- Alan Smith considers some constitutional reforms
In the good old days, that is up to 2005, the Lord Chancellor was the true embodiment of the constitution. The most senior lawyer in the land, presiding over the judicial system, he was a member of the Cabinet and thus a senior member of the Government, and, by presiding over the House of Lords, he held a key position in Parliament. In his person, he was able to keep these three elements of the state in a satisfactory equilibrium. It may be that the resolution of the constitutional problems we are experiencing requires the proper restoration of the post of Lord Chancellor and not merely the use of that title as a picturesque term for the Secretary of State for Justice: when one’s country has a Ministry of Justice, a term used by totalitarian regimes, one should start to worry about one’s freedom.
State law is the means by which malefactors are prevented from threatening the freedom of the people. Starting from common law derived from natural law and developed by statute law enacted with the consent of the people through their representatives in Parliament, it provides the authority on which liberty is maintained. One of the most important characteristics of the law is that it should be understood by the man on the Clapham omnibus. In certain specialist areas such as starting a business or seeking to drive a car one would be wise to take note of the specialist advice available but, in the normal course of life, one could reasonably expect to know what the law was and whether one was in danger of breaking it.
On the question of the Government’s attempt to prorogue Parliament, I thought that the Prime Minster was being politically unwise in appearing to do something sneaky, rather like exploiting a little-known clause in the laws of cricket. However, I do not think that he deliberately set out to break the law. The judgment in his favour by the High Court, which included the Lord Chief Justice and the Master of the Rolls, suggested that, as far as he could reasonably tell, he was acting within the law.
The unanimous judgment of the Supreme Court condemning the attempt to prorogue Parliament for a period gives rise to a number of concerns that courts are beginning to usurp the rightful powers of the Government to change laws with the consent of Parliament. A major one is the question whether the members of the Supreme Court were discovering what the law was or deciding what the law ought to be.
The passing of the ‘Benn Act,’ ordering the Prime Minister to seek an extension of the UK’s membership of the EU if no agreement has been agreed with the EU over the terms of Brexit, is a usurpation of the proper powers of the Government. When a Government Bill becomes an Act of Parliament the responsibility for it falls on the Government, as does that for a Private Member’s Bill for which the Government has provided parliamentary time. However, the dominant forces in the present House of Commons seem to be seeking, in Kipling’s words, ‘Power without responsibility—the prerogative of the harlot throughout the ages.’ Using the same powers, Parliament could, for example, direct the Prime Minister to declare war on Ruritania. Unlikely, I know, but it highlights the flaw in the process.
There is a need to restructure the balance of power between the Government and Parliament. First the Fixed-term Parliaments Act should be repealed: that goes without saying. Then I suggest that the following process should be implemented.
If a Government has lost a working majority in the House of Commons it should seek a motion of confidence. If it loses that motion it may propose a motion that Parliament should be dissolved, a motion that would be effective with a simple majority. If it loses a motion for dissolution or if it chooses not to put one, MPs should have the opportunity to move a ‘motion of conditional confidence’ stating that a named MP such as the Leader of the Opposition should be asked to form a Government. If a motion of conditional confidence is passed, the Prime Minister should resign, recommending to the Monarch that the named MP should be asked to form a Government.
This process would protect the Monarch against charges of bias if a Prime Minister were refused a dissolution, only for his successor to be granted one immediately. There is the danger of an endless cycle of rejected motions for dissolution and rejected motions of conditional confidence but, eventually, the Commons would realize the need to refresh itself through a general election.