1 00:00:03,430 --> 00:00:10,390 Or a very full room? What a fantastic turnout. Thank you so much for coming, everybody. 2 00:00:10,390 --> 00:00:14,410 At least the weather's been kind to us today as well as, I'm sure you know, 3 00:00:14,410 --> 00:00:22,780 this is the first lecture in the Oxford Martin School series Shaping the future. 4 00:00:22,780 --> 00:00:33,340 Just to remind everybody, both the lecture itself and the Q&A at the end will be filmed and a live webcast. 5 00:00:33,340 --> 00:00:39,010 So just be aware of that for the Q&A session at the end of the talk. 6 00:00:39,010 --> 00:00:44,320 Please wait for a microphone to be handed around to you so that we can all hear you at. 7 00:00:44,320 --> 00:00:49,030 The front is quite a long room with not the most marvellous acoustics. 8 00:00:49,030 --> 00:00:52,420 They all shoot up there to the gallery. 9 00:00:52,420 --> 00:01:02,920 Um, it's my privilege and pleasure in Charles's stead as head of the School of Social Sciences to welcome our speaker today, 10 00:01:02,920 --> 00:01:12,910 who will be well known to many of you. Whether you are recent fans as a result of the Reith lectures or long standing fans, 11 00:01:12,910 --> 00:01:23,320 as many as many of you will be both from the historical, political and legal sides of his extraordinary body of work. 12 00:01:23,320 --> 00:01:27,550 So, Lord Jonathan Sumption, thank you so much for joining us today. 13 00:01:27,550 --> 00:01:40,470 Lord Sumption is an historian, author and was justice of the Supreme Court between 2012 and 2018, as well as being a barrister. 14 00:01:40,470 --> 00:01:46,740 As many of you will know, he was in the early part of the 70s. 15 00:01:46,740 --> 00:01:54,540 He graduated from modelling in history and then became took up a fellowship at Morton for the first half of the 1970s. 16 00:01:54,540 --> 00:02:05,880 And I'm very pleased to hear from him this evening that he's now back with us with an association at all souls for many of you. 17 00:02:05,880 --> 00:02:09,990 His work in history will be very well known. 18 00:02:09,990 --> 00:02:15,330 The four volumes on the Hundred Years War, including divided houses, 19 00:02:15,330 --> 00:02:24,480 which was the winner of the 2009 Wolfson History prise and also trials of the state law and the decline of politics, 20 00:02:24,480 --> 00:02:28,650 which he's talking on at this year's Oxford Literary Festival. 21 00:02:28,650 --> 00:02:33,570 So that's another opportunity to hear what he has to say. 22 00:02:33,570 --> 00:02:42,840 He also, as I said, earlier gains in the 2019 Reith lectures, arguing that law was taking over the space once occupied by politics. 23 00:02:42,840 --> 00:02:49,770 We may well be hearing some echoes of that, perhaps in tonight's talk. 24 00:02:49,770 --> 00:02:56,970 So, Lord Sumption, thank you for being with us, and we look forward to your talk on British politics after Brexit. 25 00:02:56,970 --> 00:03:00,930 Reflections on the last three years and the next 50. 26 00:03:00,930 --> 00:03:13,670 Thank you, Lord Sumption. Good evening. 27 00:03:13,670 --> 00:03:23,720 When Walter Badgett wrote the second edition of his classic account of the British Constitution in 1873, 28 00:03:23,720 --> 00:03:27,530 he observed that it was likely to be out of date very quickly. 29 00:03:27,530 --> 00:03:32,750 The British Constitution under Lord Palmerston, which he had described in the first edition, 30 00:03:32,750 --> 00:03:38,720 was very different from that of Benjamin Disraeli only a decade later. 31 00:03:38,720 --> 00:03:50,240 In the absence of a written code or comprehensive legal rules, the British Constitution is whatever happens, as budget put it. 32 00:03:50,240 --> 00:04:00,110 The Constitution has continued an outward sameness, but in hidden in the change, he regarded this as an advantage. 33 00:04:00,110 --> 00:04:05,420 It enables the Constitution to adapt to external shocks. 34 00:04:05,420 --> 00:04:14,870 I'm inclined to agree with him about that, but it means as so often in Britain, that the label does not always match the contents of the bottle. 35 00:04:14,870 --> 00:04:24,290 It also enables the British to achieve constitutional changes by accident without necessarily intending it. 36 00:04:24,290 --> 00:04:31,730 Does this matter? It's far from clear that we would have a better constitution if we changed it on purpose. 37 00:04:31,730 --> 00:04:35,060 We would certainly have a more rigid one. 38 00:04:35,060 --> 00:04:41,660 I very much doubt whether a more formal constitution would have weathered the crisis of the past three years, 39 00:04:41,660 --> 00:04:46,760 as well as the one that we've got during that period. 40 00:04:46,760 --> 00:04:56,180 The Constitution has undergone significant changes, most of which can be traced to the decision to leave the European Union. 41 00:04:56,180 --> 00:05:02,960 They include major changes in the role of political parties in the relations of 42 00:05:02,960 --> 00:05:09,680 the governments with parliaments and in the constitutional role of the courts. 43 00:05:09,680 --> 00:05:16,910 All of these have been controversial, but the controversy has been distorted by the European debate. 44 00:05:16,910 --> 00:05:22,100 People have welcomed or deplored these changes depending on how they affect the 45 00:05:22,100 --> 00:05:27,530 likelihood of leaving the EU and whether they happen to stand on that issue. 46 00:05:27,530 --> 00:05:30,500 To my mind, this is rather absurd. 47 00:05:30,500 --> 00:05:40,010 Ultimately, constitutional change has to be considered on its merits, irrespective of one's views about any particular issue. 48 00:05:40,010 --> 00:05:49,970 What I want to talk about this evening is why the decision to leave the EU provoked the biggest constitutional crisis of recent history. 49 00:05:49,970 --> 00:05:56,270 And I want to consider what the continuing effect of that crisis is likely to be on our public life. 50 00:05:56,270 --> 00:06:10,610 Now that it's over. At any rate, at the domestic political level, the Brexit crisis was the result of three remarkable developments which coincided. 51 00:06:10,610 --> 00:06:21,710 The first was the attempt to resolve a highly controversial question by introducing an element of direct democracy into a parliamentary system. 52 00:06:21,710 --> 00:06:33,350 The second was the advent of a minority government, and the third was the collapse of a shared political culture which had previously existed. 53 00:06:33,350 --> 00:06:40,220 Now these three things are, of course, related. The starting point for all of them was the referendum. 54 00:06:40,220 --> 00:06:46,830 A referendum is a device for circumventing the parliamentary process. 55 00:06:46,830 --> 00:06:56,400 The justification for doing that in 2016 was that there was a mismatch between parliamentary sentiment and public opinion. 56 00:06:56,400 --> 00:07:05,280 Public opinion was divided on the European Union, but all parties represented in Parliament believed that we should remain in it. 57 00:07:05,280 --> 00:07:11,040 So if you wanted to leave, there was no party that you could vote for, except for UKIP, 58 00:07:11,040 --> 00:07:17,400 which had no employees and little prospect of getting any in due course. 59 00:07:17,400 --> 00:07:21,900 This problem would probably have resolved itself sooner or later. 60 00:07:21,900 --> 00:07:26,970 The transformation of the Conservative Party into an anti-EU party would, I think, 61 00:07:26,970 --> 00:07:34,800 have occurred anyway as a result of the growth of anti-European sentiments in its electoral base. 62 00:07:34,800 --> 00:07:47,180 But David Cameron's decision to try to lanced the boil in 2016 greatly accelerated the process with extremely disruptive consequences. 63 00:07:47,180 --> 00:07:57,110 The great Victorian constitutional lawyer, a dicey whose works are still authoritative, was a great believer in referenda. 64 00:07:57,110 --> 00:08:08,270 He thought that they were a superior alternative to party politics, which he regarded as a source of unnecessary strife and division. 65 00:08:08,270 --> 00:08:15,110 He argued that referenda were a useful way of restraining the wild projects of politicians. 66 00:08:15,110 --> 00:08:23,600 A referendum, he said, was an emphatic assertion of the principle that nation stands above party. 67 00:08:23,600 --> 00:08:33,530 It would be hard to imagine a clearer refutation of dices view than the referendum of 2016. 68 00:08:33,530 --> 00:08:42,140 The problem is that the argument doesn't work if this is the nation rather than the parties, which is divided. 69 00:08:42,140 --> 00:08:48,080 There were, I think, two things wrong with the referendum of 2016. 70 00:08:48,080 --> 00:08:54,050 The first is common to all referenda on issues about which there are strong feelings. 71 00:08:54,050 --> 00:09:04,520 They create a sense of entitlement amongst the majority, which inhibits compromise and invites absolute solutions. 72 00:09:04,520 --> 00:09:14,180 This is the mentality is summarised in the often repeated statement that the British people have voted to leave the EU. 73 00:09:14,180 --> 00:09:21,560 It's implied at what many people said out loud that the 48 percent who voted to stay were 74 00:09:21,560 --> 00:09:28,700 not for this purpose to be regarded as part of the British people and didn't really count. 75 00:09:28,700 --> 00:09:39,920 Far from uniting the nation, as does see, had envisaged the referendum of 2016 sundered the four nations of the United Kingdom. 76 00:09:39,920 --> 00:09:46,760 It divided us by class, by region, by economic status and by generation. 77 00:09:46,760 --> 00:09:51,860 It split families, it alienated friends, it poisoned our politics. 78 00:09:51,860 --> 00:10:03,290 It was, I think, the most significant cause of the demise of the shares political culture, which had hitherto enabled our constitution to work. 79 00:10:03,290 --> 00:10:09,540 That has, in turn, encouraged a much more authoritarian style of government. 80 00:10:09,540 --> 00:10:18,870 The second objection is specific to the referendum of 2016 in countries such as France, 81 00:10:18,870 --> 00:10:24,600 Switzerland or Italy, whose constitutions provide for referendum. 82 00:10:24,600 --> 00:10:33,060 It is necessary to formulate a precise legislative proposal whose approval by the electorate will be decisive. 83 00:10:33,060 --> 00:10:42,540 That was the kind of referendum IOC had in mind. It was also the kind of referendum that Britain itself chose for the Scottish 84 00:10:42,540 --> 00:10:51,390 devolution referendum of 1979 and for the alternative vote referendum of 2011. 85 00:10:51,390 --> 00:11:01,020 The problem with the question asked in 2016 was that there were too many answers to it other than yes or no. 86 00:11:01,020 --> 00:11:11,460 You might be in favour of leaving the EU in any circumstances. Whatever some people, you might be in favour of leaving it only on the footing. 87 00:11:11,460 --> 00:11:21,510 Urged by the Leave campaign, namely that a satisfactory agreement could quite easily be reached about future relations with the EU. 88 00:11:21,510 --> 00:11:29,640 If that was your view, there were any number of different agreements with the EU that you might regard as satisfactory. 89 00:11:29,640 --> 00:11:37,800 Unfortunately, the nature of our future relations with the EU after leaving was not on the ballot paper. 90 00:11:37,800 --> 00:11:45,150 It hardly could have been since it depended on the result of an uncertain future negotiation. 91 00:11:45,150 --> 00:11:51,210 Yet that was the whole subject of dispute for the next three and a half years. 92 00:11:51,210 --> 00:12:00,660 The referendum could only ever have been decisive if the answer was remain, as Mr Cameron confidently expected it to be. 93 00:12:00,660 --> 00:12:10,530 If the answer was leave, then all the difficult questions would be left unanswered for Parliament to deal with as a result. 94 00:12:10,530 --> 00:12:16,050 The referendum was not the end of the argument, but only the beginning. 95 00:12:16,050 --> 00:12:25,880 Against that background, it is rather odd to say that Parliament had no business to be arguing, as it did about Brexit. 96 00:12:25,880 --> 00:12:28,800 Yet that is what the government did say. 97 00:12:28,800 --> 00:12:37,770 The House of Commons was repeatedly accused of obstructing the attempts to implement the results of the referendum. 98 00:12:37,770 --> 00:12:45,330 This accusation reached the outer limits of hyperbole in September 2019, 99 00:12:45,330 --> 00:12:57,240 when the attorney general of all people told the House of Commons that it has no moral right to sit in its manifesto for the subsequent election. 100 00:12:57,240 --> 00:13:08,220 The Conservative Party declared that MPs had devoted themselves to thwarting the Democratic decision of the British people in the 2016 referendum. 101 00:13:08,220 --> 00:13:14,130 Now this sort of thing has been repeated so often that we are, I think, in danger of believing it. 102 00:13:14,130 --> 00:13:16,890 It is manifestly untrue. 103 00:13:16,890 --> 00:13:25,470 The facts are that the House of Commons voted by a very large majority to serve the Article 50 notice on the European Commission. 104 00:13:25,470 --> 00:13:32,700 It's accepted the principle of leaving the EU as a political necessity in the light of the results of the referendum. 105 00:13:32,700 --> 00:13:42,420 But on the terms of our departure, it was as divided as the population that it represented, which was perhaps only proper. 106 00:13:42,420 --> 00:13:49,320 The real birth of the government's complaint against Parliament was that a majority of MPs was 107 00:13:49,320 --> 00:13:56,760 unwilling to allow them to leave the EU until they had made satisfactory alternative arrangements. 108 00:13:56,760 --> 00:14:07,740 Now that undoubtedly weakens the government's negotiating hand in Brussels, but it was neither unreasonable nor undemocratic, 109 00:14:07,740 --> 00:14:17,850 having sponsored a referendum which left parliament to sort out all the ambiguities and uncertainties of the results. 110 00:14:17,850 --> 00:14:24,450 The government then lost the majority, which might have enabled that to be achieved. 111 00:14:24,450 --> 00:14:34,260 There had been minority governments before before 2017, that is, but they were few and they were short lived. 112 00:14:34,260 --> 00:14:40,950 In each case, the situation was managed by avoiding controversial legislation. 113 00:14:40,950 --> 00:14:45,120 But that was hardly possible for Mrs May because Brexit, 114 00:14:45,120 --> 00:14:51,840 one of the most controversial policies ever espoused by a British government, was top of the agenda. 115 00:14:51,840 --> 00:15:02,600 The result of this was to test to the edge of destruction. Some of the basic principles on which our constitution works. 116 00:15:02,600 --> 00:15:12,350 Britain is a parliamentary democracy in a more fundamental sense than is commonly realised. 117 00:15:12,350 --> 00:15:19,850 The whole structure of our institutions depends on parliament being the ultimate decision maker. 118 00:15:19,850 --> 00:15:32,570 This is because of the way in which uniquely amongst European countries, our democracy evolved without a break out of a monarchical constitution. 119 00:15:32,570 --> 00:15:38,120 Walter Badgett described Britain as a disguised republic. 120 00:15:38,120 --> 00:15:48,890 The Crown has extraordinarily wide powers whose actual exercise by the monarch would be quite inconsistent with a democratic constitution. 121 00:15:48,890 --> 00:15:56,030 In theory, the monarch appoints and dismisses ministers in theory. 122 00:15:56,030 --> 00:16:06,980 The Monarch summons, dissolves and prorogue parliament. In theory, the monarch consents to parliamentary legislation without which it is invalid. 123 00:16:06,980 --> 00:16:14,630 In theory, the Monarch conducts the international relations of the United Kingdom that these 124 00:16:14,630 --> 00:16:21,890 relics of absolute monarchy have been limited by convention since the 18th century. 125 00:16:21,890 --> 00:16:29,030 So by convention, the prerogative powers of the Crown are actually exercised exclusively by her ministers, 126 00:16:29,030 --> 00:16:34,250 who are answerable for that exercise to parliament and not to her. 127 00:16:34,250 --> 00:16:35,840 By convention, 128 00:16:35,840 --> 00:16:46,010 the monarch must appoint ministers who commands the confidence of the House of Commons and may not retain the services of ministers who have lost it. 129 00:16:46,010 --> 00:16:51,530 By convention, the monarch does not veto parliamentary legislation. 130 00:16:51,530 --> 00:16:57,200 We are only a democracy because of these conventions. 131 00:16:57,200 --> 00:17:03,770 That combined effect is that the legitimacy of governmental action depends entirely 132 00:17:03,770 --> 00:17:11,450 on parliamentary sentiment in overtly presidential constitutions like those, 133 00:17:11,450 --> 00:17:14,780 for example, of the United States or France. 134 00:17:14,780 --> 00:17:24,950 There are constitutional documents from which the executive can derive legitimacy for its acts independently of Legislature. 135 00:17:24,950 --> 00:17:29,240 But there is nothing equivalent in Britain now. 136 00:17:29,240 --> 00:17:35,180 That admittedly is not how most people think about these things. 137 00:17:35,180 --> 00:17:41,990 In general elections, most people do not regard themselves as voting for an MP. 138 00:17:41,990 --> 00:17:52,520 They regard themselves as voting for a government. Parliament is just part of the mechanics for giving effect to their choice. 139 00:17:52,520 --> 00:18:01,010 But there are obvious reasons why it is important to stick to the constitutional view and not the popular one. 140 00:18:01,010 --> 00:18:07,670 One reason is that the popular view doesn't even work on its own terms. 141 00:18:07,670 --> 00:18:15,680 Very few British governments have come to power with an absolute majority of the votes cast at a general election. 142 00:18:15,680 --> 00:18:20,180 They've all been minority governments in electoral terms. 143 00:18:20,180 --> 00:18:29,030 The first past the post system, however, commonly means that they will have an absolute majority, but only in parliamentary terms. 144 00:18:29,030 --> 00:18:39,410 There is also, I think, a more fundamental reason. The diversity of opinion amongst MPs, even within a single political party, 145 00:18:39,410 --> 00:18:48,890 is an important part of the process by which governments achieve the broadest possible basis of consent for their policies. 146 00:18:48,890 --> 00:18:55,010 The popular view of the electoral process would confer a despotic power on ministers 147 00:18:55,010 --> 00:19:00,920 constrained only by their fear of retribution at the polls at the next election, 148 00:19:00,920 --> 00:19:04,700 which may be a long time away. 149 00:19:04,700 --> 00:19:18,170 Conventions are rules of practise, which are not necessarily legally binding, but which it would be politically costly to ignore. 150 00:19:18,170 --> 00:19:26,450 The dependence of our constitution on conventions is often presented as an eccentricity of the United Kingdom. 151 00:19:26,450 --> 00:19:34,140 In fact, all constitutions without exception depends to some extent on conventions. 152 00:19:34,140 --> 00:19:43,220 Law is never enough, even in a highly formal and law based constitution like that of the United States. 153 00:19:43,220 --> 00:19:51,140 The importance of conventions becomes obvious when you see what happens when they are cast aside. 154 00:19:51,140 --> 00:20:02,120 The world is full of countries whose democratic constitutions have been subverted entirely legally by governments set on exploiting legal. 155 00:20:02,120 --> 00:20:12,610 Forms in order to undermine Democratic substance. Chile, Peru, Venezuela, Hungary, Turkey, Russia. 156 00:20:12,610 --> 00:20:19,720 The list gets longer every year, but although conventions matter everywhere, 157 00:20:19,720 --> 00:20:27,520 they are particularly important in an informal and political constitution such as the British one. 158 00:20:27,520 --> 00:20:40,570 In our system, they are the main barrier against the ministerial despotism, which would otherwise follow in our cuisine monarchical constitution. 159 00:20:40,570 --> 00:20:50,680 The problem about constitutional conventions is that they depend on a shared political culture. 160 00:20:50,680 --> 00:21:00,490 A shared political culture means the mutual acceptance that the Constitution must be made to work in the interests not just of one side, 161 00:21:00,490 --> 00:21:10,600 but of the system as a whole. It means a common sentiment about what are the proper limits of political propriety. 162 00:21:10,600 --> 00:21:16,690 It means that not everything that you can get away with legally should be done. 163 00:21:16,690 --> 00:21:26,200 All of this requires a culture which accepts pluralism and diversity of opinion in which opponents are not enemies, 164 00:21:26,200 --> 00:21:32,680 but fellow citizens who disagree and with whom it is necessary to engage. 165 00:21:32,680 --> 00:21:42,040 Now, faced with a parliament which rejected the government's blueprint for relations with the EU after Brexit, 166 00:21:42,040 --> 00:21:52,870 both Mrs May's and Mr Johnson's government's claims an alternative source of constitutional legitimacy displacing parliament, 167 00:21:52,870 --> 00:21:57,430 which was based on the results of the referendum. 168 00:21:57,430 --> 00:22:04,900 Now I have already explained why the referendum, although it was undoubtedly a powerful political argument, 169 00:22:04,900 --> 00:22:11,380 was not and never could be a source of constitutional legitimacy. 170 00:22:11,380 --> 00:22:12,850 The Constitution, in fact, 171 00:22:12,850 --> 00:22:23,500 showed itself to be remarkably resilient in the face of what was a threat to the fundamental assumptions on which it has operated for centuries. 172 00:22:23,500 --> 00:22:29,980 Its famous flexibility enabled it to fight back on two main fronts. 173 00:22:29,980 --> 00:22:33,760 One was the procedures of the House of Commons. 174 00:22:33,760 --> 00:22:44,320 They were significantly changed by Speaker Bercow, with the support of a majority of the House, including an important section of the governing party. 175 00:22:44,320 --> 00:22:52,390 The other was the courts. The courts gave legal effect to the traditional understanding of the role of parliament, 176 00:22:52,390 --> 00:22:59,740 which the government believed to be non-binding and which it has resolved to discard. 177 00:22:59,740 --> 00:23:10,990 The procedures of the House of Commons, arguably the most arcane part of our constitution, but they are a critically important part. 178 00:23:10,990 --> 00:23:19,270 They determine in important respects the relationship between the government and the Legislature. 179 00:23:19,270 --> 00:23:28,210 The British Parliament and other parliaments on the Westminster model are unusual amongst democratic legislatures. 180 00:23:28,210 --> 00:23:36,250 Parliament is not just a lawmaker and an external check on government, it is itself an instrument of government. 181 00:23:36,250 --> 00:23:43,930 Its main function is to support the government or to change it for another which it can support. 182 00:23:43,930 --> 00:23:50,170 And that is reflected in the fact that in the Westminster model, unlike other legislative models, 183 00:23:50,170 --> 00:23:55,780 ministers actually sit in parliament together with their parliamentary private secretaries. 184 00:23:55,780 --> 00:24:00,580 They currently comprise about a fifth of the House of Commons. 185 00:24:00,580 --> 00:24:09,430 It is reflected also in the fact that the ministry is selected for its command of a sufficient majority in the House of Commons, 186 00:24:09,430 --> 00:24:12,130 and it's reflected in the House's rules. 187 00:24:12,130 --> 00:24:22,600 Standing Order 14 of the House of Commons provides that, with limited exceptions, government business shall have precedence at every sitting. 188 00:24:22,600 --> 00:24:31,540 Since at least the beginning of the 20th century, the parliamentary agenda has been decided by the government. 189 00:24:31,540 --> 00:24:38,080 The leader of the House. A government minister puts forward business motions. 190 00:24:38,080 --> 00:24:46,990 The opposition cannot normally put forward its own business motions, nor can it seek to amend the government's ones. 191 00:24:46,990 --> 00:24:52,870 Now, these procedures do not sit well with minority governments. 192 00:24:52,870 --> 00:24:59,560 The whole basis and their sole justification is the assumption that the government 193 00:24:59,560 --> 00:25:06,360 commands a sufficient majority in the House of Commons to get its business through. 194 00:25:06,360 --> 00:25:10,030 The governments of the last parliament. 195 00:25:10,030 --> 00:25:18,130 Well, in a most unusual position, the House of Commons professed to have confidence in Her Majesty's government, 196 00:25:18,130 --> 00:25:25,240 but not in its only significant policy in the face of this difficulty. 197 00:25:25,240 --> 00:25:32,470 Mrs May's government engaged in what can only be described as a crude piece of blackmail. 198 00:25:32,470 --> 00:25:43,510 It tried to force MPs to support its proposals by using its control over the parliamentary agenda in order to stifle anybody else's. 199 00:25:43,510 --> 00:25:55,780 The calculation was that in the face of the Article 50 deadline and the risks of a no deal Brexit, MPs would be forced to submit for fear of worse. 200 00:25:55,780 --> 00:26:04,660 Now that strategy was circumvented by Speaker Bercow, Burka is a controversial figure. 201 00:26:04,660 --> 00:26:13,120 I'm sure I did need to explain why, but this country owes him a very great debt because he adapted the procedures of 202 00:26:13,120 --> 00:26:19,150 the House of Commons to accommodate the problems provoked by minority government. 203 00:26:19,150 --> 00:26:25,720 The speaker is the servant of the House of Commons. He is not the servant of the government, 204 00:26:25,720 --> 00:26:36,020 and it isn't his job to make things easier for a government whose policies do not have the support of the House in December 2018. 205 00:26:36,020 --> 00:26:49,510 Bercow departed from the normal practise by allowing MPs to amend government business motions and put forward that own programme in September 2019, 206 00:26:49,510 --> 00:26:56,290 during the brief period between the return of Parliament from its summer recess and its prorogation. 207 00:26:56,290 --> 00:27:07,750 A week later, the government deliberately declined to move any business motions so as to frustrate any attempt to amend them in that way. 208 00:27:07,750 --> 00:27:14,800 Burke, who allowed private members to take control of the order paper under Standing Order 24, 209 00:27:14,800 --> 00:27:21,430 which provides for emergency debates and had never previously been used for such a purpose. 210 00:27:21,430 --> 00:27:29,100 The speaker allowed it to be used to make time for the so-called BEN Act to be tabled and passed. 211 00:27:29,100 --> 00:27:35,310 Both of these innovations left the government speechless with rage. 212 00:27:35,310 --> 00:27:47,100 But both, as it seems to me, were absolutely necessary to cope with the problems of having a minority government in a representative democracy. 213 00:27:47,100 --> 00:27:58,440 Booked by the speakers inventive approach to procedure, the government resorted to proroguing parliament that provoked what was perhaps the most 214 00:27:58,440 --> 00:28:04,020 controversial of all the constitutional developments arising from the Brexit crisis, 215 00:28:04,020 --> 00:28:17,250 namely the intervention of the courts. A prorogation was a much more significant step in September 2019 than it would normally have been. 216 00:28:17,250 --> 00:28:25,890 Normally, a major change in our law requires some positive action from parliament, usually a statute. 217 00:28:25,890 --> 00:28:29,910 But under Article 50 of the EU treaty, 218 00:28:29,910 --> 00:28:39,720 Britain would automatically leave the EU on the thirty first of October 2019 with or without a satisfactory access agreement. 219 00:28:39,720 --> 00:28:42,480 If Parliament did nothing, 220 00:28:42,480 --> 00:28:51,960 the prorogation of Parliament was conceived as a way of ensuring that it did nothing for long enough to achieve this seismic change, 221 00:28:51,960 --> 00:28:58,470 notwithstanding strong parliamentary opposition as it happens. 222 00:28:58,470 --> 00:29:03,060 This result was prevented partly by the Benn Act, 223 00:29:03,060 --> 00:29:08,910 which was passed in a great hurry after the government announced its plan to prorogue and 224 00:29:08,910 --> 00:29:17,100 partly by the Supreme Court if the government had been right on the question of principle. 225 00:29:17,100 --> 00:29:26,220 It could have prorogue Parliament before the Benn Act was passed and indeed it could have extended the prorogation beyond the twenty first of October. 226 00:29:26,220 --> 00:29:33,060 The government's decision to prorogue Parliament was not exactly a breach of convention. 227 00:29:33,060 --> 00:29:39,780 The power of prorogation is an ancient power. It dates back to the mediaeval origins of parliament. 228 00:29:39,780 --> 00:29:50,160 It had historically been used for a wide variety of purposes, including some obviously political ones in England. 229 00:29:50,160 --> 00:30:00,420 John Major provoked prorogued Parliament in 1997 in order to forestall a debate on the Cash for Questions scandal. 230 00:30:00,420 --> 00:30:06,390 More recently, in 2008, the Prime Minister of Canada, Stephen Harper, 231 00:30:06,390 --> 00:30:15,990 prorogued Parliament in order to pre-empt a motion of no confidence after his coalition partners deserted him and joined the opposition, 232 00:30:15,990 --> 00:30:25,710 thereby depriving him of his majority. But although prorogation was not a breach of convention, 233 00:30:25,710 --> 00:30:35,670 it clearly was a gross breach of the shared political culture which placed parliament at the centre of the political system. 234 00:30:35,670 --> 00:30:46,040 It was a direct assertion of executive power to force through a policy which Parliament opposed without its authority. 235 00:30:46,040 --> 00:30:55,460 There was no doubt in principle that's an exercise of the royal prerogative can be judicially reviewed. 236 00:30:55,460 --> 00:31:01,100 That was established in a famous case before the law lords in 1984. 237 00:31:01,100 --> 00:31:09,380 However, for it to be quashed, there has got to be some legal criterion by which it can be found wanting. 238 00:31:09,380 --> 00:31:12,890 Political outrage is not enough. 239 00:31:12,890 --> 00:31:24,850 So the decision to prorogue Parliament faced the Supreme Court with as fundamental a question as any which a British court has ever had to consider. 240 00:31:24,850 --> 00:31:35,020 The sole basis on which we are entitled to call ourselves a parliamentary democracy is that governments are answerable to parliament. 241 00:31:35,020 --> 00:31:43,300 The question was whether this was a principle of law and therefore binding were a mere matter of political sentiment, 242 00:31:43,300 --> 00:31:52,570 which the government was at liberty to ignore. The court held as we know that it was a principle of law. 243 00:31:52,570 --> 00:31:58,240 Mr Rees-Mogg is said to have described this as a constitutional coup. 244 00:31:58,240 --> 00:32:05,860 This strikes me as rather extravagant. The prime minister is a public officer. 245 00:32:05,860 --> 00:32:10,000 The power to prorogue Parliament is a public power. 246 00:32:10,000 --> 00:32:20,180 The common law has always been reluctant to recognise that a public officer can exercise a public path without being accountable to anyone at all. 247 00:32:20,180 --> 00:32:24,280 Apart from himself, not to the monarch practise. 248 00:32:24,280 --> 00:32:29,260 He is himself exercising the monarch's powers, not to the electorate, 249 00:32:29,260 --> 00:32:34,180 because the electorate has no institutional means of holding the government to account. 250 00:32:34,180 --> 00:32:40,210 Otherwise than through parliament, not to parliament because it would have been prorogued, 251 00:32:40,210 --> 00:32:47,830 the effect would have been to transform a public power into a personal privilege of the prime minister. 252 00:32:47,830 --> 00:32:56,020 Now I have been a vocal critic of the tendency of the courts to arrogate to themselves decisions 253 00:32:56,020 --> 00:33:03,020 which are properly matters for political debate and for parliamentary accountability. 254 00:33:03,020 --> 00:33:05,680 But this was completely different. 255 00:33:05,680 --> 00:33:15,430 The Supreme Court intervened not to claim decision making powers for judges, but to safeguard the decision making powers of parliament. 256 00:33:15,430 --> 00:33:24,730 It reminded us that under our constitution, the government's sole source of legitimacy is the support of the House of Commons. 257 00:33:24,730 --> 00:33:32,020 This was something that the government had been inclined to overlook in informal times. 258 00:33:32,020 --> 00:33:34,990 This question would have gone nowhere in the other courts. 259 00:33:34,990 --> 00:33:44,740 It would have been resolved in accordance with a shared understanding of the political community about the limits of political propriety. 260 00:33:44,740 --> 00:33:53,350 But what happens if that understanding breaks down through the courts simply stand by and say, Oh dear me, 261 00:33:53,350 --> 00:34:03,190 some perhaps most conventional assumptions about politics do not lend themselves to judicial enforcement, 262 00:34:03,190 --> 00:34:12,940 but others are so fundamental to the democratic character of our constitution that their destruction would leave an intolerable void. 263 00:34:12,940 --> 00:34:19,850 And this was such a case. By September 2019, 264 00:34:19,850 --> 00:34:28,100 the impossibility of sidelining parliament and the absence of a majority in parliament for any of the alternative 265 00:34:28,100 --> 00:34:37,100 solutions of the European conundrum had combined to bring the business of the moment to a standstill. 266 00:34:37,100 --> 00:34:44,090 The traditional safety valve in this situation is a dissolution and a general election 267 00:34:44,090 --> 00:34:50,600 waterbed shirt again described this as an appeal from one parliament to the next. 268 00:34:50,600 --> 00:34:54,980 Brexit was the major issue at the resultant election. 269 00:34:54,980 --> 00:35:03,080 The scale of the conservative victory, in my view, confers democratic legitimacy on the government's Brexit policy, 270 00:35:03,080 --> 00:35:08,000 something which the referendum has signalled they failed to do. 271 00:35:08,000 --> 00:35:13,970 The referendum campaign had been fought in a fog of ignorance and the cacophony of 272 00:35:13,970 --> 00:35:20,830 tendentious and unverifiable claims about what the consequences of leaving the EU might be. 273 00:35:20,830 --> 00:35:27,320 It also failed to address the question of what our future relations with the EU were to be like. 274 00:35:27,320 --> 00:35:32,510 None of this was true of the general election, but we have just had. 275 00:35:32,510 --> 00:35:38,630 We are certainly not obliged to agree with the decision to leave the European Union, 276 00:35:38,630 --> 00:35:44,300 but I think that we do have to accept that this is what most of our fellow citizens want. 277 00:35:44,300 --> 00:35:55,730 Whatever the consequences. So what about the future with an overall majority of you? 278 00:35:55,730 --> 00:36:03,680 The government will not need to play fast and loose with constitutional principle in order to get its way. 279 00:36:03,680 --> 00:36:14,600 It would be agreeable to think that as a result, the breakdown of political culture in the past three years was just a passing phase. 280 00:36:14,600 --> 00:36:26,690 There are unfortunately, signs that that may be too optimistic. The first of them concerns the organisation of political parties. 281 00:36:26,690 --> 00:36:31,880 Political parties have a critical function in a parliamentary democracy. 282 00:36:31,880 --> 00:36:40,940 Politics is a marketplace. Parties mediate between the public and the states in their search for a slate of policies which 283 00:36:40,940 --> 00:36:48,560 can attract the widest possible range of support and maximise their electoral prospects. 284 00:36:48,560 --> 00:36:55,280 Parties modify their offering over time in response to changes of public sentiment. 285 00:36:55,280 --> 00:37:02,120 But the political market has taken a serious knock over the past few years. 286 00:37:02,120 --> 00:37:08,690 The problem arises mainly from the tiny membership rolls of constituency associations, 287 00:37:08,690 --> 00:37:12,950 which constitute the basic building blocks of political parties. 288 00:37:12,950 --> 00:37:21,620 Now this has happened over a long period. It began long before the Brexit crisis, some 50 or 60 years ago. 289 00:37:21,620 --> 00:37:27,650 It has happened partly as a result of changes in the patterns of sociability and 290 00:37:27,650 --> 00:37:34,910 partly as a result of the more fickle and less tribal allegiance of most voters. 291 00:37:34,910 --> 00:37:41,150 But the ironic result of the people becoming less tribal about politics is that the political 292 00:37:41,150 --> 00:37:48,560 parties have become more so because of the dwindling membership rolls of constituency associations. 293 00:37:48,560 --> 00:37:55,730 It is too easy for small but well organised groups to take over political parties at constituency level, 294 00:37:55,730 --> 00:38:05,360 as momentum has taken over much of the Labour Party and as UKIP and the Brexit Party have taken over much of the Conservative Party, 295 00:38:05,360 --> 00:38:11,690 constituency associations have immense power. They select parliamentary candidates. 296 00:38:11,690 --> 00:38:22,310 They make the ultimate choice of the party's leader in the House of Commons interests, almost by definition, activists and zealots. 297 00:38:22,310 --> 00:38:32,420 They narrow the party's offering. They limit the choices available to the electorate to relatively extreme positions. 298 00:38:32,420 --> 00:38:41,660 This problem is particularly acute when it happens to both of the major political parties simultaneously. 299 00:38:41,660 --> 00:38:53,090 In a famous lecture delivered in 1976, Lord Hailsham describes the British Constitution as an elective dictatorship. 300 00:38:53,090 --> 00:39:00,950 This, he said, was because of the immense power possessed by a government with an overall majority in the House of Commons. 301 00:39:00,950 --> 00:39:05,840 Lord Hailsham was, I think, completely wrong in 1976. 302 00:39:05,840 --> 00:39:16,070 He looked only at the mechanics of party discipline in the House of Commons and not of the process by which party policy is actually made. 303 00:39:16,070 --> 00:39:25,580 Traditionally, parties have been big tents or broad churches, depending on your ecclesiastical term of vocabulary. 304 00:39:25,580 --> 00:39:38,150 They have not been cramped bunkers or narrow sects. The operation of the political market means that party policy is usually a compromise, 305 00:39:38,150 --> 00:39:42,650 not just a compromise between different groups within the party, 306 00:39:42,650 --> 00:39:50,840 but a compromise with the policy platforms of other parties whose close it is electorally desirable to steal. 307 00:39:50,840 --> 00:39:53,810 That's how the political market works. 308 00:39:53,810 --> 00:40:05,660 It is fundamental to the ability of a democracy to accommodate dissent and to enable us to live together as a single political community. 309 00:40:05,660 --> 00:40:16,070 This is why the narrowing of the intellectual base of both major national parties is such a significant development. 310 00:40:16,070 --> 00:40:21,470 By limiting the electorate's choices to relatively extreme positions, 311 00:40:21,470 --> 00:40:31,610 the polarisation of politics disables the political market and obstructs the process by which we accommodate dissent. 312 00:40:31,610 --> 00:40:43,940 It means that Lord Hailsham was warning about elective dictatorships, which was not justified in his day may shortly be justified in us. 313 00:40:43,940 --> 00:40:55,190 The polarisation of politics has proved extremely destructive of the way that politics work to accommodate a wide range of opinions. 314 00:40:55,190 --> 00:40:59,960 But it's also, I think, systematic of something more sinister than that, 315 00:40:59,960 --> 00:41:07,550 which I hope it is not too melodramatic to call it a developing totalitarian tendency. 316 00:41:07,550 --> 00:41:15,170 There has been a growing intolerance of dissent and a tendency to deny the legitimacy of opposition. 317 00:41:15,170 --> 00:41:17,690 Let's look at the signs. 318 00:41:17,690 --> 00:41:28,850 First of all, there was the consistent habit of shooting the messenger without engaging with the message Governor of the Bank of England, 319 00:41:28,850 --> 00:41:38,750 the British Permanent Representative to the EU, the civil service authors of various projections of the economic impact of Brexit. 320 00:41:38,750 --> 00:41:42,260 The assumptions underlying Operation Yellowhammer, 321 00:41:42,260 --> 00:41:51,710 the contingency plan for a no deal Brexit have all expressed views based on a careful analysis of evidence. 322 00:41:51,710 --> 00:41:57,650 None of them was met by a reasoned or evidence based refutation. 323 00:41:57,650 --> 00:42:03,320 Instead, they were summarily rejected for no other reason than that. 324 00:42:03,320 --> 00:42:09,590 They did not suit the public position of those who wished to leave the EU come what may, 325 00:42:09,590 --> 00:42:16,910 the authors said, must be Remainers and therefore one need not to engage with their views. 326 00:42:16,910 --> 00:42:20,060 In the case of the governor of the Bank of England, 327 00:42:20,060 --> 00:42:29,450 it was seriously suggested by Mr Rees-Mogg that he had no business to express a view on the subject at all. 328 00:42:29,450 --> 00:42:37,190 Secondly, there was the expulsion of 21 MPs from the Conservative Party for failing to support 329 00:42:37,190 --> 00:42:44,480 the government in its willingness to risk a no deal exit in negotiations with the EU. 330 00:42:44,480 --> 00:42:51,530 These MPs were prevented from fudging the election as the Conservatives that they undoubtedly were, 331 00:42:51,530 --> 00:43:00,980 and all of those who tried to fight for their seats as independents were defeated by a more compliant government candidates. 332 00:43:00,980 --> 00:43:07,620 This was not an ordinary measure of party discipline. It was a political purge. 333 00:43:07,620 --> 00:43:12,200 Now, of course, political parties have always had this power, 334 00:43:12,200 --> 00:43:19,850 but they have recoiled from using it in order to keep their electoral appeal as broad as possible. 335 00:43:19,850 --> 00:43:25,880 The present government fought the last election on the basis that they didn't need a 336 00:43:25,880 --> 00:43:32,960 broad appeal because the polarisation of politics would enable them to win without one. 337 00:43:32,960 --> 00:43:37,760 As it turned out, they were absolutely right about that. 338 00:43:37,760 --> 00:43:44,750 Now this has been mainly an issue in the Conservative Party, but the Labour Party has not been far behind. 339 00:43:44,750 --> 00:43:54,620 Last July, it was reported that 70 Labour MPs who were thought to be hostile to momentum were facing the threat of this election. 340 00:43:54,620 --> 00:44:01,130 They were saved from that ordeal by the early onset of the general election. 341 00:44:01,130 --> 00:44:09,980 This kind of approach from dominant groups in both major parties suggests that the extraordinarily narrow political 342 00:44:09,980 --> 00:44:20,000 base of the constituency associations is already beginning to lead to a more or third authoritarian political style. 343 00:44:20,000 --> 00:44:25,220 Thirdly, there was the present government's successful, but I think, 344 00:44:25,220 --> 00:44:32,150 disreputable argument that parliament and the courts were frustrating the will of the people. 345 00:44:32,150 --> 00:44:40,850 This was an attempt to capitalise on anti political feelings which have been mounting in most Western democracies for many years. 346 00:44:40,850 --> 00:44:48,620 But whatever we may think about our politicians, we cannot have liberty without democracy or democracy, 347 00:44:48,620 --> 00:44:57,230 without politics or politics, without politicians to denounce politics as anti-democratic. 348 00:44:57,230 --> 00:45:07,820 Is therefore not just a contradiction in terms. It is bound to lead to a more authoritarian kind of government, which we will not like. 349 00:45:07,820 --> 00:45:19,580 Fourthly, there is the attack on the judiciary. The prime minister has said that his proposals will distinguish between judicial review 350 00:45:19,580 --> 00:45:25,970 designed to protect ordinary citizens from oppressive governmental acts and judicial review, 351 00:45:25,970 --> 00:45:36,200 which is really politics by other means. Now, as I sought to explain in my Reith lectures, there is a real problem about judicial review. 352 00:45:36,200 --> 00:45:42,470 It has tended to intrude into areas that properly belong to parliament and to ministers responsible to. 353 00:45:42,470 --> 00:45:51,320 Parliaments, but I am not sure that when the prime minister talks about politics by other means, he means the same thing as I do. 354 00:45:51,320 --> 00:46:00,830 I suspect that what he means is cases with important political implications whose decision gets in the way of government plans. 355 00:46:00,830 --> 00:46:11,330 This part of the government's programme has quite obviously been provoked by resentment of the Supreme Court's decisions in the two Gina Miller cases. 356 00:46:11,330 --> 00:46:17,060 Yet those decisions did not involve the judicial usurpation of the role of Parliament. 357 00:46:17,060 --> 00:46:25,710 On the contrary, both of them defended parliament against an executive that wanted to marginalise it. 358 00:46:25,710 --> 00:46:29,880 When the government loses a judicial review, 359 00:46:29,880 --> 00:46:39,660 it is invariably because it is found to have acted illegally or to have done something that it has no power to do. 360 00:46:39,660 --> 00:46:48,660 I don't suppose that the prime minister intends to introduce legislation saying that if ministers act illegally or without legal power, 361 00:46:48,660 --> 00:46:53,130 the courts must not intervene if they did it for political reasons. 362 00:46:53,130 --> 00:47:04,710 Not even Mr Putin has done that. The problem lies not in the existence of these powers, which are essential in any civilised society. 363 00:47:04,710 --> 00:47:12,330 It lies in the enthusiasm of some judges to find that the government has acted illegally or without power. 364 00:47:12,330 --> 00:47:19,290 When the real basis of that intervention is simply that, they disapprove of the policies in question. 365 00:47:19,290 --> 00:47:24,240 I think that a change of judicial attitudes is long overdue. 366 00:47:24,240 --> 00:47:25,920 But that is not going to be achieved. 367 00:47:25,920 --> 00:47:35,280 But up to parliament, you cannot have a statute which says judges must hereafter be more respectful of the proper province of politics. 368 00:47:35,280 --> 00:47:45,990 The only way to stop courts from holding that ministers have acted illegally or without legal power is to give ministers unlimited power. 369 00:47:45,990 --> 00:47:49,560 Now it is no doubt difficulties like these, 370 00:47:49,560 --> 00:47:55,860 which explain the attorney general's call for a political element in the appointment 371 00:47:55,860 --> 00:48:03,450 or the confirmation of judges to appreciate the oddity of this suggestion. 372 00:48:03,450 --> 00:48:08,790 You have to imagine what questions might be asked of candidates. 373 00:48:08,790 --> 00:48:13,800 There would be no point in asking them whether they would judicial artists. 374 00:48:13,800 --> 00:48:23,250 They would simply answer that they would be as active as the law and the facts of the case required no more and no less. 375 00:48:23,250 --> 00:48:28,680 You could ask them whether they were tourists. You could ask them whether they will leave us. 376 00:48:28,680 --> 00:48:36,180 That would produce the kind of discreditable consequences that we have seen for many years in the United States, 377 00:48:36,180 --> 00:48:42,510 where judges are overtly identified with the political positions of their appointees. 378 00:48:42,510 --> 00:48:46,110 Indeed, that would seem to be the object of the exercise. 379 00:48:46,110 --> 00:48:54,090 But would the present government be happy to face a bench of judges selected on overtly political grounds by the labour 380 00:48:54,090 --> 00:49:02,490 ministers who were in power from 1997 to 2010 or confirmed by the predominantly labour parliaments of that period? 381 00:49:02,490 --> 00:49:04,650 I suspect not. 382 00:49:04,650 --> 00:49:14,670 This is one of the most ill thought out ideas ever to emerge from a resentful government frustrated by its inability to do what it likes. 383 00:49:14,670 --> 00:49:19,710 It would gravely undermine public confidence in the judicial function, 384 00:49:19,710 --> 00:49:26,400 and it would deter any lawyer of stature for applying from applying for political judicial appointments. 385 00:49:26,400 --> 00:49:37,230 Much better to continue in independent practise, they will say and conserve their self-respect than participate in such a charade of independence. 386 00:49:37,230 --> 00:49:46,050 Finally, there are other minor points as straws in the wind that are sometimes as revealing as major policy statements. 387 00:49:46,050 --> 00:49:50,310 The BBC has been threatened in its financial model. 388 00:49:50,310 --> 00:49:56,310 This has happened at a time when the government is accusing the broadcaster of a bias towards the 389 00:49:56,310 --> 00:50:02,790 liberal instincts which the Conservative Party is busily trying to cut out of its own heritage. 390 00:50:02,790 --> 00:50:08,040 Ministers have conducted an organised boycott of the Today programme. 391 00:50:08,040 --> 00:50:12,660 There was the refusal to countenance a peerage for John Bercow. 392 00:50:12,660 --> 00:50:21,390 Contrary to the long standing tradition on the grounds that he stopped a minority government from behaving as if it had a majority. 393 00:50:21,390 --> 00:50:28,170 This seems to be an act of vindictive mean mindedness, which is unworthy of a government. 394 00:50:28,170 --> 00:50:32,550 These are all symptoms of a frame of mind uncomfortable with dissent, 395 00:50:32,550 --> 00:50:39,810 which feels that it is the duty of every national institution to line up behind the government's. 396 00:50:39,810 --> 00:50:47,550 The prime minister has declared his intention of reuniting Britain after the long Brexit crisis. 397 00:50:47,550 --> 00:50:57,600 I think that she is being unrealistic. People hardly ever unite around the policy, least of all one as controversial as Brexit. 398 00:50:57,600 --> 00:51:08,520 The only thing that ever has ever will unite us is a common loyalty to a way of conducting our affairs that we can respect, 399 00:51:08,520 --> 00:51:20,160 even when we disagree with the outcome. That means a process of decision making which accommodates dissent debates and a diversity of values. 400 00:51:20,160 --> 00:51:25,070 It means a process which recognises the legitimacy of opposition. 401 00:51:25,070 --> 00:51:32,540 And the government, which does not believe that the ends justify any means that are calculated to achieve them, 402 00:51:32,540 --> 00:51:41,750 that these are not just optional extras or rules of courtesy. They are fundamental to the survival of the democratic states. 403 00:51:41,750 --> 00:51:47,300 Aristotle's objection to democracy was that it was inherently unstable. 404 00:51:47,300 --> 00:51:52,480 It naturally transmuted into tyranny. It isn't the law. 405 00:51:52,480 --> 00:51:53,630 The constitutions, 406 00:51:53,630 --> 00:52:03,020 which has prevented this from happening in the century and a half during which democracy has been the prevailing system in Europe and North America. 407 00:52:03,020 --> 00:52:13,760 It is a shared political culture that culture took a very long time to come into being, but it can be destroyed in no time at all. 408 00:52:13,760 --> 00:52:34,630 Thank you for listening to me. Well, thank you very much for that brilliant and concise talk. 409 00:52:34,630 --> 00:52:39,100 I'm Louise Fawcett, I'm head of the Department of Politics and International Relations. 410 00:52:39,100 --> 00:52:45,550 Before asking you for your questions, can I just remind you of a couple of house rules? 411 00:52:45,550 --> 00:52:50,620 We are being filmed. You are on record. If you have a question, raise your hand. 412 00:52:50,620 --> 00:53:04,350 Wait for the microphone and please introduce yourself. The floor is yours. 413 00:53:04,350 --> 00:53:11,390 Thank you, gentlemen. Steve, thank you. 414 00:53:11,390 --> 00:53:23,780 All sorts of things were extremely exciting and relevant. I just there's one phrase which you didn't use, which is Her Majesty's loyal opposition. 415 00:53:23,780 --> 00:53:29,210 The admission was certainly not deliberate. And of course, 416 00:53:29,210 --> 00:53:41,690 the phrase absolutely embodies the notion that there are unwritten understandings which transcend the divisions in the House of Commons. 417 00:53:41,690 --> 00:53:54,480 And it's a phrase that has been used since the end of the 17th century. Other questions over there, so I'm pointing the foreign intervention. 418 00:53:54,480 --> 00:54:00,780 Hi, I'm Alex. Thank you for a talk. I have two questions. The first relates to the role of the opposition right now. 419 00:54:00,780 --> 00:54:09,840 You talk about the breakdown of the political conventions. Talk about there is a problem of growing authoritarianism and the present government. 420 00:54:09,840 --> 00:54:16,680 So what's in your view is the proper role of the opposition in today's political environment. 421 00:54:16,680 --> 00:54:23,670 Second question relates to the judiciary. So we now have a new leadership in Supreme Court, a Scottish, a Scottish leadership. 422 00:54:23,670 --> 00:54:36,480 Do you think that steers towards your decider that politics and judges should be reframed for politics thinking on the role of the opposition? 423 00:54:36,480 --> 00:54:46,830 I think it is too facile to say, as frequently has been said, that the role of the opposition is to oppose. 424 00:54:46,830 --> 00:54:54,990 I think it is very unfortunate that during the last parliament until the very end, 425 00:54:54,990 --> 00:55:04,260 the Labour opposition decided to oppose every proposal on principle. 426 00:55:04,260 --> 00:55:11,730 Essentially, I suspect in the belief that the resulting chaos would be blamed on the government and not on them. 427 00:55:11,730 --> 00:55:20,370 That has proved to be a really rather serious miscalculation. I don't think that it is the automatic duty of the opposition to oppose. 428 00:55:20,370 --> 00:55:30,450 I think it is the duty duty to form a view about the public interest and to stand up for that view in Parliament. 429 00:55:30,450 --> 00:55:41,580 I think that the polarisation which I have described and the retreats of both major parties into their bunkers may well be 430 00:55:41,580 --> 00:55:51,750 at least partially reversed if the Labour Party elects a leader who can be taken seriously as a potential prime minister. 431 00:55:51,750 --> 00:56:00,420 Because I think that that would represent a real threat to the government's current mode of doing business. 432 00:56:00,420 --> 00:56:06,990 It has got away with a great deal it shouldn't have got away with because of the weakness of the opposition, 433 00:56:06,990 --> 00:56:15,570 and that is partly, but not entirely a matter of personalities. As to your second question, 434 00:56:15,570 --> 00:56:32,610 and I think that it is a mistake to assume that a mere change of leadership in the Supreme Court is going to signal a change of legal approach. 435 00:56:32,610 --> 00:56:38,760 The way in which the Supreme Court decides cases is intensely deliberative. 436 00:56:38,760 --> 00:56:44,790 The president of the court is a spokesman for the court. 437 00:56:44,790 --> 00:56:46,380 When a spokesman is required, 438 00:56:46,380 --> 00:56:56,430 which isn't that often but otherwise is simply Priebus into power use and is particularly often to be found amongst the dissenters that applied, 439 00:56:56,430 --> 00:57:09,180 perhaps especially to Brenda Hale. Now there is, however, a much more general tendency, and this isn't confined to the Supreme Court. 440 00:57:09,180 --> 00:57:20,430 There's a much more general tendency at the moment to be cautious about the intrusion of judges into political issues. 441 00:57:20,430 --> 00:57:31,560 This is noticeable both in the Strasbourg Human Rights Court and in the British judiciary, where a somewhat younger generation of judges is, 442 00:57:31,560 --> 00:57:41,460 I think, more careful about the division of functions between the judiciary, the executive and the Legislature. 443 00:57:41,460 --> 00:57:47,430 No, I'm not suggesting that this is going to be a dramatic reversal of current positions, 444 00:57:47,430 --> 00:57:58,230 but I think that it will lead to a very gradual change of attitudes, which to my mind, is a change in the right direction. 445 00:57:58,230 --> 00:58:06,060 Right at the back. Hi, my name is Arsalan Barzani, and I'm an embassy student at St. Anthony's College. 446 00:58:06,060 --> 00:58:10,920 I really enjoyed your lectures, Lord Sumption. And I know and one of the podcasts you've done, 447 00:58:10,920 --> 00:58:16,140 you mentioned you didn't think you've made much of a difference that the law lords became the Supreme Court. 448 00:58:16,140 --> 00:58:20,130 But given that the Supreme Court ruled on the prorogation of Parliament, 449 00:58:20,130 --> 00:58:26,440 would it have made any difference if the Lords being in parliament had to take up this issue? 450 00:58:26,440 --> 00:58:29,050 It would have made absolutely no difference at all. 451 00:58:29,050 --> 00:58:37,060 I think one of the strangest criticisms which has been made of the Supreme Court is that they have got too big for 452 00:58:37,060 --> 00:58:43,930 their boots as a result of becoming the Supreme Court instead of the Judicial Committee of the House of Lords. 453 00:58:43,930 --> 00:58:50,080 The powers of the Supreme Court are identical to those of the law lords. 454 00:58:50,080 --> 00:58:55,030 The procedures of the Supreme Court are identical to those of the law lords. 455 00:58:55,030 --> 00:59:00,550 The way that they decide cases are identical, the kind of people who sit are identical. 456 00:59:00,550 --> 00:59:09,670 There is no case that the Supreme Court has decided since its creation in 2009, which would not in comparable circumstances, 457 00:59:09,670 --> 00:59:20,500 have been decided in exactly the same way by the by the House of Lords Judicial Committee. 458 00:59:20,500 --> 00:59:33,160 There's another hand at the back foot in front. Actually, the well, OK, then the next person making the assumption, my name's Neil McIntosh. 459 00:59:33,160 --> 00:59:41,470 I'm retired after a career spent hovering between public and private sectors niches of what was acceptable. 460 00:59:41,470 --> 00:59:50,470 Can you speak up a bit? Sorry. Yes. There's two ways forward. 461 00:59:50,470 --> 00:59:58,150 I think from what you've said today. One is that we all join political parties and try to. 462 00:59:58,150 --> 01:00:12,010 Manipulate them back to. The sort of fight is that you seem to be positive about, the other is to be involved in activities which. 463 01:00:12,010 --> 01:00:20,880 And. Throw light on the. The activities of politicians known for three years involved with the Freedom of Information campaign, 464 01:00:20,880 --> 01:00:24,570 for example, in the campaign to Freedom of Information. 465 01:00:24,570 --> 01:00:36,840 Oh yes. Well, I don't think the Freedom of Information Act or requests made under it is going to alter the basic problem 466 01:00:36,840 --> 01:00:45,420 of powerful political parties dependence on a very narrow intellectual base at constituency level. 467 01:00:45,420 --> 01:00:53,050 And I. Obviously, one solution would be for people to join political parties. 468 01:00:53,050 --> 01:00:59,290 I think it's unlikely that that's going to happen on the sufficiently large scale to make a difference. 469 01:00:59,290 --> 01:01:09,520 There are other possibilities, although they all have problems. One is to introduce some form of proportional representation, 470 01:01:09,520 --> 01:01:20,800 which would force parties to broaden their appeal or face the risk of fragmentation and electoral loss in consequence. 471 01:01:20,800 --> 01:01:24,940 There are serious disadvantages about systems of proportional representation. 472 01:01:24,940 --> 01:01:33,790 I think first past the post has many has had many advantages for the stability of the British state and the authority of British governments. 473 01:01:33,790 --> 01:01:39,100 But I am beginning to think that the price that we have to pay for that may be too high. 474 01:01:39,100 --> 01:01:47,320 Another possibility, which I have floated in the past is the possibility of having primaries for the selection of candidates, 475 01:01:47,320 --> 01:01:51,340 although one needs to remember that that doesn't always work. 476 01:01:51,340 --> 01:01:59,050 President Trump in the United States was became the Republican Party candidate for the presidency 477 01:01:59,050 --> 01:02:05,260 in the teeth of the establishment of his party entirely because of the primary system, 478 01:02:05,260 --> 01:02:19,720 as it now stands. So I don't think there is an easy solution, and I wish I could suggest one coming to the front narcolepsy calypso nicolaides DPR. 479 01:02:19,720 --> 01:02:25,210 You ended your wonderful lecture on the prospects for reuniting this country, 480 01:02:25,210 --> 01:02:32,950 something I care very much about as a new UK citizen, and I'm sure I'm not the only one in this room. 481 01:02:32,950 --> 01:02:44,020 But you did say that people hardly unite around a policy i.e. Brexit, but they can unite around the way we conduct our affairs. 482 01:02:44,020 --> 01:02:52,990 But couldn't we suggest that once Brexit is done in two days time, Brexit is no longer a policy. 483 01:02:52,990 --> 01:03:01,600 You do it or you don't do it. It becomes actually a question of how we conduct our affairs between the UK and the European Union. 484 01:03:01,600 --> 01:03:08,890 The extent to which we retain control versus collaborate, which judges are in charge of what. 485 01:03:08,890 --> 01:03:13,540 All of this becomes the nitty-gritty of the next phase. 486 01:03:13,540 --> 01:03:22,960 So could we not imagine or is it overly naive that indeed this country could in part reunite over the next phase? 487 01:03:22,960 --> 01:03:38,890 I think that it is desirable and it's actually happening to unite around the proposition that Brexit has a democratic 488 01:03:38,890 --> 01:03:47,200 mandate and that it is a policy which has been legitimately approved by the British public in an election. 489 01:03:47,200 --> 01:03:54,220 In the course of which it's very difficult to suggest that people were under any misapprehension about the consequences. 490 01:03:54,220 --> 01:04:03,130 So I think that recent events have confer legitimacy constitutionally on leaving the EU, 491 01:04:03,130 --> 01:04:11,230 but to say that this is a legitimate democratic decision is not the same as saying that you approve of it. 492 01:04:11,230 --> 01:04:18,700 And I do not think that it's reasonable to expect people who in many cases with considerable passion, 493 01:04:18,700 --> 01:04:25,240 believed that this was an act of folly and a gross piece of economic vandalism. 494 01:04:25,240 --> 01:04:34,240 Now, if that's the view that you take, I don't see that the results of a general election is likely to make any difference to that. 495 01:04:34,240 --> 01:04:42,010 Any more than the results of the election of a conservative government is going to make. 496 01:04:42,010 --> 01:04:52,060 Members of the Labour Party feel that everything is fine with the outcome of the points that you make in the latter 497 01:04:52,060 --> 01:05:02,020 part of your question are really directed to the substance of policy rather than to the techniques for making policy. 498 01:05:02,020 --> 01:05:14,530 And obviously, it would be sensible to do the best that one can cooperatively to ensure them a desirable outcome. 499 01:05:14,530 --> 01:05:21,970 I think probably everybody recognises that Brexit a principle is done and that certain 500 01:05:21,970 --> 01:05:30,230 parts of the Programme for Relations with the EU are effectively matches of commitments. 501 01:05:30,230 --> 01:05:36,550 But when I made that remark at the end of the lecture, which I really meant, 502 01:05:36,550 --> 01:05:49,190 is that there are some attitudes, some constitutional principles which enable people to accept outcomes even. 503 01:05:49,190 --> 01:05:55,130 As legitimate, even when they disagree, and I think that is absolutely the vital factor, 504 01:05:55,130 --> 01:06:03,320 and what does amaze me is a tendency for the present government to feel that actually what's 505 01:06:03,320 --> 01:06:11,150 involved in unity is simply lining up behind an agenda regardless of one's one's own views. 506 01:06:11,150 --> 01:06:22,120 It's a delegitimization of contrary opinions, which I regard as inconsistent with basic democratic practise. 507 01:06:22,120 --> 01:06:28,990 There's someone holding the microphone back and then we'll come back to the front. Tom's an education professor. 508 01:06:28,990 --> 01:06:33,460 I should be very interested to hear your views on the way all schools and 509 01:06:33,460 --> 01:06:39,190 colleges now have by law to teach something called fundamental British values. 510 01:06:39,190 --> 01:06:49,510 And these values are defined by the government as democracy, the rule of law, tolerance and individual responsibilities. 511 01:06:49,510 --> 01:07:00,360 In fact, a friend of mine has done some research recently and found that the major British values were to the queen fish and chips and cooing. 512 01:07:00,360 --> 01:07:07,980 But those on the home curriculum, some teachers, while most teachers that I know are very confused. 513 01:07:07,980 --> 01:07:17,550 How are they to teach democracy and the rule of law in this present situation that we've just been through a Brexit post-Brexit? 514 01:07:17,550 --> 01:07:22,700 Not to mention Britain's place in the near future in the globalised world? 515 01:07:22,700 --> 01:07:31,440 Well, I think that citizenship classes are sometimes called extremely difficult to manage, 516 01:07:31,440 --> 01:07:38,550 even when it's not in the aftermath of a bitterly fought a political crisis. 517 01:07:38,550 --> 01:07:51,030 But you don't have intention those things to inject an element of political partisanship into them, and it's probably desirable not to do so. 518 01:07:51,030 --> 01:07:56,670 So if you have to teach them, I don't see that there's a particular difficulty in teaching them right now. 519 01:07:56,670 --> 01:08:02,130 I would hope that that one would teach exactly the values that you describe. 520 01:08:02,130 --> 01:08:17,310 I mean, the first four and not the second rule and that that might encourage some people to see the direction in which we are going and to change it. 521 01:08:17,310 --> 01:08:26,460 It was a couple of hands at the front, I think maybe not the three or four. 522 01:08:26,460 --> 01:08:36,390 What would your reaction be to parliament by statutes undoing the UK Supreme Court and bringing it back to the law lords, 523 01:08:36,390 --> 01:08:42,300 as has been suggested in the conservative manifesto by Dominic Cummings? 524 01:08:42,300 --> 01:08:46,800 Well, my reaction to that would be that it would be a complete waste of time and money and not 525 01:08:46,800 --> 01:08:54,990 worth arguing about because the unless the powers of the Supreme Court are changed, 526 01:08:54,990 --> 01:09:05,470 it's that whatever label you give is and whether whichever side of Parliament Square it sits, the result is going to be exactly the same. 527 01:09:05,470 --> 01:09:11,890 One more question on this. Thank you, Lord Hampton. My name is Laura Stockdale, I'm a graduate student. 528 01:09:11,890 --> 01:09:20,890 I wanted to ask your opinion on compulsory voting and how that might have affected the outcome of the referendum and also is a 529 01:09:20,890 --> 01:09:31,810 potential solution to the problems that you've described in relation to political parties being concentrated around small minorities. 530 01:09:31,810 --> 01:09:40,810 And in Australia, it's a compulsory voting is a big part of our constitutional system, and there are arguments that it does in fact, 531 01:09:40,810 --> 01:09:48,400 encourage politicians when they develop policies in the lead up to elections to be more general because they 532 01:09:48,400 --> 01:09:56,680 know that every single citizen will be voting at the ballot box and therefore a less drawn to extremes, 533 01:09:56,680 --> 01:10:01,300 as I think you used the term. Thank you. 534 01:10:01,300 --> 01:10:12,520 I don't know, and I don't think anybody knows how the results of the referendum would have been affected by compulsory voting. 535 01:10:12,520 --> 01:10:19,840 There are differences in the voting records of different groups, in particular in general elections. 536 01:10:19,840 --> 01:10:27,400 It's normal for older people to be more assiduous in voting than younger ones. 537 01:10:27,400 --> 01:10:33,250 They're a variety of reasons for that. I won't go into, but that's been a consistent pattern. 538 01:10:33,250 --> 01:10:40,150 But it doesn't seem to have been a pattern in the referendum itself, where the turnout amongst young people was, 539 01:10:40,150 --> 01:10:50,170 although somewhat lower than that of older people was was quite high on compulsory voting generally. 540 01:10:50,170 --> 01:10:59,530 I I don't feel strongly about this, but my feeling is that it's a mistake to make people vote. 541 01:10:59,530 --> 01:11:04,570 The decision not to vote is a perfectly legitimate one. 542 01:11:04,570 --> 01:11:18,040 Moreover, making people vote means that they are less likely to take the responsibility associated with voting as seriously as they otherwise would. 543 01:11:18,040 --> 01:11:27,070 I know that in Australia, you can effectively spoil your ballots and thereby register a neutral vote. 544 01:11:27,070 --> 01:11:34,180 But it seems to me that to require people to come to the polling booths not to vote is. 545 01:11:34,180 --> 01:11:40,480 Somewhat strange. Australia is not the only country with compulsory voting. 546 01:11:40,480 --> 01:11:52,480 The other notable example is Belgium, where compulsory voting produces a very high turnout in European elections. 547 01:11:52,480 --> 01:11:58,540 A species of election which in the whole of the rest of the Europe, has produced notoriously low turnouts. 548 01:11:58,540 --> 01:12:07,600 It is at least of that that has reinforced the Belgians sense of European identity 549 01:12:07,600 --> 01:12:14,980 and depending on one's point of view about an EU that may be thought a good thing. 550 01:12:14,980 --> 01:12:19,630 Thank you. I think we're out of time, but before I ask you to phone call speaker, 551 01:12:19,630 --> 01:12:26,500 can I just announce that next week's lecture same time six of February will be the road somewhere. 552 01:12:26,500 --> 01:12:31,060 The title is the road to somewhere resilient infrastructure for sustainable development. 553 01:12:31,060 --> 01:12:58,981 It's a bit of a change of tone by Professor Jim Hall, but can we all think I'll speak a little something very much.