John Jackson (London, Mishcon de Reya): In his post yesterday, Stuart Weir referred to the ruling classes ‘self- defeating insistence on the great merit of a flexible constitution’. That insistence is also self-serving and depends on a strange and disingenuous circular argument.
By definition a flexible constitution contains uncertainties and is not definitively written down. But, say its advocates, we also embrace the rule of law and that does require certainty. And, given that we have a flexible constitution, that certainty can only be provided if somebody has the last word. That is the justification of the concept of parliamentary sovereignty encapsulated in the phrase ‘The Crown in Parliament can do anything it wishes except bind its successors’. Parliament – these days a Parliament which is largely the captive of government – has the last word and can insist on what it wants.
This concept of sovereignty gives those with their hands on the well-worn levers of power a dangerously dominant position in our society They use it and fight tooth and nail to preserve it! That is why our Human Rights Act denies our courts the right to strike down legislation infringing the rights protected by the Act. They may only rule on compatibility and both government and parliament are free to ignore the ruling if they wish. All done in the interests of parliamentary sovereignty, the allegedly necessary rock on which our ‘flexible’ constitution rests.
This is the biggest rock on which those who would like the position opened to discussion leading to a new democratically created constitutional settlement, founder.
It is weird that the matter has never been exposed to wide public discussion. We, the people, have never been asked. What do you suppose the ordinary person would say if asked ‘Do you realise that Parliament can do anything it likes?’ Is it not likely that they would reply ‘Anything? Surely there are some limits? Some fundamentals it cannot touch?’ Ask members of Stuart’s ruling classes what they think the answer would be. Ask them why the question is not put.
So far, those who have foundered on that rock have been reasonable and reasoning in their approach. To the extent they have campaigned, they have been very proper and civilised. That is how it should be but, sadly, it rarely shifts the hens that are sitting on the eggs. I wonder what could happen as patience runs out and people, particularly young people, realise what has happened, and is still happening, to all of us.
