Sunday, 31 October 2010

Does the Government Really Know What It's Doing?

The actions of the previous – and now the current – government are rather concerning. I’m not referring to the colossal, unprecedented borrowing and spending of Labour or the deep cuts planned by the Coalition, but instead to their tinkering with the constitution. I am concerned that either they are playing popular politics at the expense of our system of government, or more worryingly, aren’t aware of the major constitutional impact of their decisions.
Last October Labour created a Supreme Court for the UK. The government in its wisdom decided that the Appellate Committee of the House of Lords, which had effectively carried out its responsibilities for one hundred and thirty years, was no longer sufficient. So, at a cost of over £50 million, at a time when we had over £800 billion of debt (it may not seem significant in comparison, but as Tesco keep telling us, every little helps), the government moved the Law Lords across the street to apparently do exactly the same thing they were before. So why bother?
The Ministry of Justice claimed that introducing a Supreme Court would, ‘provide greater clarity in our constitutional arrangements by further separating the judiciary from the legislature’.[1] Therein lies a fundamental problem with the decision - Labour was trying to ensure a separation of powers where none exists. Take for example the anomalous existence of the Lord Chancellor, who as a cabinet minister, head of the judiciary and president of the House of Lords sat in all three branches of government, until this historic high office was abolished by Blair’s government, that is. Under our constitution the executive, legislature and judiciary are deeply intertwined together in Parliament, which is sovereign. While the Law Lords were in the House of Lords, it is therefore arguable that the impact of their rulings on legislation was legitimate, as they were an integral part of the sovereign body. Now they are out of Parliament, the Law Lords, although they have exactly the same role and powers, could potentially undermine parliamentary sovereignty simply by exercising them.
Furthermore, there is the risk a supreme court will assert itself and overstep its powers. The threat of this is more real than you might think when you consider that it is precisely what the U.S. Supreme Court did. Nowhere in the American Constitution is the court given the power to strike down legislation as unconstitutional, yet the justices awarded it to themselves in 1803 with their ruling in the Marbury v. Madison case. There is little chance any Prime Minister would dare to utter President Andrew Jackson's response to the Supreme Court striking down his Indian Removal Act in 1832, ‘the justices have made their decision, now let them enforce it’. Given that the U.S. Supreme Court is still ruling on constitutionality, even Jackson's stand was insufficient to counter the growth of the court's power. One year after its creation ours already asserts that ‘the impact of Supreme Court decisions will extend far beyond the parties involved in any given case, shaping our society, and directly affecting our everyday lives.’[2]
The Coalition Government is just as blasé with the constitution. Last week at the Conservative Party Conference the Foreign Secretary announced that ‘we will introduce a bill to make it the law that if any future government wishes to sign a treaty giving away more areas of power it will be put to the British people in a referendum’.[3] While the decision to prevent the future cession of power away from our government without consent is commendable, I question whether the government recognises the magnitude of enshrining referenda in law. This will substantially undermine the sovereignty of Parliament by in effect dividing sovereignty between it and the people. The supremacy of Parliament has already been curtailed to a large degree by membership of the European Union, with EU regulation taking precedence over British law (for all you Europhiles reading, this is a fact, not anti-European invective).
Requiring a popular vote on an issue under the control of Parliament further diffuses sovereignty in the UK, creating a sort of ‘sovereignty trinity’, where supreme authority is no longer vest solely in Parliament as was traditionally the case, but is shared with the people and the EU. In the modern age popular sovereignty may not be a bad thing (unlike a Supreme Court), but this decision does not relinquish sovereignty outright to the British people. Instead it simply undermines Parliament’s pre-eminence and cedes ultimate authority to the electorate on a single issue. Consequently, a statutory referendum on this issue creates a very peculiar arrangement. It means that Parliament is diminishing its supremacy so that its supremacy can further be diminished in the future. Parliament is granting voters control over whether its sovereignty is diluted and is therefore further limiting that sovereignty in the process.
Two successive governments have now meddled in the delicately balanced and complicated mess that comprises the British constitution. Be it change for the sake of change or in order to ride the tide of popular sentiment, considerable alterations have been made to our system of government without much thought towards the consequences beyond the next day’s headlines.


Stephen Goss

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