If like me you have over the last few years picked up something of an addiction to constitutional drama, the outrage which has greeted Boris Johnson’s intentions to reform the Supreme Court is quite entertaining.
The online public law establishment is trying to run two hopelessly contradictory arguments against proposals to re-establish something resembling the old Judicial Committee of the House of Lords.
On the one hand, they argue that it is utterly pointless. After all, the de jure remit of the new Supreme Court didn’t change. It is ‘the same people, upholding the same law, in a new building’. Yet rather than following that logic and treating this dispute as a low-stakes contest over aesthetics, they are simultaneously getting rather worked up at the prospect of change.
For some, this might be because they think that aesthetics are actually extremely important. Remember Lady Hale’s blunt admission that the case for abolishing the Law Lords was that: “it was recognised that, however well this arrangement had worked in practice, it could not be justified in principle.” Others, especially the sort of reformer who believes in the importance of a ‘modern’ House of Commons, may quietly recognise that the setting in which institutions operate will, over time, affect how they operate.
Yet the Government risks making a similar mistake if it allows itself to believe that the solution to the the undesired evolution of the Supreme Court lies entirely in the form of the court itself.
Apologists for the judiciary are not wrong to point out that over the past few decades judges have been, at least in part, responding to signals sent out by parliamentarians. Tony Blair’s governments, in particular, changed the way that Parliament legislated in a way that made a larger role for the courts almost inevitable.
Firstly, and most obviously, they did this by introducing legislation such as the Human Rights Act and the Equality Act, which set into law broad principles which it is then left to the courts to apply in practice. Recent rows over whether veganism, or belief in biological essentialism when it comes to questions of sex and gender, highlight the sort of essentially philosophical questions coming before today’s judges.
But it was also Blair who oversaw swingeing reforms to the way the Commons operated, particularly by substantially cutting the sitting hours and introducing mechanisms such as programme motions which curtail debate. Anybody wondering what happened to the golden age of parliamentary oration need only tune in to a high-profile debate and see the Speaker cutting contribution times to two minutes to see what happened to it.
For all the talk of making Parliament ‘family friendly’, lots of MPs voted for such changes quite clear-eyed about it being a straightforward hours cut – as Chris Mullin, a Labour MP who fought the rearguard against them, noted in his diaries at the time.
Such a diminution of capacity was less noticeable during Blair’s time because it sat alongside New Labour’s programme to reduce Parliament’s responsibilities, passing powers up to Brussels, down to the devolved legislatures, and out to quangos and the courts. To borrow Peter Franklin’s analogy, all these efforts were in aid of baking the New Labour settlement into the constitution at a level insulated from democratic oversight and contradiction.
For so long as they remain vested with these powers the form of these institutions is not unimportant. But the Prime Minister must grasp that all of them are downstream of Parliament, and the solution to problems with each cannot succeed without compassing changes in how the legislature operates, especially if the goal is to re-establish parliamentary and democratic control.
For the judiciary, for example, any truly effective solution almost certainly involves more detailed and pro-active lawmaking in areas where judicial overreach is a concern. In turn, creating the capacity for that may involve taking steps to reverse the truncation of sitting hours and attendant impediments to proper scrutiny to such a volume of legislation.
The Hale quote above really cuts to the heart of what is, at least on one level, a battle between what is effective and what is ‘modern’. But if a restoration of Parliament’s traditional role is possible, Parliament must be prepared to step back into it. Are MPs prepared to vote themselves more work and longer hours?