Submissions to the H.of C. PACA on the Constitution Commission.

Submissions in response to PACA Cttee. ‘Call for Evidence’.
Patrick O’Connor Q.C.: 25.10.20.

I am a barrister of 50 years experience, practising from Doughty Street Chambers, London, working mainly in human rights law. I have written on politics and the law, especially on ‘neo-liberalism’ and human rights. ‘Justice’ published my work, ‘The Constitutional Role of the Privy Council and the Prerogative’ in 2009. It is available online at  “https://justice.org.uk/the-constitutional-role-of-the-privy-council-and-the-prerogative/”.

Introduction.
1.The PACA Committee has called for submissions on four questions. I shall insert my submissions within the list below. These are all procedural and preparatory to the establishment of the “Constitution, Democracy and Rights Commission’ which will look at “the broader aspects of our constitution” and “come up with proposals to restore trust in our institutions and in how our democracy operates”.

2.Such a Commission must be welcomed in principle. It may be the first opportunity to consider such fundamental issues since the Labour Government’s Green Paper, Cm. 7170, July 2007, ‘The Governance of Britain.’

3.The contrast between the priorities of the 2007 Green Paper, and those behind the current Commission is telling. In 2007, they were “The proposals published in this Green Paper seek to address two fundamental questions: how should we hold power accountable, and how should we uphold and enhance the rights and responsibilities of the citizen?” The current government seems to be more concerned to protect the exercise of power from legal challenge and accountability.

4.The 2007 Green Paper came to nothing. There have been too many lost opportunities. The PACA Committee should resolve to ensure that the Commission works to a conclusion: which will almost inevitably extend well beyond this Parliament. It is therefore all the more vital that the Commission should be seen to stand above the shorter term vagaries of party politics: and be unimpeachably independent of ideology.

5.I agree with the comments at your first evidence session of Lord Lisvane and Professor Russell about the immensity of the task, and the need for a coherent overview. There has to be a doubt whether this or any foreseeable government would have the resolve to see this process through and introduce real change. By way of example, the political stasis of this and several previous administrations on the ‘social care’ crisis, a compelling but narrower imperative, is not an encouraging record.

PACA questions.
1.What form should the Commission take?
a. How should it be composed?

The composition is surely connected to the breadth and diversity of the  ‘remit’. This may therefore become a ‘chicken and egg’ question. The answer to that may be the appointment of a core panel and Chair, with panels of expert advisers on more technical questions as they arise: e.g. of statistics, economics, equality and diversity, history, medicine or social science.

There has to be substantial and proportional membership from women and BAME communities: and reflecting all regions of the country. The sensitivity of the Union with Scotland and Northern Ireland, and doubts over their future, would require representation too. Nominations from the major political parties could be considered, but a scrupulous political balance should be required overall.

The requirement for unimpeachable independence, means that the Chair cannot be compromised by previous partisan positions on the likely issues, as Professor Russell and Lord Lisvane have emphasised. I take for example Lord Sumption, because his appointment has been rumoured, but it applies to any such politically controversial figure. Sumption worked as a political adviser to Keith Joseph. He wrote a book (nominally with Joseph) called ‘Equality’, [London, John Murray, 1979] which asserted that the higher the level of ‘inequality’ in a society, the more ‘free’ it must be. He proposed removing democratic control over taxation, and leaving it in the hands of the wealthy, for them to guage their own need for social stability. He wrote for example:  “It is more comforting to think that one is poor because one belongs to the class whose lot is to be poor.” He has never publicly explained or distanced himself from these beliefs.

There is, for example, a gathering understanding that the increased level of inequality in society today, has alienated communities, and contributed to the diminishing trust in our institutions and democracy, which is at the heart of this Commission’s remit: see the Times of 20.10.20., and the research of the Centre for the Future of Democracy at Cambridge University. Any person who has celebrated ‘inequality’ will scarcely bring an independent mind to the issue.


b. Should the Commission engage the public, and if so how?

Yes: by inviting written submissions, but more importantly, by convening public hearings at venues around the country, listening to representatives of those ‘left behind’ communities, which all parties now profess to care for. These need not necessarily be local politicians, but local religious and informal community leaders. I endorse the parallel between ‘citizen’s assemblies’ and the workings of juries in criminal trials, drawn by the evidence of Dr. Blick and Graham Allen: with recognition of the difficulties over selection of the participants.  

c. How should the Commission proceed in its work? Over what timescale?
The Commission should start by choosing priority issues and insist upon that being their own independent choice. Those choices will need to be informed by the detail of the posited problem: namely loss of  “trust in our institutions and in how our democracy operates.”  Perhaps therefore the very first task would be to understand this alleged problem, in terms of generations, gender, regions, material wealth or deprivation, ethnicity etc. There may well be very different contributory factors, which would require different remedies. This may well have to be the first priority for research even before the Commission starts its other work.
As the answers to your questions 33 and 45 by Prof. Russell and Dr. Blick explained, there has to be some doubt around the ‘loss of trust’ posited by the Conservative Party manifesto and behind the Commission. This assertion is not self- evident. The conduct of government during the Brexit crisis, rubbishing Parliament, MPs and the Courts stoked dangerous mistrust. It is an historical trope, for an artificial crisis to be created as part of an agenda for radical change, in an authoritarian direction.
There is an influential strand within recent Conservative party thinking which does not respect democracy. F.A. Hayek cast the greatest influence upon the neo- liberalism of Margaret Thatcher and Keith Joseph. At the time of his supportive visits to the Chilean and Argentinian military regimes, and his public defence of South African apartheid, he wrote to the Times on 11.7.78:  “If Mrs. Thatcher said that free choice is to be exercised more in the market place than in the ballot box, she has merely uttered the truism that the first is indispensable for individual freedom, while the second is not.” Having thus discounted the need for democracy, Hayek wrote, conveniently and without any evidence, of “general disillusionment about the consequences of democracy.” [‘Law, Legislation and Liberty’, Vol. 3, p. 1- 2.] This was most probably entirely imagined.

Even if confined to those topics exemplified in your ‘call for evidence’, this Commission is an immense undertaking. The timescale will be several years. Any ‘rush to judgment’ would be symptomatic of a pre-conceived approach to the issues.  To take one example, it would be difficult to separate out “the functioning of the Royal Prerogative”, from an examination of the role of the Privy Council as an institution. I have written about both for ‘Justice’, and they are closely intertwined: see https://justice.org.uk/the-constitutional-role-of-the-privy-council-and-the-prerogative/.

The Commission should report in subject blocks: and this exemplifies such a potential block of issues.

2. What should be the main purpose and output of the commission?
a. How should the Commission report its findings?

To understand and give expression to the frustration of citizens: to engage them and reach conclusions which give them hope for a more understanding and inclusive society.

To help our society to overcome suspicion, hatred, ignorance and division: which this can only be achieved as part of a wider programme to do so.

Reporting on an issue by issue basis like the IILCSA Inquiry into child sexual abuse.

3. Given the remit of the Commission to look at “the broader aspects of our constitution” and “come up with proposals to restore trust in our institutions and in how our democracy operates” are there issues not on the Government’s list that need to be examined?

Whether we should have a written constitution.

Proportional representation.

Scottish, Welsh and regional devolution.

The governance of Northern Ireland.

The funding of local government: the valuation bands of properties, [unchanged since 1993] and restrictions on the level of council tax.

The extent and impact of the privatisation of state functions.

The regional dispersal of government ministries and agencies: and national institutions.

The nature and working of constitutional ‘conventions’.

Reinforcing constitutional protection of the ‘rule of law’.

Legal aid, court fees and access to justice.

4. What areas should be a priority for the Commission and why?

The Commission will have to decide this, in light of research and insight into the causes of any relevant ‘loss of confidence’ and the particular fractions of society involved.





PATRICK O’CONNOR Q.C.

DOUGHTY STREET CHAMBERS.