Zachary Spiro is a former adviser to Conservative Select Committee Chairs, and is a consultant at Flint Global. He writes in a personal capacity.
If a written constitution is the answer, what is the question? For Gordon Brown’s Commission on the UK’s Future, a formal constitution is a tool of almost limitless dexterity.
In Brown’s telling, the achievements of a correct legal framework range from addressing devolution and fixing homelessness to the elimination of poverty itself.
There are a great number of proposals contained in the lengthy document – running to more than 150 pages – and its portions on Scotland, the House of Lords and electoral reform have been covered elsewhere.
However, leaving the long-term implications to one side, it is the plan to hard-wire policy commitments into law subject to “constitutional protection” that raises the most immediate concerns, and risks injecting even more politicisation into court processes.
According to Brown’s document, these “basic rights” include ideals such as “no person shall be denied emergency care”, “no person shall be left destitute”, and “every person shall be entitled to decent accommodation”.
While these are laudable political objectives (in fact, the difficulty of objecting to them is probably what led to their inclusion in the first place), placing them on constitutional footing would be a mistake that may have extremely unpleasant results.
After all, claiming “constitutional protection” for rights is meaningless unless they are, in some way, enforceable. We can see this with the European Convention on Human Rights. Via the Human Rights Act, Government decisions may be challenged – and, in a number of cases, successfully overturned – on the basis that they do not adhere to the rights enumerated in the Convention.
What Brown is proposing here, although the precise mechanism is not fully clarified, is in some form to elevate these “rights” to a similar level: crafting them into a lens through which other policy may be judged.
What is most dangerous is not the fact that Brown is seeking to elevate some law to constitutional status, but that these laws include specific policy outcomes. Brown is not trying to write values into our theoretical constitution, but policies themselves.
This is not new: these ideas have a long Brownite pedigree. The 2009 document Building Britain’s Future, published less than a year before Labour would lose office, promised “enforceable rights” to NHS care. These include hospital care within 18 weeks, and access to a cancer specialist within two. There are also a set of education rights which, according to Sue Heywood’s memoirs, were the subject of substantial cross-Whitehall wrangling.
The intervening 13 years do not appear to have dulled Brown’s fervour for this form of policy-making. However, the approach fundamentally puts the cart before the horse.
The best way to ensure that patients can see a cancer specialist within two weeks is not to get Parliament to carve the commitment into stone. It is to have a well-organised and well-funded healthcare system capable of delivering those targets. The NHS backlog is currently more than 7m people; it is not immediately obvious how a law simply demanding that it be lower would make much of a difference.
To stick with healthcare, let us take one example: the right that “no person shall be denied emergency care”. What does this actually mean?
If it is intended to tackle people being turned away from hospitals when there are beds available, then it is tackling a problem that doesn’t exist. More likely, Brown has some version of a minimum service requirement in mind – perhaps maximum waiting times, as suggested by his 2009 proposals.
But in the absence of further explanation – explanation Brown fails to provide in his report – making access to emergency treatment an unbreakable vow would necessarily leave it up to the courts to make sense of what was actually being promised.
This is not an abstract hypothetical, but an inevitable consequence of granting vague policy outcomes “constitutional protection”.
Similarly, Brown suggests that “no person shall be left destitute” should be constitutionally elevated. And again, there is no expansion of what these words mean in Brown’s eyes.
We are left once more with the spectre of courts trying to work out whether benefit levels, pensions or other cash transfers are enough to avoid poverty. Most damagingly, this could lead to judges setting the level of welfare payments over the heads of ministers, the public spending consequences not figuring at all.
Fundamentally, these are political decisions, not legal ones. They belong not with judges, but campaigning, elected politicians.
By advocating handing this power to courts, Brown is implicitly removing them from the hands of a future Conservative Government. In Peter Mair’s description, from his 2013 book Ruling the Void, Brown is embodying the policy-maker “inclined to withdraw to the institutions as a defence against the uncertainties of the electoral market”.
Except policy cannot truly be lifted above politics, and certainly not in the way Brown imagines. The recent experience of the US is a cautionary tale. Roe vs Wade, the Supreme Court ruling which siloed access to abortion away from electoral politics, manifestly failed to deliver a nation-wide consensus on the issue.
By taking power away from politicians, the American system responded by politicising judges. Judicial confirmation hearings have subsequently gone from being chummy, collegiate affairs to deeply partisan televised confrontations. Presidential elections are now millenarian events, with only the right judicial appointments standing in the way of unchecked Republican or Democratic tyranny, depending on your perspective.
After half a century of fighting, Roe – a decision which was decided by a bipartisan coalition of judges – was overturned this year by a strict party-line vote.
By injecting policy outcomes into constitutional law, Brown would light a fire under the process of judicial politicisation, leading to inevitable polarisation and damage. For the health of our political system, they should be rejected.
Zachary Spiro is a former adviser to Conservative Select Committee Chairs, and is a consultant at Flint Global. He writes in a personal capacity.
If a written constitution is the answer, what is the question? For Gordon Brown’s Commission on the UK’s Future, a formal constitution is a tool of almost limitless dexterity.
In Brown’s telling, the achievements of a correct legal framework range from addressing devolution and fixing homelessness to the elimination of poverty itself.
There are a great number of proposals contained in the lengthy document – running to more than 150 pages – and its portions on Scotland, the House of Lords and electoral reform have been covered elsewhere.
However, leaving the long-term implications to one side, it is the plan to hard-wire policy commitments into law subject to “constitutional protection” that raises the most immediate concerns, and risks injecting even more politicisation into court processes.
According to Brown’s document, these “basic rights” include ideals such as “no person shall be denied emergency care”, “no person shall be left destitute”, and “every person shall be entitled to decent accommodation”.
While these are laudable political objectives (in fact, the difficulty of objecting to them is probably what led to their inclusion in the first place), placing them on constitutional footing would be a mistake that may have extremely unpleasant results.
After all, claiming “constitutional protection” for rights is meaningless unless they are, in some way, enforceable. We can see this with the European Convention on Human Rights. Via the Human Rights Act, Government decisions may be challenged – and, in a number of cases, successfully overturned – on the basis that they do not adhere to the rights enumerated in the Convention.
What Brown is proposing here, although the precise mechanism is not fully clarified, is in some form to elevate these “rights” to a similar level: crafting them into a lens through which other policy may be judged.
What is most dangerous is not the fact that Brown is seeking to elevate some law to constitutional status, but that these laws include specific policy outcomes. Brown is not trying to write values into our theoretical constitution, but policies themselves.
This is not new: these ideas have a long Brownite pedigree. The 2009 document Building Britain’s Future, published less than a year before Labour would lose office, promised “enforceable rights” to NHS care. These include hospital care within 18 weeks, and access to a cancer specialist within two. There are also a set of education rights which, according to Sue Heywood’s memoirs, were the subject of substantial cross-Whitehall wrangling.
The intervening 13 years do not appear to have dulled Brown’s fervour for this form of policy-making. However, the approach fundamentally puts the cart before the horse.
The best way to ensure that patients can see a cancer specialist within two weeks is not to get Parliament to carve the commitment into stone. It is to have a well-organised and well-funded healthcare system capable of delivering those targets. The NHS backlog is currently more than 7m people; it is not immediately obvious how a law simply demanding that it be lower would make much of a difference.
To stick with healthcare, let us take one example: the right that “no person shall be denied emergency care”. What does this actually mean?
If it is intended to tackle people being turned away from hospitals when there are beds available, then it is tackling a problem that doesn’t exist. More likely, Brown has some version of a minimum service requirement in mind – perhaps maximum waiting times, as suggested by his 2009 proposals.
But in the absence of further explanation – explanation Brown fails to provide in his report – making access to emergency treatment an unbreakable vow would necessarily leave it up to the courts to make sense of what was actually being promised.
This is not an abstract hypothetical, but an inevitable consequence of granting vague policy outcomes “constitutional protection”.
Similarly, Brown suggests that “no person shall be left destitute” should be constitutionally elevated. And again, there is no expansion of what these words mean in Brown’s eyes.
We are left once more with the spectre of courts trying to work out whether benefit levels, pensions or other cash transfers are enough to avoid poverty. Most damagingly, this could lead to judges setting the level of welfare payments over the heads of ministers, the public spending consequences not figuring at all.
Fundamentally, these are political decisions, not legal ones. They belong not with judges, but campaigning, elected politicians.
By advocating handing this power to courts, Brown is implicitly removing them from the hands of a future Conservative Government. In Peter Mair’s description, from his 2013 book Ruling the Void, Brown is embodying the policy-maker “inclined to withdraw to the institutions as a defence against the uncertainties of the electoral market”.
Except policy cannot truly be lifted above politics, and certainly not in the way Brown imagines. The recent experience of the US is a cautionary tale. Roe vs Wade, the Supreme Court ruling which siloed access to abortion away from electoral politics, manifestly failed to deliver a nation-wide consensus on the issue.
By taking power away from politicians, the American system responded by politicising judges. Judicial confirmation hearings have subsequently gone from being chummy, collegiate affairs to deeply partisan televised confrontations. Presidential elections are now millenarian events, with only the right judicial appointments standing in the way of unchecked Republican or Democratic tyranny, depending on your perspective.
After half a century of fighting, Roe – a decision which was decided by a bipartisan coalition of judges – was overturned this year by a strict party-line vote.
By injecting policy outcomes into constitutional law, Brown would light a fire under the process of judicial politicisation, leading to inevitable polarisation and damage. For the health of our political system, they should be rejected.