This is a critical moment for democracy in this country. We are in the midst of a structural, political and moral crisis - and an election campaign conducted under an obsolete and dysfunctional electoral system, unable to reflect the results of the multi-party country we have become, now expressed differently in the four parts of the United Kingdom.
Unlock Democracy is facilitating a debate, appropriately during the anniversary year of the Magna Carta, launched by the following statement which measures the quality of governance, the subjection of the executive to the rule of law and the protection of human rights against three key principles deriving from Magna Carta.
The authors hope this will help to lay the groundwork for a reformed state under a written constitution fit for the new digital era. Unlock Democracy welcomes further contributions to that debate to shape our thinking as we draw up a post-election declaration of intent.
Celebration of the 800th anniversary of the Magna Carta is under way in this country. The Prime Minister wishes to use the anniversary of the Great Charter, the short-lived constitutional settlement that the English barons imposed on King John in 1215, as an opportunity for every child to learn about “the foundation of all our laws and values”.
Magna Carta was and remains important because the barons forced King John to acknowledge that his rule was limited by the principles of the Charter, making him subject to the rule of law and guaranteeing rights to both the barons and his free subjects.
Among these rights were the right to freedom of the person and security of possessions, subject to trial by a jury of peers (i.e., equals) according to the law and without interference from the monarch. The Charter also guaranteed the ancient liberties of the City of London and other cities, boroughs and towns. Most controversially, the Charter spelled out the penalties to be applied if the monarch infringed these limits. Early in its life, in 1217, the Magna Carta was complemented by the Charter of the Forest which re-established the principle that the ever-expanding lands appropriated as royal forest could not serve the exclusive use of the monarch, but remained available to all freemen for foraging and animal grazing, thus ensuring their economic livelihoods.
We must approach the idea of “celebrating” the Magna Carta with caution. The Charter has given rise to much bad history; and there is a danger that the substantial principles to which it has given rise will be swamped by a celebration that encourages a complacent belief in the uniquely British, or English, aptitude for democracy and freedom and their centuries’ old continuity and progress through our history. We are assured that the rule of law has run almost continuously since 1215. The recent Conservative Party document that seeks to justify a breach with the European Court of Human Rights hymns Britain’s,
‘long history of protecting human rights at home and standing up for those values abroad. From Magna Carta in 1215 to the Bill of Rights and the Claim of Right in 1689 and over centuries through our Common Law tradition . . .’
Magna Carta was of course written by barons for barons: that is, by rich and influential feudal land-owners in their own interests. However, it was a settlement that has subsequently been elevated and built on to inspire a never-ending struggle to bring king or government to account and establish the rule of law and human rights. Far from being a continuous process, this struggle has been half won and lost and half won again several times over, and has cost much bloodshed and injustice along the way. The Magna Carta has been a significant moral and legal foundation for a struggle that is far from over.
Unlock Democracy believes that we should reject self-congratulatory celebration this year and use the old charter to hold our democracy up for inspection. The anniversary should be the occasion for deliberative and informed public debate on the principles that have built on the Charter and the earlier tradition that inspired it; on close examination of our constitutional and political framework in 2015; and on how far this framework falls short of achieving the basic principles that derive from the barons’ revolt. Let us then not “celebrate” Magna Carta – let’s take the opportunity of the occasion to issue a rallying call for constitutional and political renewal and the advance of laws and values that give us, as citizens not subjects, freedom under the law and democratic governance.
There are three key principles embodied by the Great Charter and the Charter of the Forest which are still valid today:
- The principle that the executive should be subject to the rule of law, and accountable to Parliament and the people;
- The principle that there should be basic rights for all, protected from government intrusion and erosion and limited only by due legal process; and
- The principle that there is a public realm of common citizenship and essential public goods and space which ought not to be appropriated for private benefit.
In our view, each of these principles has been put under threat by successive governments and external forces, as we shall show. Like the barons, we list a number of concerns and “grievances” which could provide the basis for a new Charter of Modern Democracy, fit for people in the twenty-first century.
Part one: concerns and grievances
First, a summary. Politics in Britain retains a traditionally democratic form, and may even seem to be reassuringly improved. Politics is considerably more transparent than a generation ago. Proceedings in Parliament follow familiar patterns. Reinvigorated select committees reach out to the public. Our judiciary remains robustly independent of government. Freedom of information laws open up government and the public sector to scrutiny. The public and private activities of the political elite are subject to relentless media scrutiny.
But we are in the midst of a structural and political crisis of the British state. Last year’s Scottish referendum struck the exhausted fabric of the United Kingdom like a wrecking ball and has provoked damaging divisions whose impact on the forthcoming general election may be profound; and which may lead to the break-up of the United Kingdom.
It has prompted divisive and unworkable proposals for “English votes for English laws” and has exposed the weakness of a political system which cannot prevent major constitutional issues from being determined by a governing party’s sectional interests. It has inspired demands across the country for devolution and freedom from the oppressive weight of the Union’s over-centralised state.
The contrast between the intense political engagement of the Scottish public in the referendum debate and stale “politics as usual” has shown that the crisis of the state is also a crisis of our politics: distrust and discontent with the political class and parties is deep and widespread. There is however the paradox that weak though their connect with the people is, the political parties in government still wield disproportionately strong executive power.
We, the people, have no trust in politics and politicians. We find that the Westminster culture is introverted, opaque, self-seeking, corrupt and remote. We are badly governed by a party political elite, split into three clubs but sharing significant social characteristics. This is an elite that seems to be driven more by self-seeking party advantage than by the public interest. That is unwilling to engage in open and deliberative debate. That is hostile to judicial oversight and resists the rule of law. That is too arrogant to respond to the wishes of the people and informed advice from civil society organisations, charities and even its own agencies.
Two out of three us agree that the governing system itself is in need of significant improvement. Surveys reveal that we feel powerless between elections and want more power. The revelations of MPs fiddling their expenses - a feeble parody of practice in the private sector – were an unforgettable shock. They showed just how far the corruption of the public realm had gone. Never mind that the majority of MPs are decent and hard-working people; lobbying and other scandals continually reinforce the impression of a venal political system that is socially and economically remote from the majority of the public.
This dislocation is made deeper by a cleavage between government policy and people’s everyday lives. Whereas the governments that the political elite controls seek above all to maintain the economy through the state’s complicity with corporate and City power, people in their everyday lives experience the uncertain consequences of the policies that ensue.
The established political parties, the sinews of representative democracy, are widely held in contempt. But paradoxically, the two main parties are as strong as they are weak; the electoral system and custom sustain them as cartel parties in and near political power, even while they are dying on their feet. Less than one in a hundred people are members of a political party. The elites that command them are as remote from their grassroots members as they are from the general public.
For all the emphasis on “strong government” that is deployed to justify majoritarian party rule, they fudge politically awkward decisions and retreat from necessary long-term policies. They do not engage with the public directly, but instead channel their activities and messages towards particular audiences. Their main source of contact is mediated through the broadcast and print media in circular dialogue with media professionals, the party politicians observing the evasive discipline of cleaving to a pre-determined message; their interrogators seeking to expose deceit, real or assumed, and trying to trick them into “gaffes”. The dictum wrongly attributed to Jeremy Paxman, ‘Why is this lying bastard lying to me?’, seems to dominate these exchanges. The solution might be to give straight answers to questions.
Despite continual evidence that we as a society have an abiding interest in politics, and in a wide variety of political issues, a democratic deficit exists between most of us and party politics. Causes arise and overflow on the social media where the unrepresented vote-less young are especially active. Some causes inspire both traditional and new modes of protest. Ultimately, the resentment about the democratic deficit stems from the refusal of governments of all shapes and colours and the political parties to observe the obligations of representative democracy. Representative democracy doesn’t mean that we govern ourselves, but that governments which we elect are responsible to us and act in our interests. A main task of representative government is to hold a balance between the private interests of the rich and powerful and the general interest of the population at large – the public interest.
Archaic constitutional institutions and unreformed practices intensify the dislocation between rulers and the ruled: they confirm both the exalted insider status of the political class and reinforce the outsiders’ sense of being powerless and unheard. For all the tours that MPs lead around the building, even Parliament itself constitutes an institutional and political barrier to the people.
Two major concerns
We have two major concerns about the way in which recent governments make use of the power of Britain’s highly centralised state. First, they put their virtually unrestrained power at the service of global corporate and financial institutions that wield considerable economic and political power over Britain and across the world rather than employing the power of the nation state to moderate their conduct for the public good and to curb their infiltration of our politics and governance. But our governments act in the interests of these institutions at the expense of the people and encourage and assist them to invade and take over public services and the public realm. We are experiencing a modern enclosure movement. As we shall show, the higher echelons of the state, politics and business share a common sense of purpose - the dominion of government over us is symbiotically related to the greater dominion of the global corporate elite.
Secondly, the state maintains through GCHQ what is reputedly the most invasive system of mass surveillance in the world, intercepting everyone’s telephone calls, emails, texts, etc., and plotting their personal internet histories, outwith effective legal oversight. GCHQ shares surveillance information with the United States. Our security agencies collaborate intimately with US agencies in counter terrorism activity, even to the point of complicity in illegal rendition and torture of prisoners, which is unlawful under British law. The rule of law does not operate in this secret realm which subverts the balance of power between the state and the citizen. A senior chief constable has warned that police officers in the UK are being turned into “thought police” under drastic anti-terrorism legislation. He was particularly alarmed that the “fine line” between free speech and extremism is being decided not in Parliament and civil society but by “securocrats”, including the security services, government and senior police officers. Instead of being ruled under the first principle of representative government – that is, that the people control the state through the ballot and representative institutions – the state is taking control of our lives as citizens. The surveillance structure is already mis-used: it extends to spying on legitimate grassroots protesters and even to the privileged communications of lawyers with clients and of journalists. Such conduct has a chilling effect on free association, free speech and public protest and has the potential to be an oppressive instrument of authoritarian rule in the wrong hands.
Yes, the vote remains. But our elections are losing legitimacy for two reasons. First, because the electoral register - the very foundation of electoral democracy - is incomplete and biased in its composition. Secondly, because the “first past the post” (FPTP) electoral system, as is well known, produces disproportionate outcomes and is too clumsy to reflect the societal changes that are rapidly reducing previous loyalties to the major political parties. General elections are no longer “general”. Five to six parties are being crammed into a two-party electoral system in England, Scotland, Wales and Northern Ireland with unpredictable results for the whole country. We are entering into an era of electoral lottery.
King John Adds a Digital Signature to the Magna Carta. Flickr/Mike Licht. Some rights reserved.
Principle 1: the rule of law and parliamentary sovereignty
The first key principle that has been built on the 1215 settlement is that government and the executive should be subject to the law of the land; and secondly, that government should rule in accordance with “the common counsel of the realm” – that is nowadays, with and through a Parliament freely elected by the people.
It is important to note that the barons’ rebellion was inspired not only by the immediate oppressions and taxes of an unscrupulous king, but also by traditional understanding of the rules of monarchical rule by consent, expressed on occasion in coronation oaths. Thus Magna Carta is generally regarded as a forerunner of the written constitutions in democracies around the world, but not yet in the very country where it was sealed. In drawing upon 1215, we should recognise the need for a written constitution which sets out the rights and obligations of inhabitants in this country, defines and limits the powers of the state and establishes an independent judiciary to interpret and enforce both. 1215 also has symbolic importance as an example of the value of acting collectively in a common cause. We should bear in mind the importance of the popular understanding of democracy and personal freedom in modern Britain, where collective action to secure democracy and human rights ultimately lies.
The doctrine of Parliamentary Sovereignty is misleadingly presented to the public as the expression through the House of Commons of the popular will. In fact, it is a device that makes subjects of us, not citizens of a popular rights-based democracy under the rule of law. Parliamentary Sovereignty is actually the sovereignty of “the Crown in Parliament”, in other words, sovereign power is invested in the Prime Minister and his or her government in a Parliament they control. The constitution also sets this hybrid Parliament above the courts as the supreme law-making court.
It has long been recognised by constitutional authorities that Parliamentary Sovereignty confers almost unbounded power on the executive and thus the state. In the nineteenth century it was assumed that the self-discipline of premiers and ministers and their respect for unwritten rules of conduct provided sufficient protection against “elective dictatorship”. In the modern era, governments of whatever colour do not do constitutional restraint. The authors of Charter 88 wrote a generation ago, “our political, human and social rights are being curtailed, while the powers of the executive have increased, are increasing and ought to be diminished”. This judgment remains true today. Prime Ministers and ministers rule the House of Commons and consequently the country. Behind them, under the doctrine, government departments and countless civil servants, the security services, agencies, quangos and other bodies rule largely unobserved. Alarmingly, the power to make crucial decisions can be reduced to the Prime Minister and his or her coterie, as under Tony Blair’s sofa government in the “den” of Number 10. As Lord Butler observed in his 2004 report on the Iraq invasion, the “informality and circumscribed character of the government’s procedures” put at risk the scope for informed collective political judgment. A risk we still run.
The executive writ
The executive writ runs throughout society. The executive commands the whole apparatus of our highly centralised state against which there are few countermanding institutions. In Parliament itself, the dominant rule is that the executive’s business must get through. The government controls the House’s agenda. The governing party, or coalition, for the most part relies on party loyalty to rule, but also exercises powers of discipline and patronage over its members (though recently, rumps of dissident party MPs have shown that they can sometimes impose their own agendas on government, and splits within the coalitional government have disrupted its business).
Recent reforms have reinvigorated the work of the normally bipartisan select committees, but the results are fitful and they are woefully under-resourced; meanwhile the standing committees which examine legislative proposals have a government majority and subject new laws to only formal scrutiny. The appointed House of Lords exercises a recognised role as a revising chamber, but its scrutiny is non-democratic. Governments use the chamber as a receptacle for amendments revising their legislative proposals. Most independent amendments are generally rejected by the Commons, except where on occasion it is able to negotiate a deal using its delaying powers. The executive can at any time change the Upper House’s composition.
Lower down, there is an absence of elected authorities at regional level, except in Scotland, Wales, Northern Ireland and London where a devolved parliament and assemblies exercise limited powers. Subdued local authorities are deprived of their autonomy, starved of funding to the point at which they can scarcely exercise their statutory duties (for example, to protect vulnerable children; to provide social care for the old and vulnerable; to make available services to people with disabilities), and have lost many significant functions and decision-making powers. Under the false rubric of “localism”, they are obliged to obey central governments’ orders.
Governments are thus virtually all-powerful as they bestride both the political and legislative arenas. They combine executive powers of two kinds: continuing royal prerogative powers inherited from absolute monarchy that are independent of Parliament; and those that they take upon themselves through Acts of Parliament. Their supremacy in Parliament combines legislative and executive powers, allowing them to make statute law and empower themselves through largely unexamined delegated legislative processes, thus adding to their political mastery. There are no legal limitations on their power to legislate through Parliament, except when they seek to make measures that restrain judicial review. They may in constitutional theory make or unmake any law whatever, even if their action is absurd or utterly repugnant.
As we have observed above, Parliamentary Sovereignty raises Parliament above the courts. We may demonstrate the weakness of Parliament and the irrelevance of courts on key issues at key moments by reference ( to take just two examples) to their inability to prevent the illegal invasion of Iraq in 2003 and to deal with the vast invasion of people’s privacy revealed by Edward Snowden in 2013 - and then by government’s decision to drive legislation through the Commons in a single day last July, legitimising its powers to demand data retention by communications companies. This power was found by the European Court of Justice to be an invasion of privacy and a breach of fundamental human rights. That Act had cross-party backing.
These two examples are illustrative of a dangerous recent development in the use by ministers of the state’s executive powers. Since the Thatcher era, governments, ministers and many senior politicians, on both left and right, have wrongly taken electoral success as a “democratic mandate” to act as they see fit (see ‘The claim to a Democratic Mandate’, below).
Towards executive plutocracy
It is time to move beyond the familiar analysis of the damaging effects of the over-powerful state on our democracy, human rights and governance. We live in a new global era with new masters. Power lives only in part with elected governments round the world, much more so with huge global corporations, banks too big to fail, financial industries, and media conglomerates. Today’s parallel with feudal 1215 is the absolute dominance of a “collective monarchy”, combining the power not merely of the Westminster state but also of the corporate and financial institutions and their elites. These corporate bodies are more powerful and resourceful than many nation states and exercise additional power over any one national government through their capacity to move their operations to another nation if they object to its policies. Yet their powers are circumscribed by their market needs and governments are not powerless to protect their peoples. Our governments however put the overweening power of Britain’s centralised state at the service of these private giants; fusing the dominion of the state with that of the market. They act in the interests of these institutions at the expense of the interests of the people whom they represent. There is also a dominant ethos and rhetoric that legitimises this imbalance - that the market and private enterprise is good, government and public endeavour is bad. The higher echelons of the state, politics and business share a common sense of purpose; the dominion of government over us is symbiotically related to the greater dominion of the global corporate elite.
A Labour minister once described Britain as an “executive democracy”. We are on the verge of becoming an ‘”executive plutocracy”. Globalisation is tearing our society apart, driving inequalities upwards to stratospheric heights while driving down waged incomes in a labour market made “flexible” in the interests of business. Class and the attendant advantages of high social and professional status are choking social mobility and reinforcing deprivation. Inequality on today’s scale is a profoundly democratic issue since common citizenship is the lifeblood of democracy itself.
Three sets of interlocking and destructive changes since the 1980s have altered the balance between the common weal and private power. First, the ideological triumph of neo-liberal theory, or “market fundamentalism”, has become the common sense across the world of governments, politicians, most of the mass media, central banks, business and global organisations such as the IMF and World Bank. It has become axiomatic that private enterprise is efficient and economically beneficial while the state is incompetent and wasteful. This thinking permeates the mindset of most of Britain’s media organisations which, being owned by media moguls, are part of the corporate world; the public BBC is also influenced by this new “common sense”.
Secondly, transnational corporations and businesses dominate global trade, investment and finance processes and exercise their power to influence and dictate national economic and social policies, for example to demand in the UK the “flexible” labour policies that drive low wages and insecure employment. In the UK, the City of London is the pre-eminent global player as financial trading and services have become central to the UK economy. The City has been described as “a state within the state” which has penetrated the body politic.
Thirdly, these businesses (as well as the rich) are able to avoid paying tax while taking advantage of the infrastructure that makes their wealth and profits possible and gives them their place in the British consumer market. Of 60 tax havens in the world, half are part of the City’s “hub and spoke array” network. In denying Britain the revenues that should pay for public goods and services, they damage our democracy and shift the burden of taxes onto ordinary people.
The power of lobbying
Quite apart from the direct influence over government policies that the financial and corporate sector and individual companies apply, they maintain a huge lobbying industry, enjoying in the words of a Commons Public Administration Select Committee report “privileged access and disproportionate influence…..which is related to the amount of money they are able to bring to bear on the political process”. Their money funds political parties, think tanks (some enjoying charitable status) and politicians’ private offices, and can effectively purchase seats in the second chamber of parliament. There is also the significant “revolving door” phenomenon: that is, the interchange of high status individuals between public office and private business. These channels of influence overlap. We will consider these modes of influence in turn, bearing in mind the high degree of overlap:
- Revolving doors
The “revolving doors” practice is a phenomenon which allows the private sector to penetrate government and secure access to the expertise and networks of the public service. On the one hand, corporate sector personnel “revolve in” to posts in government departments, advisory and executive quangos, departmental boards, and so on; on the other hand, former ministers, top civil servants and other civil service employees “revolve out” into private sector directorships, advisory posts and jobs.
The risks this practice runs are obvious. The state’s task is to pursue the interests of the whole society – i.e., the public interest which is far greater than the sum of private interests. Plainly, the practice can increase access to professional skills and fresh perspectives for government and arguably improve the quality of governance through competition; however, it also diminishes the ethic of public service, contributes to the “hollowing out” of government and reinforces the close linkage between the private sector and government.
The scale of “revolving in” is striking. A parliamentary report in 2010 found that a third of recruits to the senior civil service came mostly from the private sector, and half at the highest level. Private appointees to departmental boards providing strategic and operational direction in government have the opportunity to bring to bear external interests. Government-private sector partnerships exist to open up the public sector to private business and to promote UK business overseas.
“Revolving out” is the cause for special alarm. The transition to lucrative posts in private industry can now be said to be the normal expectation for a minister or top-level official, especially in the health, defence, finance and banking sectors. The practice is too lightly regulated. Tony Blair led seven former ministers into financial services, taking posts with J P Morgan and Zurich. In 2010, Channel Four’s Dispatches and the Sunday Times propositioned 20 former ministers and MPs with offers for paid consultancy; 15 agreed to meet.The pitches for employment from some former ministers are egregious examples of greed - one said he wanted to make “some real money”, another described himself as “a cab for hire”. Very recently two highly-respected senior politicians also succumbed to a media honey-trap. The prevalence of “revolving out”, and the ease with which it is done, is corrupting public life.
- Political funding
Party politics has become an increasingly costly business since the 1970s. The main parties all depend on wealthy donors, typically from the business and financial community, to fund their activities. This is as true of the Labour Party as of the Conservatives and Liberal Democrats, though Labour also gets substantial funding from trade unions. Several studies have shown that a significant number of donations to the parties emanate from donor groups in trade, finance and industry. In the period running up to the 2010 general election, their donations to the Conservatives rose from a quarter to a half of all Conservative donations; and in the run-up to the 2015 election, are being supplemented by a surge of contributions from property businesses, worried by the prospect of a “mansion tax” under a Labour government. It is reasonable to infer that these donations “buy” influence over party and government policies, while they “buy” knighthoods and peerages (and thus a place in Parliament), demeaning our politics. Party fund-raising stoops to expensive dinners with ministers and leading politicians of the parties, and even the auction of a tennis match with the Prime Minister and Mayor of London, a snip at £160,000. A formal meeting with a minister has to be disclosed in the interests of open government; paid-for access is kept quiet in the private domain.
Political parties are legally obliged to disclose donations worth more than £7,500 to the Electoral Commission. The purpose of the rule is to ensure that the processes of political donations are transparent and above board. However, the Conservative donors are funnelling hundreds of thousands of pounds’ worth of donations to the party through secretive dining clubs that allow donors to keep their identity hidden as long as they contribute less than £7,500. Over the last decade as much as £800,000, for example, has been passed from the United and Cecil Club to Conservative marginal seats. Ministers habitually address club dinners, a matter of concern since the dinners give members unofficial and unrecorded access.
Lobbying is as old as politics. It is an essential element in democratic governance. It is a means to inform government and public authorities of a broad range of interests, benefits and consequences that an existing or proposed public policy might affect; and to provide them with information about a possible new initiative.
But it must be an equal, open and transparent process. The very term “lobbying” is misleading in modern Britain when it is applied to the activities of global corporations, domestic companies and lobbying firms. They are no longer confined to the “lobby”. They are an indispensable part of the political community and government. As the shrinking state is hollowed out, the vast lobbying industry – worth some £2 billion – is willing and able to fill the gaps, offering skills and expertise in, for example, establishing regulatory systems, setting standards and fixing tax rates, drafting legislative amendments, acting as consultants, hijacking public sector reforms, recruiting and talking endlessly to MPs and peers (and actually exploiting peers’ passes to get lobbyists into Parliament). Food and drink, energy, petroleum, pharmaceutical, nuclear and other companies are highly successful in influencing government policies. The City of London Corporation even has its own official parliamentary lobbyist, the Remembrancer. Numerous individual cases raise the suspicion of improper influence, which by their nature are unprovable, but diminish popular trust.
The government’s Lobbying Act, designed to regulate commercial lobbying, was watered down after substantial input from the industry, while tighter controls were imposed on trade unions and civil society organisations. The Prime Minister, denouncing Britain’s “broken politics” and “crony capitalism” while in opposition, famously said that the lobbying was the next big scandal waiting to happen. In fact, it is happening.
- Funding think tanks
Providing funds for think tanks offers business a means to influence policy and to frame the terms of public debate without being logged by the Electoral Commission. Think tanks provide a public impression of impartiality and academic rigour, even though they may be devoted to the promotion of a particular ideology and may be closely linked to a particular political party. Unlike with political parties, the names of donors do not have to be identified in the accounts; if the think tanks are charities, donations are tax-deductible.
- The claim to a democratic mandate
Modern ministers have been degrading the conduct of government by asserting the primacy of what they call their “democratic mandate” and indulging in a bullying resentment of the role of the courts in applying and asserting the rule of law over government policies. Judicial rulings, whether under the common law or the Human Rights Act and the European Convention have provoked government rage over numerous issues. Ministers complain bitterly that “unelected judges” have overturned executive policies, defined as “parliamentary” and thus democratic by inference.
The issue in most cases arises from governments’ anger over rulings in the European Court and domestic court and tribunals, asserting due process or protecting minority rights, including those of “terrorist suspects”, against majority opinion; rulings which amount to one of the main strands of the rule of law.
Ministers summon up populist backing, or “decent common sense”, as justification for policies that the courts obstruct. But their argument goes wider. They commonly assert that the resistance of the courts is illegitimate because they are defying the will of elected government. Thus they argue that the executive, wearing the clothes of a Parliament that it dominates, possesses unchallengeable political and legislative power because it enjoys electoral endorsement. A dubious proposal, as we shall see. It is an intrinsic feature of mature democracy that neither executive nor legislative authority is absolute. If governments are to operate under the rule of law, then government actions and laws must be subject to review by the courts.
In most modern democracies, a written constitution governs the relationship between the respective powers of the executive, legislature and the courts. But the historic, un-codified British constitution provides no outright constitutional brake upon misuse of executive powers. Recent governments have been increasingly unwilling to respect not only the independent authority and judgment of the judiciary, but of the civil service, the House of Lords, local government and Parliament itself. Their willingness to press ahead with policies and actions without full deliberation and genuine consultation clearly reveals the dangers inherent in the growing imbalance of power between the institutions. Ministers have been increasingly ready to usurp and override the traditional role of the senior civil service to act as an impartial body, “speaking truth to power”. It is hardly surprising that two eminent political scientists were able recently to review the decisions of successive recent governments, taken without due deliberation and consultation, and to conclude with evidence that they are prone to substantial “blunders” in policy-making. Especially, since 1997, governments have introduced fundamental constitutional changes without due consultation, often for reasons of partisan advantage.
The new insistence upon the “democratic mandate” is profoundly unconstitutional, and would be so even if the party of those who brandish this demand actually had a genuine majority of the popular vote. But the claims of ministers, both in the coalition government and its Labour predecessor, that they possess a “democratic mandate” when justifying their actions and repudiating judicial challenge, don’t even have the weight of a genuine mandate to justify them. No recent government has come close to a 50 per cent majority of the popular vote. Our “first past the post” electoral system is notoriously disproportionate in the way the parties are represented in Parliament.
Take the last two general elections. In the 2005 general election, Labour secured a majority of 70 parliamentary seats over all other parties on only 35.2 per cent of those voting. In 2010, the two parties that formed the coalition government secured 59 per cent of the popular vote and 56 per cent of seats in the Commons. (The higher return per vote for the Conservatives was offset by the low return for the Liberal Democrats.)
On the face of it, the 2005 result was outrageous and the construction of the 2010 coalition fair. But the “democratic mandates” of 2005 and 2010 were both fundamentally flawed in two respects. First, the turnout in 2005 was very low, at 61.4 per cent of registered voters, which equates to the endorsement of just under 22 per cent of registered voters. The turnout in 2015 was 65 per cent, which means that the coalition parties received the support of only 39 per cent of those eligible to vote.
Secondly, these figures exclude the substantial number of people who were not registered to vote. If we add registered and unregistered but eligible citizens together, the governing parties in the coalition government won just over a third – 34.1 per cent – of the votes of the eligible population. Conservative MPs have most vociferously asserted their “democratic mandate”; yet their party mustered just over a fifth of potential votes in 2010. Of course, the coalition parties have not always voted in concert, but they have combined to pursue vigorous policies to bring down the financial deficit; and it can by no means be said that voters for either party anticipated them going into coalition. Many coalition policies were foreshadowed in the election manifesto of only one of the coalition partners; some policies were in neither and some notoriously contradicted explicit pledges. The Coalition Agreement negotiated by the party leaders after the 2010 election was not endorsed by the electorate. If democratic legitimacy implies substantial popular endorsement, then the “democratic mandate” of recent British governments rests on weak foundations.
The implications of these figures go wider and throw into question the very foundations of our democratic process. Its legitimacy rests on the principle of equality between citizens, but the electoral register is deficient and deteriorating – one in seven eligible people are not registered. It manifestly doesn’t deliver the measure of equality required, and worse still, is very unequal between different types and classes of citizens. Voter registration rates are particularly low among certain groups: the young, people renting from social and private landlords, urban dwellers, people sharing houses, certain ethnic groups and students; whereas registration is high among home-owners, older people and in the suburbs and rural areas. Just 70 per cent of young people aged from 20 to 24; 63 per cent of private sector tenants; and 62 per cent of Commonwealth citizens who are eligible to vote are registered.
There are implications for the rule of law here, since unregistered people are not eligible for jury service. As absence from the electoral register is more common among groups who are subject to discrimination in the justice system, the lack of representation of these groups on juries hinders equal access to justice. The weakness and social bias of the register also throws into question the legitimacy of UK referendums.
Further, constituency boundaries are calculated on the basis of the incomplete and biased electoral roll rather than on the actual population size, an alternative which is both manifestly a more accurate and fairer system for determining constituencies and more common internationally.
This has meant that areas of low registration, mostly urban areas, will over time be downgraded at successive boundary reviews, thus compounding the inequalities that derive from our “first past the post” electoral system. But the way we register to vote is changing. A new system of Individual Electoral Registration (IER) is being introduced. While being a modernising reform, this is also a momentous change which will very likely reduce the electoral roll still further and which threatens to contribute to an immediate and heavily biased re-structuring of our parliamentary constituencies. When Northern Ireland introduced IER in 2002, the number of registered voters shrank by 10 per cent. Ten years later, the Electoral Commission reported a significant decline in registration; 29 per cent of the eligible population there were not registered.
An estimated 7.5 million potential voters in England and Wales are already missing from the register. Thus the prospect of further decline is a major challenge to a vision of the UK as a modern inclusive and participatory democracy, especially if as seems likely the same disenfranchised groups systematically fall off the register. Whole sections of society will be privileged while others may be deprived of their right to decide how Britain should be governed.
Politicians naturally privilege those sections of the community who are registered while neglecting the unregistered; and there are significant political implications, as Conservative and UKIP support is concentrated among easy-to-register groups and Labour and Liberal Democrat support tends to be higher among groups who will disappear from the register.
The new system has gone live for new entries, but the people already registered under the old system will be carried over until the 2015 general election. The next government however may then decide to implement the coalition government’s intention to purge the register in late 2015 and subsequent elections would very likely be held on a seriously incomplete and biased register. The introduction of this new register would have malign consequences for parliamentary elections thereafter.
Clauses under the Parliamentary Voting System and Constituencies Act, which were delayed in the Conservative row with their Liberal Democrat coalition partners in 2013, insist that a boundary review takes place in 2018 and that the new constituency boundaries will in future be based strictly on registered voters to equalise the size of constituencies. The combination of IER and new boundary rules, stricter than those of the past, will mean that the bias among registered voters will be incorporated at a stroke into the structure of the electoral system.
- Modes of representation
Fundamental questions about the unrepresentative nature of our Parliament remain. There are three ways in which the House of Commons could be made representative:
- according to geographical distribution;
- according to each party’s share of the votes cast; and
- according to its social composition
These three modes of representation are all important for democracy. The first, because people should not be privileged or disadvantaged just because they live in the country rather than a city, or in the north-west or south-east; nor should Parliament be weighted towards any particular set of geographical interests.
The second, because modern elections are primarily about choosing a party or parties to form a government: seats in Parliament should therefore reflect the vote shares of the parties, and people’s votes should not be more or less effective according to where they vote or which party they vote for.
The third, because a Parliament heavily biased towards one social group, or set of groups, or which excludes certain groups, will be limited in experience and more narrowly based. These three dimensions of representation are inter-related; and in the case of this and recent Parliaments the dominance of members of the professional and managerial class has subverted the ideal of a socially balanced chamber; and has also submerged the idea of geographical representation, since the major parties choose candidates with this background in preference to “local” candidates, and often parachute chosen figures into safe seats.
There is also an increasingly significant strand of MPs and candidates who have pursued an exclusively party political career, or in related occupations such as lobbying, PR and journalism. This phenomenon has contributed to Parliament’s distinct loss in esteem, trust and legitimacy, and alienation from politics, especially among people who are excluded.
Elections under first past the post have notoriously produced utterly disproportionate results throughout the postwar period, normally swelling the seat count for the leading party - and thus contributing to the hubris of governing parties. The way in which first past the post has secured established parties in power with only minority support at the expense of rival parties and creates “electoral deserts” is well known. Less attention has been paid to its unfair numbing effect. More and more parliamentary constituencies are safe seats while the number of marginal constituencies – those which can change hands on a 5 per cent or less swing of the vote - has halved from 166 in 1955 to 83 today. The decisions of a few hundred thousand swing voters in so few constituencies are overwhelmingly important in determining the policies of the parties and the outcomes of general elections.
We have however reached a Rubicon. The traditional “two-party” system has fragmented as class structures and political attitudes have changed over time. In the 1951 general election, 97 per cent of the electorate voted either Conservative or Labour. In 2010, only 65 per cent of voters – and given the low turnout, 42 per cent of the electorate and 34.1 per cent of the eligible population – chose one or other of the two dominant parties. In 2015 the turnout may well be lower while the number of rival parties will he higher: five in England, six in Scotland, five in Wales and Northern Ireland. Our obsolete electoral system will not be able to cope with this diversity.
The 2015 election may descend into farce. Unfair and anomalous results will multiply – and the overall result will be entirely unrepresentative at a time when our politics require a governing party or coalition with the legitimacy, trust and humility to meet major constitutional, social and economic challenges.
19th century coloured wood engraving of King John of England signing Magna Carta. Wikicommons. Some rights reserved.
Principle 2: basic rights for all
Human rights are essential to democracy which is far wider than just what happens at elections and in Parliament. For example, the freedoms of association, assembly and expression are fundamental to a healthy working democracy in which citizens are free to participate and make their views and demands known. So is equality of citizenship and therefore equality before the law. So is protection from oppressive and arbitrary government and from torture. It is politically illiterate to argue as some do that human rights benefit only criminals and scroungers; or to accuse the courts of being “undemocratic” when they act to protect human rights – that is, protecting the foundations of democracy.
Further, there is an unfortunate tendency to discuss human rights only in the context of the freedoms and protections of individual citizens and groups. Human rights instruments place a duty on governments to maintain a universal system of freedoms and protections, not just the duty to secure “the right to life” which tends to be the only one that official discourse acknowledges.
The Human Rights Act 1998 wrote the European Convention on Human Rights into British law and gave our citizens the right to remedies in the British courts for breaches of Convention rights (rather than embarking on the long and costly legal journey to the European Court of Human Rights).
In this way the Act increased the “sovereignty” of our judiciary by enabling our judges to apply the Convention directly in the British courts. The Convention sets standards of human rights that a country with our traditions would wish to uphold for its inhabitants: absolute rights, such as the right to life and freedom from torture; and qualified rights, such as the right to family and private life, where a balance is to be held between an applicant’s rights and the rights of others.
However, the 1998 Act “fudged” the issue of parliamentary sovereignty by denying the domestic courts the authority to strike down legislation that breached human rights, instead giving them a power only to issue a certificate of non-compliance which Parliament, subject to executive writ, could ignore or resolve as ministers and MPs in Parliament saw fit. Thus the Act does not fully protect people “from government intrusion and erosion” of their rights. Yet it has transformed the opportunities for ordinary citizens to assert their rights and, where necessary, to enforce them more swiftly in the European Court and domestic courts.
It is heartening that the Prime Minister wishes to celebrate the exemplary importance of Magna Carta. What remains difficult to understand is how at the same time his government (like Labour previously) can pursue policies which are diametrically opposed to its precepts. Restrictions on legal aid, charges on access to the employment tribunal, attempts to curb access to judicial review, and other practices, such as the common abuse of stop and search powers, are entirely inconsistent with the Convention’s clear words. Erosions of civil and political rights are inconsistent with the word and spirit of Magna Carta – the huge and systemic invasion of privacy, secret courts, house arrest, reductions in trade union rights, restrictions on the ability of civil society organisations and charities to speak out freely, and other curbs on freedom of assembly and free speech and association. The Prime Minister leads a party whose leaders repudiate the values of Magna Carta and are currently seeking to withdraw from the terms of the European Convention, its modern equivalent. The Convention embodies the principles of Magna Carta and even reflects its wording.
Access to justice is vital to the rule of law. Legal aid underpins our justice system, providing financial assistance to people who cannot otherwise afford legal representation and access to the courts. It is in this way the cornerstone of the right to a fair trial and can help to give equal access to justice for all, as provided for by the European Convention. Criminal legal aid is central to making a reality of Chapter 39 of Magna Carta that protects individuals from arbitrary arrest and imprisonment. Civil legal aid was designed to put citizens on an equal footing in cases involving family law and civil disputes. But legal aid has a further important function – funding access to the High Court for cases of judicial review, the process by which the courts scrutinise the lawfulness of decisions made by the government and public bodies.
The coalition government has imposed severe cuts on criminal and civil legal aid, and thus on people’s equal access to justice and the resolution of personal and financial issues. Changes to eligibility for legal aid for victims of domestic abuse put increasing numbers of women and children at unnecessary risks of catastrophic harm or damage to their emotional and physical well-being. The government recently sought to drive through cuts to criminal legal aid that the High Court ruled were so unfair as to be unlawful. Taken with the imposition of charges on workers going to the employment tribunal on cases of unfair dismissal, discrimination and other practices - charges in the interests of business to deter workers from seeking justice – it is clear the coalition government has strayed far from Chapter 40 of Magna Carta:
‘To no one will we sell, to no one deny or delay right or justice’.
The government has also been diligently restricting access to the High Court for proceedings for judicial review in an attempt to choke off cases. An attempt to introduce a discriminatory residency test for access to civil legal aid, including judicial review, thus undermining the principle of equality under the law, was blocked by a judicial review challenge. But other measures to restrict access have succeeded. Legal aid no longer covers the costs of making a judicial review application, except (retrospectively) where permission to go ahead has been granted by the court.
This means that most of the costly pre-permission work in judicial review cases is at solicitors’ own risk. The test for the court to grant permission for a judicial review application to go ahead has been made more restrictive. Organisations which make legal submissions, or “interventions”, to assist the court in judicial review hearings could be deterred from doing so by making them liable to pay the costs to other parties of their intervention. This clause could for example make it harder for the Equality and Human Rights Commission to make its considerable contributions to hearings on behalf of people with disabilities, asylum seekers, vulnerable witnesses. Chris Grayling, Lord Chancellor & Justice Secretary, justifies these efforts to restrict judicial review on the grounds that it is being used by undesirable bodies that “seek to disrupt the process of government”, a statement that demeans his office. What he is doing is to undermine the vital role of the courts in ensuring that government is behaving lawfully. He has also taken powers to further revise the rules.
- Rejecting the Human Rights Act
The incorporation of the Convention into British law and the requirement on public authorities to comply with its terms have widened the scale and scope of human rights protection throughout everyday life in the United Kingdom.
From manifold examples of the profound impact and individual dignity that the Act has brought about, we choose to highlight the following: protecting the rights of soldiers in Iraq seriously wounded by “friendly fire”; granting anonymity to a victim of libellous paedophile allegations; recognising the rights of women violated by undercover police officers who entered into sexual relationships with them; bringing to an end a council’s improper surveillance of a family over a school catchment area; prohibiting the use of nocturnal CCTV filming in the bedroom of a couple in residential care with learning difficulties; obliging a local authority to provide school transport to a young learning-disabled girl who lived 2.8 miles from the special school she attended, just inside the three miles criterion of council policy; re-uniting an elderly couple, who had lived together for over 65 years, who were about to be separated when the husband was moved into a residential care home. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes.
Nevertheless, the protection of basic rights under the Act and the direct link with the European Convention is in a precarious position. The outraged comments of government ministers and certain MPs, and biased coverage in the press, have between them created an uninformed hostility among many people to the very idea of human rights.
Ministers in both Labour and Conservative governments have chafed at being overruled on human rights grounds by the European Court (ECHR) and our domestic courts. In 2007, Labour’s Home Secretary, threatened to take the “nuclear option” of opting out or derogating from Article 5 of the European Convention which guarantees the right to liberty. The Conservatives are now preparing their own nuclear option. They are pledged to carry out proposals from Chris Grayling to cut the UK’s link with the European Court of Human Rights, established by the Human Rights Act, even at the risk of being forced to withdraw from the Convention altogether.
The party proposes to replace the 1998 Act with a new “British Bill of Rights and Responsibilities”. This measure would uphold parliamentary sovereignty against the Strasbourg court which Grayling would reduce to an advisory role only. It would incorporate the European Convention into British law again, but would “clarify” how the government considers its clauses should be applied in the British courts: in other words, it would curtail some of the Convention rights in order to draw power back to government and the state. A “triviality test” would prevent human rights laws “being used for minor matters”: meaning that government would decide a priori which human rights would be deemed lawful. His Bill is being presented as a continuation of Britain’s noble tradition of respect for human rights, shorn of foreign interference. But it would be a singular breach of the minimal purpose of any human rights act – which is to hold the executive and legislature to account through the courts. The Bill would subject the protection of human rights to interference from both government and whipped majorities in Parliament.
- Economic and social rights
The democratic principle of equal political citizenship requires that no-one should be allowed to fall below a minimum acceptable level of economic and social existence. Economic and social well-being help create self-confident citizens who are able and willing to play a part in the democratic life of their society. Paid work at fair rates of pay, safe and secure housing, education, health-care, benefits, pensions and services for people who are outside the labour market – in brief, economic and social rights – are vital to political equality and social inclusion.
Unlock Democracy upholds the basic principle of international human rights law that civil and political rights, and economic, social and cultural rights, are indivisible; and considers therefore that socio-economic rights should be introduced in the United Kingdom. The Foreign Office expressed our position succinctly in 2003, insisting that “the choice between economic, social and cultural rights and civil and political rights is a false one . . . unless people have adequate access to food, shelter and health care, they will never be able to enjoy the full range of civil and political rights”.
What has become most striking in recent years on this question is the stark divergence of view between that of the political and judicial establishment and that of popular opinion and of specialist human rights lawyers and civil society organisations. Both Labour and the Conservatives in government have blocked the recognition of economic and social rights, as have the loyalist parties in the Northern Ireland Assembly who condemned the recommendations of the NI Human Rights Commission to introduce a NI Bill of Rights containing basic rights to work, health, “adequate” housing and “an adequate standard of living”. Public opinion is strongly in favour of social and economic rights, as shown by opinion polls, like those of the Joseph Rowntree Reform Trust series, which found consistent majority support for their inclusion in a Bill of Rights. Opinion polls conducted on behalf of the Northern Ireland Human Rights Commission as part of the extensive consultation process on the adoption of a Northern Ireland Bill of Rights found consensus-level support across both communities for the four basic economic and social rights.
King John Granting Magna Carta from the fresco in the Royal Exchange (1900). Wikicommons. Some rights reserved.
Principle 3: protecting public goods from appropriation
The most damaging consequence of the collusion between business and political power has been the systematic market invasion of the “public realm” through privatisation and marketisation policies over the past 30 years.
As we have stated above, it is the modern equivalent of King John’s seizures of land as royal forest and the enclosure movement from about 1750 onwards in which swathes of common land, pastures and waste lands, were expropriated by Acts of Parliament and removed from common use into private ownership by the well-connected rich.
The public realm has been a significant part of our democracy, and especially so since 1945. It has consisted first of all of the range of public assets, services, institutions, agencies, laws and regulations, offices and their occupants that belong (or belonged) to national and local government.
But the public realm is more than the public sector or the sum of its parts. It represents a social-cum-political dimension of democracy where people are equal citizens in the common life of society; and the idea prevails that the activities of government and the public sector serve a general or public interest. The sense of a common good is seen at its best in an ethos of public service with its own distinctive set of values. The tradition of an impartial civil service, recruited on merit and able and willing to advise ministers in governments of different political persuasions without fear, has been a significant expression of this ethic in practice. That tradition has been grievously “hollowed out” by governments since the 1990s.
It is unfortunate that political debate on the role of the state fails to recognise the importance of the public realm – even of its existence beyond public services and key public functions. Yet at a time when the idea of the minimal state is being pursued with great vigour, it is essential that debate is balanced by a strong and principled argument asserting the role of the public realm and its importance to equal and common citizenship. Debate so far has been confined narrowly to a political class that takes it as axiomatic that the private sector is invariably superior to the public sector. It is a debate from which the public has been excluded, though in the case of the NHS, it is true, the people’s attachment to the anachronistic idea of a universal public service has so far slowed down privatisation or the introduction of insurance-based alternatives.
Thanks to a loyal public, the BBC and its non-market funding regime survives against fierce market-led outrage and the inclination of one major party to clip its wings. There is also evidence that most of the electorate stubbornly regards transport and some public utilities as belonging in the public domain. It is certainly more than time to engage the wider public in debate about the boundaries of the public realm, and to apply a “public interest” test to determine what public institutions, services and functions properly belong within it, and which belong in the private sphere; and to ensure that privatised institutions also have a legal duty to openness and a defined public interest.
Yet the wholesale privatisation of assets, services and functions continues to fragment and replace the idea of a public realm with a series of private interest aims and practices. It makes money a major determinant of public policy. Any assumption that decisions on whether or not to privatise are made on pragmatic grounds is mistaken. They are driven by the neo-liberal dogma that the market is always superior to the public sector. Privatisations are largely justified on cost-saving grounds. This is not the place for a full review of the experience of privatisation in practice. But it is fair to say that where privatisation has brought higher costs for users and lower wages for workers, worsening employment conditions and lower quality care and personal services, the costs in social misery and insecurity ought to be entered onto the balance sheet.
Governments themselves should be under a duty to protect and enhance the services and functions that remain public and to establish public interest rules for those that have been privatised but retain obligations to the common good. Beyond the direct impact of privatisation in the public sector, the process serves to undermine the capacity and integrity of government itself and of the services that remain public. There government mimics private enterprise by cost-cutting drives, sacking staff and reducing the quality of performance. Central government’s cuts programme in local government forces local authorities to outsource vital personal services, such as social care, to private companies at ever lower rates of return, damaging the quality of care while making the provision of care financially precarious.
The public realm, with its separate ethos and values, is becoming a mere colony of the private market, with quite different values. Negotiations between the EU and US on the Transatlantic Trade and Investment Partnership (TTIP) are being conducted in secret and ought to be made transparent. There are fears that the protagonists will conclude a deal that would subject decisions of democratic governments to adjudication by non-elected tribunals, and open up the public realm, including the NHS, ever more widely to US and foreign, alongside British, private companies.
Part Two: a charter of modern democracy
Magna Carta and the Charter of the Forest were a linked stab at a written constitution for England. It is high time to finish the job with a written constitution for the United Kingdom that secures a modern rights-based democracy fit for the digital age, with the rule of law, representative and newly devolved government and an active citizenship enjoying the full range of human rights.
Only a written constitution can give stable and democratic form to the interlocking changes necessary for reform. There is a series of general objectives that such a constitution should seek to bring about:-
Two related essential points must be made. A written constitution is a vital cornerstone for establishing the rule of law. If Britain is to give the judiciary the ultimate domestic responsibility for holding the state to account and protecting basic human rights, they will require a constitutional framework within which to come to their judgments.
Without this framework, there is some justification for politicians who resist decision-making by “unelected judges”. Secondly, it is not the place of this or the next government, a political class, “experts” of whatever persuasion, or a putative “great and good”, to determine the shape and detail of a constitution for a modern participatory democracy. It requires the informed endorsement of the people.
Therefore we propose that a nationwide deliberative Constitutional Convention, or Assembly, with popular representation involving ordinary citizens and country-wide consultation, is the only legitimate means for considering and approving a new written constitution and recommending a new scheme of devolution for the United Kingdom. Reform institutions, including ordinary citizens, have lain at the heart of constitutional renewal processes in Canada, the Netherlands, Ireland and Iceland. The Northern Ireland Human Rights Commission’s meticulous processes of education and consultation provide an example of good practice from within the UK.
In order to take forward the general objectives outlined above, we set out a series of more detailed recommendations that should form part of a new settlement:
1. Adopt a written constitution which replaces the pre-democratic principle of Parliamentary Sovereignty with sovereignty of the people; and which makes the courts the guardians of its provisions.
This course is vital to securing acceptance of the rule of law. In our view, the constitutional protections of the independence of the judiciary are sufficient to preserve its impartiality, but a written constitution is vital to provide a democratic framework within which they should administer the rule of law. This provision would also secure their legitimacy. The processes of making its members more representative should be pursued vigorously, to ensure that class, the male gender and high social status are no longer predominant in the law.
2. Introduce a nationwide scheme for devolution independent of the government of the day.
The first stage of a Constitutional Convention’s work must be to introduce a devolution settlement based on the broadest possible consensus. The present structure of governance across the UK is unbalanced and unsustainable, with Scotland, Wales and Northern Ireland enjoying substantial though differing powers to decide their priorities while the Westminster Parliament exercises nearly unrestrained power over decisions affecting England, with more than 80 per cent of the UK population, and of course over reserved issues affecting the whole of the United Kingdom.
The Scottish referendum narrowly affirmed the unity of the United Kingdom, but by no means securely. It has also inspired widespread demands to strip out centralised rule from Westminster and Whitehall, to extend devolution in England beyond London and to enhance devolution where it already exists.
It is vitally important that this process should not be confined to the issue of “English votes for English laws”, a proposition that exaggerates the social and economic homogeneity of England. The north of England has more in common with Scotland than with London and the south east, while certain regions (e.g., Cornwall) and large counties (e.g., Kent) have their own distinct identities.
The devolution process should also reject the framework of the English administrative regions which have no community identity; and should establish the constitutional integrity of local government, its funding, functions and powers.
3. Make Parliament more representative by introducing elections by proportional representation.
At the very least, the composition of the House of Commons should reflect the share of votes for the rival parties at general elections. First-past-the-post elections gravely reduce the electorate’s free choice of parties, candidates and policies and should be replaced by a proportional election system that expands people’s choices and represents them more accurately. Elections at all other levels of government should also be proportional. There is evidence that suggests that proportional representation elections facilitate the election of women and ethnic minority candidates. If the parties do not broaden their selection processes to women, the ethnic minorities and working people, then the state should consider positive measures to right the balance.
4. Act swiftly to prevent the bias in the electoral register seeping into the electoral system.
Meanwhile, the potential crisis of a biased electoral system posed by the combination of the introduction of Individual Electoral Registration, a more incomplete electoral roll and the statutory commitment to a parliamentary boundary review by 2018 should be averted by the government elected in 2015, by reviewing the state of the electoral register before proceeding with the boundary review. The existing pro-Labour bias in the current boundary system also requires reform.
5. Replace the appointed House of Lords with an elected Senate.
If ever an issue signified the slothful responsiveness of a so-called flexible unwritten constitution, it is the continued anomaly of the wholly unrepresentative second chamber over more than a century since it was formally designated for reform. An appointed assembly, biased in terms of its social composition and the areas of the country from which its members are recruited, and augmented by a fraction of hereditary peers, has no place in a modern democracy. The House of Lords must be reformed as a smaller wholly or largely elected Senate, divorced from the honours system and with provisions to prevent it being a less powerful reflection of the Commons.
6. Create an active House of Commons free from executive domination.
The purest way to free Parliament from the executive would be to enforce the doctrine of the separation of powers: that is, to eject the executive entirely from both the House of Commons and a new Senate.
However a less drastic alternative exists. The coalition agreement pledge to establish a business committee in the Commons within three years has been broken. MPs ought not to be vassals in their own House. We recommend that a business committee, elected by members, should be established to take control of the Commons agenda with an obligation to hold the executive accountable and to consider its business in a timely way, allowing time for deliberative debate and effective scrutiny of legislation and government policies.
Draft legislation should be published in advance for early examination in and outside Parliament, using social media and traditional means to reach the public. Parliamentary committees should be given the resources they need to strengthen their ability to hold the executive to account.
7. Place governments under a constitutional duty to maintain a full electoral register.
8. Introduce a broader Civil Service Act to protect the political neutrality of the civil service.
An Act is necessary to protect the neutral role of the civil service and recruitment by merit, its governance and values against political interference by ministers and their special advisers and to strengthen measures to prevent corruption and the erosion of its public duties and ethos by private sector interests. While ministers should continue to determine government policies and legislative proposals, they should also be required to respect the advice of senior civil servants. Special advisers should be confined to giving advice, with no executive or media role. The service’s constitutional position should be placed under oversight by Parliament as well as by the government of the day. Whistleblowers should be given stronger protection against victimisation.
9. Introduce a new Bill of Rights ‘owned’ by society as a whole.
An entrenched Bill of Rights must be at the centre of a new constitutional settlement. The Bill of Rights should draw upon the European Convention as a bedrock and the European Court of Human Rights should remain the final arbiter on ECHR-protected human rights. The constitutional commission that we advocate should undertake an inclusive and informed process that asks not only whether a Bill of Rights is necessary or desirable, but also what rights and freedoms it should contain.
Informed public debate is vitally important to ensure “ownership” by society as a whole of a statute that must reflect public values and aspirations. The Bill could contain other rights, among them the a right to trial by jury; a right to administrative action that is lawful, reasonable and procedurally fair; a right to legal aid; and stronger children’s rights incorporating the UN Convention on the Rights of the Child into UK law.
10. Incorporate social and economic rights in the new Bill of Rights.
The Bill must also begin the process of remedying the social and economic ills catalogued over years in the series of reports on the UK by the UN International Committee on Economic, Social and Cultural Rights.
A new Bill of Rights should uphold the basic principle of international human rights law that the civil and political rights protected under the European Convention, and economic, social and cultural rights, are indivisible. Polls suggest that public opinion is strongly in favour of including social and economic rights to adequate education, health, housing and a decent standard of living.
Governments would have the duty of “progressive realisation” of the four rights over reasonable periods of time. The Bill should also remove the excessive curbs on collective action by workers and trade unions taken in defence of their interests. Social citizenship in western Europe and Scandinavia has led to a more rights-based stance, and in a number of Scandinavian and eastern European countries, socio-economic rights are protected as legally enforceable rights in their constitutions.
We could follow them and South Africa’s example. The Bill of Rights in South Africa protects socio-economic rights to housing, health-care, food, water and social security; and provides that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of these rights. Albie Sachs, the former South African judge, has countered arguments that he and other judges may not understand complex social and economic issues, responding that they “do understand human dignity”.
11. England, Scotland, Wales and Northern Ireland should be empowered to draw up their own Bills of Rights.
The Human Rights Commission in Northern Ireland has already made the case for a Bill of Rights that reflects local needs in the province. There is a case for diversity in the provisions between the different parts of the United Kingdom, so long as they all incorporate the European Convention on Human Rights at their core and respect the universal nature of human rights.
12. Place the activities of GCHQ and other state security agencies under effective legal control independent of the state.
There is no question that jihadist terrorists pose a threat in the UK. We need proportionate laws and security agencies to help protect the nation and people. At the same time, it is vital that the country holds a balance between the measures that it takes to protect us and the preservation of the values and rights that distinguish our society.
It is unconscionable however that that there is no effective oversight of the activities of the security agencies, including the police; that the Snowden revelations of the mass surveillance by GCHQ of the British public and the use of US surveillance material have gone unexamined; and that the inquiry into allegations of UK complicity in the CIA torture regime and unlawful rendition will be relegated to a committee of establishment worthies.
At the very least we should ensure that state surveillance is confined to targeted individuals identified by intelligence. The outdated Regulation of Investigatory Powers Act urgently requires to be brought up to date. There is also a need for calm consideration of the risks of terrorism attacks; of the effectiveness of the measures taken to prevent them; and of positive initiatives to heal dangerous divisions in our society.
13. Regulate lobbying and party funding.
Unlock Democracy has campaigned vigorously to reform the unregulated and secretive nature of lobbying. The coalition government’s Transparency of Lobbying, Non-part Campaigning and Trade Union Administration Act 2014, colloquially known as the “lobbying act”, set up an inadequate register for lobbyists and at the same time severely restricted the public statements and activities of civil society organisations and charities in election year.
A comprehensive statutory register, open to the public, should replace the current imposter to provide information regularly on the names of lobbyists – whether companies, trade unions, lobbying agencies, law firms, larger charities and civil society organisations – their individual lobbyists and their spend on lobbying. The register should also detail any government body that is being lobbied, a summary of the cause being prosecuted, and the name of the minister or senior civil servant being lobbied.
Political parties are essential to our democracy, giving the public choices of policies and leadership at elections and carrying out the business of government and opposition between them. To fulfil these roles they need funding; but they now increasingly rely on large private donations, raising issues of undue influence and involving demeaning practices and evasion of the rules.
We now risk entering an era in which private and corporate interests, hedge funds and the like will be in a position to “buy” a general election by the sheer weight of their investments in the party of their choice. The system is broken and the secret negotiations between the main parties cannot agree on how to fix it. Meanwhile increased transparency since 2000 has only made public suspicions worse rather than fostering public confidence. The negotiations founder because the parties all fear that the obvious solution – state funding, which is common in west Europe – would be electorally damaging; and because they are intent on gaining competitive advantage.
We propose, first, that it is wrong that the negotiations should be confined to several political parties; and that the reform process should be removed from the cauldron of inter-party decision to a commission on which the parties are in a minority. Secondly, it is important to curb the influence of rich corporations and individuals, and to make the position of all parties more equal and to reduce the cost of elections. Therefore, a donation cap should be set at £1,000 to reduce the impact of big money and means should be found to encourage the parties to seek small donations from the general public. Thirdly, the limits on party spending during election campaigns should be set by the independent Electoral Commission.
The executive and political class will employ all their powers to prevent the popular adoption of a written constitution, the loss of their central authority, and electoral and other reforms that imperil their hegemony.
They have at their disposal not only executive power and the ability to delay and obstruct change, but a considerable capacity for persuasion. Government, especially a Conservative or Conservative-led government, would have most of the press as allies. There would be legal challenges, big business would deride the attempt and economists would rally to pronounce the diktats of neo-liberal orthodoxy.
Any Constitutional Convention would have to establish deep roots in our society to withstand a major counter-revolution by our political class and the kind of delaying strategy with which, for example, the establishment in Iceland took the impetus out of a popular demand for change.
Our political class has had centuries of practice in blocking and blunting reform, muddling on, making concessions to change here and there, but ensuring that change doesn’t subvert their power. It is up to our own organisation and our allies to prepare a modern Constitutional Convention, making full use of social media to reach out into society; to build popular demand for it; and to defend and sustain it.
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