued a practice statement in which it unilaterally gave itself legislative powers. The development of Judicial Review has also significantly increased the authority and power of the judiciary. Parliament has been ineffective in controlling these accretions.
The extraordinary growth in unelected government-appointed agencies, operating without effective parliamentary, legal or democratic control, has further complicated government. It seems they disburse some £50billion a year, a third of public spending.
Many of these legislative measures interact, producing a larger impact than they would on a standalone basis. Any government with a large majority can steamroller any legislation it wishes through parliament; it has absolute power.
The effect of all this legislation has been to make it almost impossible for a government to effect any policies which reflect the wishes of the electorate. It also enshrines significant power in a virtually independent, self-perpetuating and privileged civil service.
The Reform UK party has suggested that perhaps a great Repeal Act is required; others, similarly, that a roll-back of this legislation is necessary and have called for a ‘Restoration Act’.
It may be argued that we need to entrench some vital parts of our constitution and personal rights behind the bulwarks of a requirement to refer such matters to a referendum. Most constitutional theorists argue that this is impossible given the unfettered power of parliament; which includes the inability to fetter future parliaments. However given our national history and temperament it is possible to conceive how it might be done without violating our existing constitution. However, the next government will have enough to do without worrying about constitutional reform.
First, then, a Comprehensive Repeal Act!
