The Governance of Britain Green Paper shows a genuinely refreshing act of leadership from the new Prime Minister, writes Roger Smith


You have to admit that Gordon Brown has played a blinder. Fair enough, he has had good luck. You could not plan for David Cameron getting marooned in Rwanda while his constituents got flooded in Witney. On the other hand, the Prime Minister’s launch of a Green Paper on The Governance of Britain was a genuinely refreshing act of leadership.



For a start, the paper avoids two of the usual faults of such things: mind-numbing recitals of the great achievements of the government to date and the repackaging of previous announcements as if they were new. The paper is straightforward, thoughtful, available on the net and worthy of being read. Since it relates to public and constitutional law, most solicitors will have a head start over the general public in understanding its implications. The paper sets out its wares under four themes: limiting the powers of the executive; making the executive more accountable; re-invigorating democracy; and the citizen and the state. Another way of understanding its provisions is, however, to divide its proposals slightly differently: those on which legislation is imminent and longer-term constitutional change.



Among the proposals on which legislation is likely is the surprise plum in the pudding – the repeal of the restrictions on protest within one kilometre of Parliament. These were widely seen as a ham-fisted attempt to get rid of veteran protestor Brian Haw, camped on the square outside Parliament. Justice, among other human rights organisations, lobbied hard against these provisions before they were passed. Subsequent history proves their inanity. Mark Barrett was fined £500 for an unauthorised anti-war tea party. Maya Evans and Neil Goodwin received conditional discharges: without authority, she read out the names of 97 war dead and he stood in a Charlie Chaplin suit holding a poster saying ‘not allowed’. Comedian Mark Thomas, to his enormous credit, tormented Charing Cross police station and a hapless PC by seeking the appropriate permission for 21 separate protests within five and a quarter hours. And Brian Haw is still to be seen by anyone with the time to visit Parliament Square – a beneficiary of the rule against retrospective crimes and a visible warning against knee-jerk legislation.



It would be churlish to note that Gordon Brown and his cabinet voted for the Serious Organised Crime and Police Act in its entirety. It would be churlish too to note that much of the first tranche of legislation promised by the Green Paper is actually pretty uncontroversial. Parliament has, for example, established the precedent of voting for war. A Civil Service Act was entirely foreseeable. What is welcome though is the consultation on the role of the Attorney-General, which has now been released. It stops short of recommending abolition of the office, but it does at least give a reasonable four months for responses.



The really interesting bit of the report for lawyers lies in its last ten pages. Cutting to the chase (and avoiding diversions such as more union flags on government buildings and more citizenship education for schoolchildren), it defends the Human Rights Act, proposes a British Bill of Rights and Duties, and ends with speculation about reversing the tradition of centuries in accepting that we might ‘in time’ join most of the rest of the world in having ‘a written constitution’. This has got the constitutional anoraks buzzing and on blogs like that run by Open Democracy (http://ourkingdom.opendemocracy.net/) and progressive-leaning magazines like Prospect, there is much excitement. Professor Robert Hazell of University College London’s Constitution Unit counsels caution: a written constitution is big undertaking. Oxford’s Professor David Marquand wants to go for it.



The great advantage of accepting the idea of a written constitution is that everything comes into play. Gordon Brown is proposing to limit elements of the exercise of the royal prerogative, but shadowy constitutional bodies like the Privy Council with somewhat obscure but potentially very tangible powers will remain largely unaffected by too cursory an approach.



What is more, the idea of a Bill of Rights unavoidably raises major constitutional issues beyond the complex issues of what should actually be in it. How do you prevent Parliament simply over-riding its provisions any time it wants to? How do you give whatever provisions it has any teeth? Exactly what power should judges have? Finally, is any document to which you give the name ‘Bill of Rights’ any different from run-of-the-mill legislation in that it really ought to attract a degree of political and public consensus? If so, how can you get it? Solve these issues and you have come pretty close to writing a constitution.



Thus, the Green Paper raises some complex constitutional issues, bypasses some difficult history and announces the odd quick win. As a political package, it is clever, with a subtext that suggests ‘new constitution, new regime’. However, it explicitly raises the major constitutional defect of the UK: that the government has too much power. The banning of protests near Parliament was a prime example of hubris – with Mark Thomas in action, the government was literally becoming a laughing stock. Let us hope that the Prime Minister can maintain his newly projected sense of humility and thoughtfulness long enough to see through to fruition the promise of this paper.



Roger Smith is the director of Justice