The Constitution: mice undermine the wall

A Constitution, Democracy and Rights Commission is a thing around which many projectors will orbit with their ideas, but the brief outlined in the Conservative Manifesto was short, and from Number 10 the challenge is finding what a commission with such a grand name is to do, and what it will not.

There are some big headline issues, like the Fixed Term Parliaments Act, an questions about reducing the number of members of Parliament (the latter already kicked into the long grass). Reducing the House of Lords and winnowing its membership may be discussed. Reform of judicial review is on the cards, but even that is a limited intervention. I have written about that subject before. and will again, but I want to think about the subjects beneath the headlines and which underlie, or undermine, all that stands above them.

There are many points to look at in other articles, but since a frequent topic of concern is judicial review, I may start by looking at the failings which make judicial reviews happen.

As I have observed before, judicial review is rare and applications are rarely successful – about 1% get to and succeed at trial. If it were not for bulging teams of lawyers crawling over every proposed action, there would be more. However it should be worrying that a public authority, having been granted powers for the public benefit, cannot actually exercise those powers without being supervised by a costly legal team. It is as if to grant the power and then take much of it back again.

The issue is a constitutional one: power legally granted yet being hampered by other constitutional reasons. The fault though is not constitutional as such: it is the way in which powers are granted half-heartedly by Parliament, and that is a fault in part from bad habits encrusted over the generations, but also from timidity. Those who prepare Bills and SIs live in fear of criticism if they think too much, and the politicians live in fear of criticism if they leave any gap through which blame may fall. Wee, sleekit, cow’rin, tim’rous beastie, O, what a panic’s in thy breastie! Between these, faltering instructions are given which stifle innovative practice and leave decision-making uncertain unless the decision-makers play safe, which contradicts the width of the powers given.

I will return to this with more particularisation later.