Lawyers can spearhead a serious debate about the future of our constitution.
All lawyers have studied some constitutional law – albeit that, as in my case, it was sometimes pretty rudimentary. A quick tour around parliamentary sovereignty, conventions and the process of legislation and we were done. That was solicitors’ training in the early 1970s.
Lawyers’ constitutional education has since improved – though not by much – but has remained pretty minimal in schools and for members of the public. Well, people are going to have to learn fast. The constitution is back as a hot political issue. The trouble is that the political process is ill-suited to deal with it. That may give lawyers a role to play.
The immediate cause of attention is, of course, the aftermath of the Scottish referendum. However, this interlocks with two other issues to form a ‘perfect storm’: membership of the EU and the potential departure of the UK from the European Convention on Human Rights. The immediate signs are not good for serious debate.
Take the language in which it is being framed. ‘A British Bill of Rights’ alliterates but makes little sense. Scotland is happy with the convention and, in any event, the Human Rights Act is heavily woven into the devolution settlement. Northern Ireland was promised a fuller bill of rights in the Good Friday Agreement ‘supplementary to’ the convention: you can stall on this promise but you undo it at your peril.
No one has asked Wales if it has a view. So, this looks more like an English Bill of Rights. Such a bill would, at least, dovetail with ‘English votes for English laws’ – a rallying cry that might deal with the ‘West Lothian’ issue of Scottish votes on English laws, but singularly ignores the Welsh. It also passes over the hard question of which matters relate to the UK and how they might be separated from genuinely English or Welsh ones (a difficult issue which, in relation to Scotland, formed one of Alex Salmond’s best points in arguing for full independence in his second debate with Alistair Darling).
Only two politicians seem to be seriously engaging with the issues. Dominic Grieve slaughtered his party’s proposals for human rights, pointing to ‘howlers’ in presentation and a ‘lack of maturity’ in substance. In anticipation of his dissent, Grieve was, of course, replaced by a successor who has yet to obtain – or merit – much political recognition.
Grieve is a bit of an old-fashioned creation; a one-time attorney general with a genuine reputation as both a lawyer and a politician. When he alleges legal incoherence, you need to listen. The other is the surprise of the Scottish referendum: Gordon Brown. His bruising last-minute speech helped to do for the Scottish nationalists. He is, of course, one of the great enigmas of British politics. On the economy, he flipped from prudence to profligacy. On politics, he proved unable to make up his mind.
However, he has been consistent in his writings and speeches on the need for constitutional reform.
Characteristically, Brown was ridiculed in 2007 for the thoughtful proposals in his Governance of Britain green paper and never pursued the package as a whole. The Liberal Democrats were, similarly, objects of derision for their attempts to change the voting system.
Until the Scots showed the heat, excitement and dynamism that could come from engagement in constitutional reform, no one in England and Wales was much interested. And, all the signs are that politicians have just not learned the lessons of a Scottish campaign which was (depending on your point of view) so narrowly won or lost.
Discussion on constitutional matters has to be serious. It must engage people and encompass politics, identity and economics. If it has to be done, it has to be done well. The government took a day to admit that its proposals for human rights involve breach of article 46 of the convention, which gives authority to its court to make binding judgments on member states. Our departure could trip a complete meltdown of a system that has tenuously kept European governments in some sort of line on civil liberties since the second world war.
In addition, a goodbye to the convention is realistically a goodbye to membership of the EU. You cannot deal with our domestic constitution without articulating a broader vision of the UK in a globalising economy and an internationalising world. One lesson from Scotland’s referendum is that ultimately voters ‘get’ that.
Politicians find it understandably hard to deal with long-term issues like the constitution. But, that gives a real role here to the legal profession – both individually as citizens and through their representative bodies. We need neither Cameron’s promise of headlong legislation nor Miliband’s bloodless constitutional convention. We need widespread serious debate. Who better than lawyers, the Law Society and Bar Council to provide some leadership?
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice