Alongside the clamour over Brexit we need a calmer discussion on reforming our constitution.
I was going to write about the House of Commons Justice Committee’s report on court fees. This, you may remember, was pretty damning. The committee was at its strongest in relation to fees for employment tribunals: ‘We recommend that … [these] should be substantially reduced’.
But the legal and political consequences of the referendum vote make that topic look too parochial. Lawyers, like everyone else, are likely to have only one issue on their minds: Brexit. Happily, there is a link. The reduction of access to the courts provides a specific example of a more general issue raised by Brexit: the unwritten form and the actual content of our constitution need substantial reform.
I sat out the concern of the late 1980s and 1990s with constitutional reform. I abstained from joining Charter 88, though many of my friends did. I argued that it had taken us centuries of struggle to establish a parliamentary democracy on the basis of universal suffrage. Anyone wanting legislative change should work through the democratic political system: calling for constitutional reform was just a way of seeking to avoid it. However, I now think I was wrong.
Current constitutional arrangements depend too much on consensus and the absence of challenge. It turns out that an unwritten constitution is about as useful as an unwritten contract. Recollections differ about its terms and interpretations vary as to what was agreed. And anyway, oral contracts – as with oral constitutions – are particularly susceptible to one-sided amendment.
Leave aside whether you favoured Brexit or Remain, or if you are for or against Scottish independence – the inadequacy of our constitutional arrangements has been laid bare. Read the devolution legislation and you realise that it has all been cobbled together on a wing and a prayer. We have a second parliamentary chamber full of the worthy and unelected whose power – and therefore role – has largely been drained away by the widespread and deliberate use of secondary legislation.
We have no arrangements other than a minority block of members in the House of Commons to represent the devolved jurisdictions. We are a representative democracy, but allow referendums to bypass our representatives at the whim of the majority party in the House of Commons. We have no rules about the running of such referendums in relation to constitutional matters which elsewhere require special majorities of both votes and voters. The nature of our rights as citizens is politically contested and attempts are likely to follow Brexit to remove us from the edifice of the European Convention on Human Rights.
The above are just some of the overtly constitutional issues that arise, leaving aside those that are constitutional but appear political. The looming issue behind the referendum was really the impact of globalisation on those who see themselves, rightly or wrongly, as excluded from its benefits. That is an international phenomenon: it accounts for some of the appeal both of Bernie Sanders and Donald Trump. We need constitutional arrangements that reflect our measured judgement about our response.
Do we see the nation state as a bulwark against global free movement of people, services and products, or not? If we do, it may need more powers. Or do we see the nation state as facilitating these trends and are we, therefore, disposed to minimise barriers to their development and supportive of international arrangements like the proposed trade agreement with the US which overrides national jurisdiction over trade disputes? These are questions that are constitutional to their core.
This is manifestly not the moment when a call for calm reflection on long-term constitutional considerations has much chance of traction. We are in for a period of rollercoaster crises, the import and result of which are uncertain to all the major protagonists. The priority when the Titanic sinks is to get the women and children into the lifeboats. Concern about the quality of ships’ steel, navigation and internal construction can wait.
The difficulty is that it is only at moments of crisis that anyone is interested in constitutions. It took a war of independence to get the Americans going. It took a revolution for the French. It is entirely possible that this referendum is the iceberg that has holed the great British ship of state – just as certainly as the Titanic.
The nightmare scenario is not that implausible: Scotland goes, Northern Ireland dithers, the Welsh decide to follow – the UK is probably doomed to become a diminished England surrounded by hard borders to keep out marauding groups of job-seeking Poles. Alongside the unavoidable clamour on Europe we need a calmer discussion of how our constitution needs reform to better accommodate democracy, Scotland and the rights of citizens. Oh – and access to the courts.
A diminished state we may well be, but we might as well have an improved constitution out of all this.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice