The Social Context of the Law: Britain’s Unwritten Constitution

well ladies and gentlemen we don't have as long as we probably all would want so I think we should get started now I'm very pleased to be able to welcome you all and a very large and extremely distinguished looking audience you are which is slightly nerve-racking anyway to welcome you to this year's Inner Temple social context of law discussion and the as you probably know the series was created by the Inner Temple in 2015 so this is I think the fifth in the series and just a tiny bit of background about our subject tonight as we all know especially in the current climate the law and the courts are often required to address very difficult questions on which there are conflicting but possibly equally plausible views and the purpose of this series from its inception has been to try to enhance an understanding of the law and its social importance when that sort of question arises and as you all know our topic tonight is Britain's unwritten Constitution now clearly this country has been going through political turmoil as a result of different opinions over brexit now we do not propose to go into the details of brexit this evening relief I think for some of us our discussions are going to focus instead on how well our constitutional rules are operating given the politics whether any of the rules should be changed or reformed and if so how not necessarily going into details of exactly what reforms someone thinks might be a good idea but how can it be done if it's going to be done now you all now I hardly need to introduce our speakers but perhaps a couple of words would be in place professor Vernon Bogdan all on my left is research professor at the Institute for contemporary British history at King's College London and he's also professor of politics at the new College of the humanities he's published over the years extensively on the British constitution including most recently his book beyond brexit towards a British Constitution with the capital C in the Constitution Lord Sam shell on my right retired a year ago as a justice of the UK Supreme Court he delivered this year's wreath lectures and they're now published as under the title trials of the state law and the decline of politics and he's an author and medieval historian working I think on the fifth volume of his history of the Hundred Years War now just to explain the the program this evening each of our speakers is going to present his view on this topic for about ten minutes I shall then make a few minute take a few minutes with some comments about those issues our two speakers will then each have a further ten minutes in which they may respond to each other perhaps go into other issues and after that there will be a question and answer session in which members of the audience may ask questions and I shall probably say what I'm about to say again later but it will be very helpful if people who do ask questions ask very short questions so that there's plenty of time for lots of people to answer questions and for our speakers to respond and afterwards there will be a drinks reception in the round of the church just behind us so I now invite professor Vernon Bogdan all to be our first speaker Vernon over to you well thank you very much and I have to begin with - apologies first that I'm recovering from a cold and I hope it doesn't show too greatly but secondly I'm probably one of the few people in this room who has no legal qualification so I hope I can be forgiven for that I'd also like to begin by thanking Jonathon sumption both for delivering the lectures and for as it were exposing himself to discussion of it and I'd like to concentrate on two points in the lectures first the issue of the referendum whether it has a place in our Constitution and secondly the question of whether we should have a Constitution at all now Jonathan I think is unhappy about the referendum and certainly about the 2016 one more unhappy in the lectures perhaps than in the printed version in the book and in an intuitive prospect he said it was a mistake to use a pleb asset in a parliamentary system but almost every democracy employs the referendum there are only four major stable democracies that have never used them India a large federal system Israel though there's provision for them in a basic law Japan though one is proposed for 2020 and the United States so of course there are many referendums at state level but there was a lot of hostility to the first employment of the referendum in Britain which was in 1975 on the European issue and year before mr. John ray the ex-president of the European Commission said that a referendum on this matter consists of consulting people who don't know the problems instead of consulting people who know them I would deplore a situation in which the policy of this great country should be left to housewives it should be decided instead by trained and informed people now there are many birkin objections to the referendum which Jonathan employs but Burke of course was writing before the era of party whips and for this reason ledges scrutiny in the Commons does not always result in major alterations to government policy and substantive Lords amendments are not often accepted by the government and Jonathan also says that Parliament is an arena which can secure compromise and said that he was opposed to the 2016 referendum because there were too many answers to the question posed other than yes no but whether or not we remain in the European Union is a binary decision we are either in or out we cannot be qualified members any more than we can be qualified virgins had the brexit decision been left to Parliament there would have to be a final vote on whether MPs wish to remain or leave now vote in Parliament follows the debate and scrutiny a referendum widens the debate and widens the scrutiny so that it includes not just political professionals but the people as a whole who become in effect a third chamber of parliament on this issue the probability is that MPs would have voted remain the majority are remain errs it appears from the referendum the majority of the people are not so if you oppose the referendum you suggest that Britain should remain in the European Union even though the majority of voters do not so wish to remain the referendum was held precisely because the democratic system was not working in the 1970 election the first before we entered the European community all three parties were in favour of joining so there was no way in which a Euroskeptic voter could make her feelings felt in 2015 there was one party which was opposed to our membership and that was you kept but many people wouldn't wish to throw away their vote in our first-past-the-post system you kept one an eighth of the vote but only one seat and some decisions it may be held are so fundamental they cannot be given legitimacy by Parliament alone they also need the consent of the people in particular a decision to transfer the ledges of parliament either upwards or downwards because we give our MPs a mandate to legislate but not to transfer those powers away that can only be given but through a specific mandate which is a referendum this is a principle in my opinion of liberal political philosophy john locke says in his second features of government that legislative cannot transfer the making laws to any other hands for it being but a delegated power from the people they who have it cannot pass it to others and it seems to me surprising that Johnathan's are posted because in his fourth lecture he says that rightly in my view the essence of democracy's participation and heed applause the decline in public engagement but the referendum led to an increase in public engagement a 72% turn out the largest in any national election since 1992 a few years ago we were worried about political apathy few people took much interested in politics that worry seems to have disappeared perhaps we should be careful what we wish for in my view the high turnout in the referendum was a striking illustration of Democratic commitment on the part of the least fortunate in British society the greatest threat to democracy in my view is an inert electorate one that has ceased to think about public issues John Stuart Mill wrote as we do not learn to read or write to ride or swim by being merely told how to do it but by doing it so also we learn about democracy by actually practicing it and therefore it seems to me the arguments against referendums are also in part of arguments against democracy I now want to turn to the question of whether we could have egg you should have a constitution and I think that question is wrongly posed the question is not why we should have one but what is special about Britain as a democracy that we shouldn't there are only two other democracies which don't have one New Zealand with a population of five million are half the size of Greater London a broadly homogenous and consensual Society who is we are multinational multicultural multi-denominational a society in which as jonathan acknowledges consensus and conventions are breaking down Israel the other democracy is moving towards a constitution through basic laws now of course our Constitution cannot prevent a determined dictator cannot to Hitler it's a fallacy from that - as you may cannot secure some protection we all lock our doors though they won't be protection against very determined burglars Hitler's of crimes it were we still protect ourselves through an insurance policy and this seems to me particularly important in the light of brexit which removes us from the protection of the EU Charter of Fundamental Rights which enabled judges to supply statutes or parts of statutes and friends against fundamental rights and returns us to the unprotected Constitution that we had before 1973 now the other 27 member states of the European Union will of course continue to be bound by the Charter so I conclude with a question our our MPs so much more sensitive to human rights than the legislators of the other 27 member states that they should be entrusted with this important power of protecting our rights and the answer to this question I leave to the audience and thank you very much indeed now I'm going to deal with Vernon Vernon's points in the reverse order he asks why should we not have a written constitution when every other country in the world or almost every other country does the short answer to that is that our history is different from that of almost every other country in the world the godfathers of written constitutions are war revolution invasion and decolonization with the exception of the last these are all serious misfortunes for any society and we have been fortunate enough not to suffer from any of them it seems to me that the idea that one should so to speak demolish what we already have and reconstruct it from from a square one is unwise to put it mildly and we have a large accretion of practices rules which do amount to a constitution they are not codified but they are intelligible and they are all in one way or another emanations of three basic constitutional principles on which the British state has been founded for a very long time one parliament is the supreme legislative authority two ministers of the crown are Unser aboard to Parliament for that exercise of executive power and three an independent judiciary interprets and applies the law including the law of the constitution now I think that those are all sound principles and it does not seem to me that experience suggests that a written constitution or a codified Constitution is required either to embody those principles or to set out more detailed rules that follow from them any constitutional rule can be created amended or abrogated in this country by ordinary parliamentary legislation as has happened for example with devolution or changes to the rules for dissolving Parliament there are only two respects in which codifying our constitutional rules would make any serious difference one is that any written constitution worthy of the name would serve as the supreme law of the land and would entrench the rules so that they could only be altered by some special procedure such as a supermajority or a referendum and the other is that by formalizing the rules it would expand the role of the judiciary as Alexis Tocqueville said about the United States Constitution it means that every constitutional question and most political questions are ultimately judicial questions would that be an our interest I doubt it the classic defense of our existing constitutional arrangements is as strong today as it ever has been they enable constitutional change to occur without any formal process of amendment which means that it can adopt you can adapt to fundamental changes in our values and in our society by a process of evolution and without violence just look at the changes which our Constitution has weathered over the three centuries in which it has had the same basic constitutional framework the demise of the monarchy the onset of industrialization the arrival of mass democracy two world wars the acquisition of loss of a worldwide Empire devolution to Scotland Wales and Northern Ireland joining and now leaving the EU we have weathered all of those fundamental changes in our national arrangements with substantially the same basic constitutional framework and that has only been possible because it is informal and uncodified what other states with the arguable exception of the United States can say as much France is on its fifth Republic since the eighteen end of the 18th century Italy as on its a fourth Constitution since 1848 and each of these new constitutions has been associated with violence and disruption revolution or war let's look for a moment at the arguable exception the United States what the United States experience illustrates is that arisen and lower based Constitution is a tremendous agent of conservatism and immobility in citizens united the Supreme Court of the United States decided that all attempts to limit spending on election campaigns by corporations were unconstitutional because that is now a rule of the US Constitution it cannot be changed until the end of time unless the Supreme Court changes its mind or a constitutional amendment is passed by a two-thirds majority of each house of Congress and approved by three-quarters of the state legislatures that is not only really rigid but it hands a blocking path to powerful vested interests a problem which can be seen perhaps at its most extreme in the successive unsuccessful attempts to introduce gun control in the United States the US Constitution has served the United States well over a long period principally because of the singular economic and social good fortune of the United States which has made it unnecessary for them to contemplate its defects with any care but I very much doubt whether it will whether well in an age of relative decline which I believe that the United States is likely to experience over the next century as we have done over the last century take another example Spain has a constitution which codifies the relations between the state and its regions this has made it very difficult to compromise with Catalan nationalists in the way that we have compromised in this country with Scottish nationalists the result has been violence discord and the jailing of a large number of Catalan nationalists will take an example closer to home our one attempt to entrench a constitutional provision is the fixed term Parliament's at a piece of legislation which is perfectly sensible in itself but did not cater for the particular crisis that we are now going through it took a one-line act passed by a simple majority to get us out of the parliamentary impasse that it created imagine the mess that we would now be in if that act had been written into a codified Constitution as it doubtless would have been if such a constitution had been drafted in 2011 now turning to the referendum which is a particular aspect of the problem it seems to me that the problem about the referendum has to be looked at in the light of a larger picture of the way that parliamentary parties work politics is a marketplace over the medium to long term parties tends to adapt their policy offerings to what they believe the public will support it is absolutely true that until relatively recently all the major parties in the House of Commons were in favor of membership of the EU but I have absolutely no doubt that in the long term the parties would have adapted their offering they would have become more skeptical the conservative party would probably have become a brexit party the effect of the referendum has been to accelerate that process resulting in very considerable political and economic disruption now referenda have more than once been described as instruments of deferent despotism and division and the truth of that adage seems to me to have been rather strikingly illustrated by the last three years of this country's history the basic objection to a referendum is that it is a device for circumventing the political process now the political process does not always work as it should and there are other reasons apart from the referendum why it is not functioning very well at the moment but it is at least potentially a way of finessing divisive issues so as to produce a result that no one perhaps would have chosen as their preferred option but the widest possible range of people can live with the political process is essentially a mechanism for accommodating divisions of interest and opinion in our society so that we can live together it is by far the most effective way in my view much more effective the law of avoiding so-called majoritarian tyranny now a referendum avoids that kind of accommodation what we have seen over the past three years is persistent attempts to force government to compromise on EU membership given the large and vocal minority that strongly believes in the advantage of EU Parliament has accepted the results of the referendum while seeking compromised solutions such for example as continuing membership of the customs union or a high degree of assimilation to EU norms after we leave the whole process that has as it seems to me divided families and friends it threatens to sunder the regions of the United Kingdom it has Corson's the language of political debate bringing us close to some very ugly totalitarian attitudes it has caused governments to reach for imposed solutions sidelining the principled democratic organ of our state namely Parliament and I think that the suggestion that this is how democracy is supposed to work is frankly absurd now in addition to these general points which apply to referenda as such there are serious problems about this particular referendum it was not a binary question to use Vernon's phrase it was a large number of questions many of which are questions of degree do we want to leave in principle what should our relations be after leaving in principle that's the argument that's the answer the issue that we have essentially been arguing about for the last three years what price is it worth paying for leaving these are of course related questions but the idea that this is a simple yes-or-no issue is to my mind untenable so I adhere to the view which I have expressed more than once that an attempts to introduce direct democracy into a fundamentally parliamentary system is a serious mistake I think it can only work if the referendum is confirmatory of parliamentary legislation as was the case with the Scottish devolution referendum of 79 and the alternative vote a referendum of 2011 other countries which have a referenda generally adopted this system in France and in Switzerland for example which provide for referenda in their constitutions it is absolutely required that there should be precise legislative proposals approved by Parliament before the referendum which will come into effect automatically upon a referendum approving them it seems to me that we have made a serious mistake in choosing this mode of decision-making at all and that we have made a particularly serious mistake in doing it in this particular way thank you thank you thank you very much now there's a we can all see that there are a very wide range of really rather complex issues in what our two speakers have said I just want to add a few comments before we move on for each speaker to respond and say what else they they want to one of the points I think about the referendum that we are now concerned about is that it is taken to imply a move away from representative democracy towards populous democracy and I think a lot needs to be thought about what the relationship between those two very different forms of democracy might be what it is now and what it could be in the future especially if we should actually take steps to achieve a written constitution the next I think both us well certainly Vernon was talking about the fact that written constitutions generally give power to a Supreme Court or a Constitutional Court to if you like enforce the Constitution if either the government or the legislature are acting or legislating in breach of that Constitution and I think the question that one of the many questions that arise then is whether such a power and the exercise of such power by the courts might lead to the politicization of judicial appointments for example by giving the Prime Minister the right the sonne right to propose new appointments or giving the Prime Minister or Parliament a veto over a suggested appointment would that be a good thing what does that what would that tell us about the rule of law and next I think part of what a Vernon is saying although he's not our time obviously to go into it is that we might adopt a codified Constitution that is to say a document which includes the main important rules of our system of government no one thinks that you could put everything in a written document unless you are not bothered about burning trees or all learning forests so the question if we do move into a system where we're talking about adopting a written constitution is who would be forward would would be responsible for putting forward formal proposals for constitutional change we might have a lot of individuals and organizations saying we need this that the other but would some particular body have responsibility for dealing with that and coming up with well-thought-out proposals should a Royal Commission perhaps be appointed to draft proposals for a written constitution if that was to happen how tight should its terms of reference be one can imagine members of the public having quite large shopping lists of things that ought to go into a constitution I mean I shall probably get ticked off for mentioning animal rights for example but animal rights aren't mentioned in many written constitutions but there might be something would it be legitimate for example for a party during an election campaign to publish its proposals for a written constitution in its manifesto and if it wins the election then to say right we've got a mandate we're going ahead with this written constitution or a constitution with these terms in it can we actually envisage a British Parliament agreeing to a new constitution which limits their power or increases the power of government as against the Parliament how could that be resolved a referendum who would be voting to of the referendum so these are some of the issues and there are a lot more but I think having had my chance to say a few words I shall now ask Bernie well thank you on the question of the referendum wherever it's used in almost every country it serves to supplement representative democracy it does not replace it referendums are used infrequently everywhere except in Switzerland and to some extent Australia which are outliers I think Jonathan exaggerated the responsiveness of politicians to public opinion in 1979 three of the four major parties in Wales supported devolution conservative the minority party opposed it it was rejected in a referendum by four to one would it have been right to impose it on the Welsh when isn't wanted in 2004 two of the three major parties in the northeast favored regional devolution let's non led to devolution a big apartment in the Northeast only the minority conserved as opposed it but it was defeated by four to one would it have been right to impose institutions on the northeast which they didn't want in the early years of the 21st century Tony Blair wanted Britain to join the euro but had been induced to say that you couldn't do that until I was a referendum he never put forward the referendum because there wasn't a single opinion poll that showed a majority for the euro so in that sense the referendums a weapon of entrenchment against changes which the public do not want in Northern Ireland I think the referendum has defused extremism by showing it does not have majority support and it did also in France under the gorlice regime by showing that the extremists over Algeria did not have majority support the damage that's been caused since 2016 has not been because of the referendum but because of Parliament the referendum itself was advisory and Parliament would have been within its rights in rejecting the outcome it did not do so in 2017 it passed the notification of withdrawal act by a majority of 384 votes authorizing Theresa May to invoke article 50 but since then it has failed to implement the outcome it has willed an end without winning the mean so I think we don't face as Jonathan the said elsewhere a constitutional crisis or a democratic pricess but a parliamentary crisis because Parliament has been unwilling to implement the outcome of the referendum an outcome I should say that I I put myself opposed I voted on the minority side now on the question of a constitution Jonathan is right that our history is different from that of most our almost every other country almost every other democracy and he gives Burkean arguments really as to why we shouldn't have a constitution but I think Burke is no longer a guide because as I think he acknowledges many of the conventions and the customs have been broken they no longer exist it was said the beginning of the 20th century by one Authority but our system of government is based on tacit understandings but unfortunately the understandings are not always understood and I think this is has become even more so that the consensus we had as late as the 1950s has broken down society then was deferential the country was broadly homogeneous and people broadly did what their betters has told them to do there were strong communal ties at that time there's been a huge movement away from that and a response to real changes which have undermined it in particular development of free markets and globalization which is not compatible with the communal ties of a Burkean philosophy now it's of course true that a Constitution would give judges more influence they would be the ones who would interpret the Constitution that's absolutely right and the question is whether we should be frightened of that now I don't want judges to decide how much we should spend on health service that is clearly not a traditional matter but I do want judges to decide on matters of Human Rights particularly when we are dealing with small and unpopular minorities and indeed we have since 1973 actually been living under a constitution in practice because Parliament has been a subordinate legislative body to the institutions of the European communities and then the European Union and that was as it were emphasized by the European Union a Charter of Fundamental Rights which I greatly welcomed and it was because small an unpopular minorities might be in danger particularly in periods of panic that Lord Scarman was the first judge in 1974 to advocate a British bill of rights by which he meant I think something that was actually justice appalled now therefore there is I think a case for a constitution which protects human rights but even more urgently for a constitution which Delian AIT's the relationships between Westminster and subordinate legislate and non ledge to devolve bodies in Scotland Wales and Northern Ireland and in those parts of England which now have directly elected mayors and combined authorities and the problem which arose which I think will increase with time was shown by the issues that arose when agricultural and Fisheries were being returned to Britain after or will be returned after brexit when instead of being returned to the devolve bodies they were for perfectly good reasons some of the powers being retained at Westminster in order to preserve an internal market in the whole United Kingdom and that came to the Supreme Court I think Johnson must have been at the time but the and the is it was decided no doubt right dear the Sewell Convention was not just disabled but this does leave open huge questions about the appropriate balance rights and obligations both of Westminster a medieval bodies and I think it's absolutely urgent that if we if we are to hold the United Kingdom together we frame them in a document that has more force on an everyday statute which can be repealed at will by Parliament and finally the question of the fixed term Parliament's Act which I agree with Jonathan is not a very fine piece of legislation in my view that does illustrate the case for a constitution because it shows how very fundamental change can be brought in rapidly without proper scrutiny for political reasons by a cobbled up majority after 2010 and I have to regret to say it was steered through Parliament by a former pupil of mine mark Harper MP though I imagine the draftsmen are to blame for mistakes and not my former pupils I think one of the problems about having Vernon's long and distinguished academic career is that just about everybody who has mismanaged our Constitution over the last few years will have been a member would have been one of that group the I will make a number of quite short points in response to what Vernon has just said because on the essence of his views of course I've already sought to answer it and first of all let's look at referenda and all the issues which he has suggested might have been the subject of referenda the euro regional devolution and so on strike me as classic examples of the sort of issues which cannot be formulated in yes and no terms those being the only terms that are actually suitable for a referendum it is difficult to see how we can do that without a legislative decision first which the electorate would then either say yes or no to that's really the only way of doing it and for that reason it doesn't actually answer the problem which he posed at the outset or his observations which is a situation in which there is a consensus or near consensus among political parties from which the mass of the affected population differ if you have to have legislation and then a confirmatory referendum you're not solving that problem now by way of illustration and turning to brexit vernon says well Parliament failed to implement the referendum I think that this is completely unrealistic because it requires one to form a view as to what the referendum result actually means Parliament has it is quite correct by a large majority voted to serve the article 15 notice and therefore to leave but there has been no consensus within Parliament about what the relations between this country and the EU should be after leaving so you ask yourself well what does the referendum results tell us about what those relations should be after leaving the answer is it tells us absolutely nothing at all the brexit party says that the referendum means that we should have no relations with the EU that would involve any binding obligations on our part itself rather an unrealistic view others say that there should be a customs union membership others say that we should remain part of the EEA all of these various solutions are equally consistent with the referendum results each side each the advocates of each solution say well this is must be what the the people who were voted to leave intended notwithstanding that the campaign was fought on the basis that we would continue to have close relations which would be easy to get on our own terms with the EU afterwards all of this illustrates that the enormous practical difficulties of formulating questions short of a legislative answer requiring confirmation that are actually capable of being submitted to a referendum as to Vernon's argument about the need for a constitution I do not see that the position as between the United Kingdom and its constituent nations including Scotland is in any doubt it is set out in the Scotland Act now that act can be amended and it may well need to be amended in some respects but I do not see that a constitution can define our relations with Scotland in any way that is not equally open to us to achieve by ordinary legislation the only difference is that if we do it by way of a written constitution we lock ourselves in to whatever arrangements we may have agreed at the time the Constitution was drafted and if our relations with Scotland over the last nearly 20 years are anything to go by what they demonstrate is that this is not and in an inner flexible or removable situation and does not therefore lend itself very well to something which is almost impossible to amend thank you very much got a microphone hello thank you yes I have a question for Lord assumption if we are to continue using referenda in future which of course seems quite likely are there any steps we can take to avoid the problems you've highlighted in your speech and in the reef lectures or is the only option to abandon the referendum process entirely I think that with the exception of confirmatory referenda which are essentially conditions of legislation that has already been passed which is the the Swiss and French system and that that applies in a very large number of other countries with that exception I think what the problem of referenda are inherent in the whole device now obviously this doesn't matter much if you are dealing with an issue about which people do not care very very much a good example might be the alternative vote referendum of 2011 that wasn't a particular problem partly because it was a confirmatory referendum but also I think because it's not an issue which generates terribly strong feelings people have views about which the best voting system is but they do not go into the streets and shout about those views so I think there is a scope for referenda in some issues and for some kinds of referendum but I do not think that there is any scope for using referenda to deal with value-laden issues to which the answer is neither yes or no but it all depends and certainly not issues which divide us into groups with very strong feelings on the subject those issues to my mind call for a political solution well I think everyone would agree that we need a referendum before a part of the United Kingdom should be allowed to secede whether Northern Ireland or Scotland was a very good illustration of that from 2014 that in 2015 the SNP 156 out of 59 seats in Scotland but the 2014 referendum showed that people did not wish to leave the United Kingdom if it hadn't been for that the SNP might well have claimed a mandate for secession that would have been perfectly possible and Jonathan I hope I've understood what you've said I find difficulty here to my right and that's a comment about the acoustics not about politics but I I mean I said he favours confirmatory referendums but there's a sense in which the European Union one was confirmatory because the government said we have redone a negotiation a renegotiation and we strongly recommend that people should stay in the European Union and the Liberal Democrats supported that and the Labour Party on the whole supported that perhaps a bit weekly but the people did not support it and I therefore raised the question of whether it's right for this country to stay in the European Union if the majority do not wish to do so right okay now I've got two or three hands going up so I'll take a collection of questions yes I think Henriette you've got a few hands near you right thank you thank you and my question is for professor Balin should a written constitution be adopted don't you think that the judiciary will be branded as unelected representatives when they interprets the laws also will the judiciary be permitted to adopt the living instruments approach of the Strasbourg Court when some of them the laws are rigid and on clay okay thank you very much now I'll take a couple more questions and then I'll ask our panel shall I shall I repeat yes yes well just trying to paraphrase it first of all if well if we were to adopt a written constitution what would the role of the judiciary be and ought the judiciary under such a system to adopt a living instrument approach to the interpretation of the Constitution okay now there were a couple more hands in the middle somewhere yes my question is also for professor Bolton or particularly in the light of what you just said about the relationship between the Scottish independence referendum and then the result of the subsequent journaled election would it not be possible to argue that the 2017 general election was to a degree a response to the referendum in 2016 and similarly that the election next month would also be a response to what has happened since 2016 and in my view it is and therefore to say that to describe what's happening as a as a parliamentary crisis rather than a constitutional crisis is wrong okay we're at people able to hear that yes okay and then there's another hand and another microphone yes can you stand up and speak slowly for us thank you is the debate between having a perhaps representative democracy in a direct democracy ie representatives and referenda not missing a particularly unique solution of a more proportional system that would remove the division between what the representatives say and what the people want thank you very much I think we could hear that good and another hand around there yes and if you wouldn't mind standing up and so we can okay sorry yes I I would just like to contest Lord function statement that referenda a device for circumventing the political process and that they're not suitable for issues for strong feelings are at stake and I'd like to do so would an example from Ireland last year we had a very divisive referendum on a very emotive issue of abortion and we did not circumvent a political process because we had a citizen's assembly which was a whole process for about a year where people the people were consulted on this they were experts and there were experts who gave their opinions to be all sides of the debate and you know abortion is not a yes or no answer and we didn't need a confirmatory referendum in this instance because the long process of the citizens assembly fed into the legislation that we now have and although the issue is not over as legislation of course needs to be implemented the process that we had endowed with the result of the referendum and the legislation with a certain legitimacy right thing sorry to hurt it's a long question and I hope we've understood it jonathan have you have you got it yeah okay does anyone want it repeated briefly paraphrased or did we all get that okay right I'm going to ask our two panelists to respond Jonathan would you like to respond to that most recent one and we'll see well citizens assemblies are the flavor of the month I'm personally do not think that citizens assemblies really resolve any of the problems they are essentially a ways of canvassing opinion among what is usually a selective body of people they are not suitable methods of decision making and I do not see how they ever can become so these are decisions in which everybody has to participate I think that there either have a process of direct democracy or a process of indirect democracy and I have given my reasons for believing that indirect democracy is an altogether more satisfactory way of accommodating the differences between us thank you now I don't think our two panelists can necessarily engage with all of the questions that have been asked but I'm just going to see if there's anything more they'd like to say though what about the other question yes well respond let me begin with two issues where I really agree with Jonathan the first his skepticism towards citizens assemblies which seems to me a democracy of the articulate and the great advantage of the referendum as of an election is it gives the inarticulate an equal say with the articulate and the referendum of 2016 there's a lot of people to vote who hadn't voted for many years I also think Jonathan and I agree on the value of proportional representation I think we both like C proportional representation in Britain indeed I think it's almost inevitable when we have a four party system in England and a five party system in Wales and Scotland but even with that I don't think that obviates the need for a referendum and Switzerland of course has proportional representation Ireland which was mentioned has provision for the referendum in the eye Constitution required for certain issues I don't like the phrase direct democracy nowhere except in small Swiss cantons or New England town meetings to referendum to replace the democratic system they supplement it even in Switzerland Parliament still has an important role government still has an important role they supplement some of the weaknesses of the representative system and I think I've misunderstood Jonathan which I apologize if I have on what he means by a complimentary referendum he doesn't mean I think confirming the legend I think using a second referendum on the EU do know what I need is the state of affairs where you pass the legislation and it's can it's coming into force is conditional on it's being approved in a referendum that is obligatory in Switzerland and in France now I haven't misunderstood you were there then on that point only question about the general elections in the 2017 election both major parties said they accepted the result of the referendum and would implement it they said they supported really different varieties of brexit it's true the conservatives are harder brexit than the labour party the only parties which said they would not accept the result of referendum were the Liberal Democrats and the SNP and they of course did not win a majority the reason for the 2019 referendum is a different one that Parliament hasn't done what the major parties said they would do and what was passed in the notification withdrawal acts they will the end without winning the means finally might both the point about the living instrument I'm not sure I fully understand it but it does seem to me of course that rights develop when the European Convention was drawn up in 1950 no one thought about LGBT rights or rights to protect the environment or some of the other rights in the EU Charter so it seems to me our thinking on rights must be dynamic and they must develop through time if I've understood the question properly Thank You Jonathan Joseph I'll say something about living instruments of course rights develop some rights develop more than others but the real question is how they should develop whether judges should develop them or whether they should be developed by a democratic process I have given my reasons why I think the pelota is altogether preferable and I think that the whole human rights issue is a very good illustration of that I I don't think that the basic rules of the Human Rights Commission are particularly controversial the controversies arise about the exceptions the occasions when you may derogate or depart from the basic rule on the grounds that there is a proportional requirement to pursue some other conflicting public interest if you are going to ask yourself to take just one example how much privacy are we prepared to sacrifice in the interests of for example the efficient functioning of the intelligence services or the suppression of crime I think that that is not a suitable issue for judges to be deciding it's essentially a judgment between two incommensurate public objectives on which the public no doubt disagrees among themselves and which need to be resolved by some kind of political process thank you now any more questions all right there's someone over here a gentleman well if you keep your hand up I think the mic will reach you and then there was someone over there but the hands gone down and another one at the back over there right in the back row how are we doing the mics can you hear me yes yeah can you stand up thank you and if you could go slowly because of the acoustics Thanks the Supreme Court case has caused a lot of people to say there should be approval hearings for judges I assume this is because they feel they should be an accountability built into the system if you look at the 2005 that act and the changes to the Lord Chancellor's role in fact there was already a system for political accountability because there was a cabinet minister involved in judicial appointments is there anything you think can be done to the Lord Chancellor's role to improve the system so we can avoid having judicial approval hearings thank you very much now where's the next mic over there I think yes on any view the margin in favor of leaving the EU in the 2016 referendum was very narrow would professor Bogdan or accept that if a threshold of say 60% or two-thirds have been imposed that might have been a more satisfactory way of conducting the referendum I would lord sumption find the idea of referendum on a very divisive issue more palatable if such a threshold were to be imposed finally can Parliament be trusted to decide whether and what sort of threshold should be imposed thank you and there was another one somewhere yes my question is for Lord sumption you said before that politics is a marketplace but doesn't professor Baabda know I have a point that perhaps politicians are not always keeping up with the mood of the public in particular there is this whole issue about the elites being aloof from the views of the common man so my question is if that is the case and if at the same time you don't consider referenda to be an appropriate way of resolving that issue then is there some other way of addressing the disconnect between the political class on the one hand and the general populace on the other so those are three questions I think Jonathan would you like to start this time okay the first question was about essentially some kind of confirmation process or executive or legislative involvement in judicial appointments I think that this would be a spectacularly bad idea the inevitable result would be I mean I think for two reasons first of all it's useless and secondly it's objectionable in principle it's useless because what questions might one ask of a potential candidate for judicial appointment do you say to him by you Ettore do you say to him are you in favor of brexit and if you get the quote wrong unquote answer do you say well this is the most unsuitable sort of person to be appointed to a judicial office in practice what happens as we know from the United States is that sensible candidates say I cannot answer any questions about how I would decide particular cases because I will not have heard the arguments and so on so they are distinctly uninformative occasions why is it objectionable in principle it's objectionable in principle because political involvement in the appointment of judges inevitably politicizes the judiciary it produces a situation which has now reached extreme levels in the United States where essentially you elections have become in part a contest for the right to appoint long-standing judges to the Supreme Court and that seems to me to be an extremely regrettable situation which is a large part of the reason why the Supreme Court in the United States has become both a highly politicized body and a wholly predictable one in which the judges belonged effectively to parties and dig trenches around themselves I cannot believe that that is in anyone's interest the threshold question I do not favor referenda whether with a threshold or not I certainly can see the argument is saying if you're going to have them anyway and you're asking people to go through to vote upon a change which radically transforms the whole basis of our economy and a large part of the basis of our society it may be that more than 50% is required but would that reconcile me to referenda no it would not as to the disconnect between politicians and the public I think that this is exaggerated MPs want to be elected now parties want majorities there are issues on which people I mean at one stage the death penalty would one such as you on which people feel differently to most politicians but don't feel strongly enough to allow it to influence their vote for particular parties given that they attach great importance to many other things in the manifesto it seems to me that the effect of the indirect representative democracy is to put a brake on some of the more impulsive and divisive views of the majority but if there is a settled opinion of the majority over a significant period then I have no doubts that the parties will adapt themselves to that and that sooner or later it will happen but the fact that it won't happen at once seems to me not to be a disadvantage at all but a very considerable advantage it's if you believe as I think Jonathan does the law in trenches too much on the political sphere it seems to me there is something to be said for the American method because it ensures that the interpretation of Rights follows the long time gap the democratic process for example between 1933 and 1953 you had solely presidents from the Democratic Party and that meant the judges after a time lag interpreted rights in a certain way from 1969 to 1993 you had only appointments from the Republican Party because the only Democratic President Carter by chance had no appointments and that also altered the nature of the court but no doubt we don't want to go as far as that here what we do need I think is a much closer understanding between judges and politicians and judges do give lectures giving their point of view they sometimes write articles for learning journals and so on and I think that is to be encouraged because there is a form of accountability which is not answer ability which is explanatory that countability and I think we need a lot more of that on the question of the role of the judges we are often dealing in difficult cases with the rights of very small and unpopular minorities such as as eylem seekers prisoners suspected terrorists whose rights are not defended particularly in periods of moral panic and we can't rely on politicians to defend them in a previous period of consensus no doubt this wasn't a serious problem but the kind of Burkean philosophy which relies on tradition and consensus is i think no longer appropriate in the society in which we live as for thresholds and referendums we tried that out in 1979 it didn't work very well because 33 percent of Scots voted for devolution and 31% against but the Scots didn't get devolution which perhaps helped to cause the rise of nationalism and it had the unfortunate effect of meaning that an abstention counted in effect as a no vote and if you had say a 60% threshold in the 2016 referendum it would mean that we would stay in the European Union even though majority were against and it seems to me that would have much more serious consequences for our democratic system and the actual result and I conclude by saying I think the problems the risen because we in the liberal elite are such bad losers and will not upset the results of the referendum which most of us do not like we are not used to losing well I think probably that brings to an end the Q&A session and subject to what I'm about to say we can move to the reception but I would be interested to have a show of hands amongst the audience here I'm not going to count it this would just be an impression how many people having heard all these discussions think that we ought to adopt a written constitution and how many people think we should not adopt a written constitution well there we are that's interesting that I do hope that you have all enjoyed or well in any way benefited from the discussion I would like to thank the audience for very good questions that various members of you have put and for your obvious interest in this discussion and of course I would like to thank our two speakers Nora sumption and Professor Bogdan all very much for giving us their time and also their very well thought out carefully thought-out opinions on these varied in my view very very difficult situations so thank you very much and now I suggest we all adjourn well not adjourn anyway have a reception and we can go on [Music] [Applause]

Channel: The Inner Temple

Views: 28,866

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Id: YIlkY90Cck8

Length: 64min 34sec (3874 seconds)

Published: Tue Nov 12 2019