Rule Britannia

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:

  1. The
    principle that the executive should be subject to the rule of law, and
    accountable to Parliament and the people;
  2. The
    principle that there should be basic rights for all, protected from government
    intrusion and erosion and limited only by due legal process; and
  3. 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 

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:-

  • introduce for the first time popular democracy in this country; 
  • take this democracy into the digital era;
  • establish the rule of law over the executive and Parliament; 
  • remove executive dominion in Parliament; 
  • introduce elections by a proportional electoral system; 
  • devolve powers from central government to national,  regional and local authorities; 
  • replace the House of Lords with an elected Senate;
  • restore and protect the impartial role of the civil service;
  • regulate and diminish the role of money in British politics;
  • bring the secret state under independent legal control;
  • define and protect the boundaries of the public realm; and 
  • entrench human rights and legal access to them.
  • 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. 

    Old Corruption

    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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