I am delighted that Suella Braverman MP has been appointed Attorney-General. She is a first-class lawyer and a fierce opponent of judicial activism.
There used to be an understanding that our constitution had a lock that required 3 keys to be operated simultaneously: only when the Crown, the House of Peers and the Commons all agreed on a measure would it become law.
Over the last century or so the power of two of those keys has diminished dramatically: in effect the Crown has withdrawn entirely from decision-making in the legislative process and the Parliament acts of 1911 and 1949 have reduced the Peers to a revising chamber with limited delaying powers. The Commons is supreme.
Constitutional theorists fret about this largely unchecked concentration of legislative power in one body. It does have the virtue however, of being elected, so that it is periodically held to account by voters for its stewardship.
I have always been in receipt of letters demanding constitutional reform, to be fair it’s always been a minority taste amongst my correspondents, but it has been growing steadily albeit from a low base. Their principal demand is for the certainty of a written constitution.
This is the very opposite of what we currently enjoy, where there is no superior body of constitutional law that cannot be altered by statute (a new act of Parliament). Parliament can make new law and alter or repeal any previous laws unrestrained. Parliament is supreme and no court can strike out its statutes.
(Under the Human Rights Act 1998 a court can declare any Act of Parliament as being incompatible with the Human Rights Act, but that will be just a declaration: the offending Act remains in force; the court cannot strike it out. In any event, Parliament itself can repeal the Human Rights Act should it choose to.)
The reason we should shrink from a written constitution is that it would establish a superior body of law as supreme, and which Parliament could not alter, and by which it would have to abide.
The will of the people, expressed through their elected representatives would be constrained by this new body of law.
Now here’s the real rub: any decision with respect to whether a law infringed the constitution would be made by judges, who would indeed have gained the power to strike out laws democratically made by elected representatives.
We would have replaced the supremacy of an elected Parliament with the supremacy of unelected judges.
Given the rage with which so many constituents have written to me over the years to vent their frustration at judicial decisions that fly in the face of common sense (most recently, for example, the decision to halt the deportation of a foreign rapist and a murderer), such a constitutional settlement would be very much for the worse.
(…but not all the judges are barking: Well done to Mr Justice Knowles for condemning the Orwellian actions by Humberside police who presumed to “check the thinking” of Harry Miller for expressing perfectly legitimate opinions about ‘transgender’ issues)