By John Pepall
IT'S NOW FOURTEEN years since my book Against Reform was published and reviewed in these pages by John Robson. In the book I attacked all the changes to our political institutions that were being, and often still are, promoted in Canada: from Proportional Representation and a Triple-E Senate to recall of MPs, fixed election dates, and “free votes” in the House of Commons. An old journalist and editor friend thought the title was too negative. Peer reviewers complained that I did not explain the merits of the proposals I attacked. My argument was that there were none. That they were all fundamentally misconceived.
Sceptical Perspectives on the Changing Constitution of the United Kingdom (Richard Johnson and Yuan Yi Zhu, eds., Bloomsbury, 2023) tries to do for the United Kingdom what I tried to do for Canada fourteen years ago. As its title suggests, its criticisms of constitutional change in the UK over the last three decades are more qualified than mine of reform in Canada. Casting its net even more broadly than I did, its 20 contributors vary in their degree of scepticism. Some seem only sceptical of the coherence and effectiveness of the changes they discuss, and want more.
In their introduction, the editors make the case for what they call The Political Constitution. It is a commonplace that Britain has an “unwritten constitution,” which is often presented as weird and evidently unsatisfactory. Some seem to think that if there is no document called “The Constitution” a country does not have a constitution. But the British have been talking of their constitution since at least the 17th century, protesting that this or that was a threat to the constitution. In the Declaration of Independence the thirteen colonies protest that the King “has combined with others to subject us to a jurisdiction foreign to our constitution,” by which they meant the British constitution. It would be thirteen years before they had their own, written, Constitution.
Somewhat oversimplifying, the political constitution rests on the supremacy of Parliament, which can do whatever it pleases. What it can and will do is constrained by the Members, and the voters. In a legal, or written, constitution various players, the courts, an effective upper house, an executive president, can exercise vetos on what government can do. These vetos, particularly the courts’, can be exercised beyond the reach of politics, general public debate and the voters. A written constitution most often appeals to people who don’t like the politics of the day and imagine that a constitution would protect them from it. Such people tend to be on the left, though 50 years ago the Old Labour firebrand Peter Shore would have none of it saying, “I did not come into socialist politics in order to connive in the dismantling of the power of the British people.”
The first five contributors to this volume deal with developments in the administration of justice and the law. Having come into power assuring voters that it would not reverse the economic policies brought in by the Conservatives under Margaret Thatcher, Tony Blair’s Labour government embarked on a series of constitutional reforms to give some substance to its “Cool Britannia” brand. The principal legislated reforms were the ending of the Lord Chancellor’s triple role, and the establishment of the Supreme Court of the United Kingdom.
The Lord Chancellor’s triple role, as it had existed for centuries, flew in the face of the theory of the separation of powers, legislative, executive, and judicial, most famously enunciated by Montesquieu. The Lord Chancellor was Speaker of the House of Lords, a legislative function. He was a member of the cabinet and appointed judges and had other roles in the administration of justice, executive functions. And he was a chief justice, presiding over the Lords of Appeal in Ordinary, members of the House of Lords who were the final court of appeal in the UK, and the Judicial Committee of the Privy Council, judicial functions.
THIS ARRANGEMENT had worked as well as any administration of justice ever has, or ever will, but it did not satisfy the theory of the separation of powers, and the principle of judicial independence, with a party politician presiding over the highest court. So it had to go. As did the Lords of Appeal in Ordinary sitting in the legislature while performing the highest judicial functions.
So the Lord Chancellor ceased to be Speaker of the House of Lords and the Lords now elect a Lord Speaker. The Lord Chancellor may be a Lord, but most since 2005 have been MPs. He is no longer a judge, but is Justice Secretary with wider administrative responsibilities. Judges are appointed on the recommendation of a Judicial Appointments Commission, who follow a process, and are diverse and charged with promoting diversity. Gone are the days when a Lord Chancellor might simply ring up an eminent counsel and say “I’m making you a judge.”
The SCUK took over the work of Lords of Appeal in Ordinary and was provided with a grand court house near the Palace of Westminster. Some of the Lords of Appeal joined the new court while keeping their seats in the House of Lords, but new appointments, while given the title of Lord or Lady, are not members of the House of Lords.
All of this might seem an unimportant administrative rearrangement. But the effect is that the highest court is no longer working with, indeed in, a Supreme Parliament, but separately, independently, and perhaps in contest with Parliament. It gives impetus to the rise of juristocracy that has affected liberal democracies for some decades.
Making a case against Constitutional Supremacy, Brian Christopher Jones argues that constitutions, which often, like that of the United States, begin “We the People,” actually take power from the people and give it to judges. Jones has written a book arguing against written constitutions with the vivid title Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (Edward Elgar Publishing, 2022).
Jones argues that a written constitution enforced by judges discourages popular participation in politics.
Rather than acknowledging that other branches or institutions are better placed to resolve constitutional disputes or uphold constitutional norms, many judiciaries nowadays are becoming more adamant that they alone are the ultimate constitutional guardians. Legal scholars and journalists have also perpetuated this misguided idea. Whilst judiciaries do play a significant role within any democracy, this overly paternalistic development is unhealthy for democracy and downplays the critical roles of citizens, journalists, and other constitutional actors. …
The new relationship brought about by constitutional supremacy is not one of equality between law and politics, but rather law asserting itself as superior to politics.
The absence of a written constitution is not however an assurance against judicial supremacy. Carol Harlow describes “Judicial Encroachments on the Political Constitution.” These go back long before the establishment of the SCUK and are part of the general decay of the law. The judges of 30 years ago were already a different breed from the judges whose reasons I read in law school fifty years ago.
What we called administrative law in law school was known as constitutional law in the UK. It deals with decisions made by officials and bodies. At its simplest it just sees whether they have the power they purport to exercise. From there it can go on to inquire into the process by which decisions are made, whether those affected have a right to make representations, whether the decision maker should give reasons. But “judicial review” is not the same thing as an appeal. The courts are not supposed to take it upon themselves to make the decision under review. In recent decades courts in the UK became increasingly active in overturning decisions and the distinction became unclear. Even when Parliament enacted “ouster” clauses, plainly saying that decisions should not be subject to review in the courts, courts refused to apply them and went on their merry way.
WITH BREXIT THE SCUK went into overdrive. Gina Miller, a Remain activist, went to court to argue that the government could not give notice that it would leave the EU under Article 50 of the EU Treaty without an Act of Parliament authorising it to. Governments had always entered into and withdrawn from treaties without an Act of Parliament. Parliament simply passed whatever legislation was necessary after they did so. The lower courts rejected Miller’s argument, but a divided SCUK accepted it, making up new law.
When Boris Johnson advised the Queen to prorogue Parliament on Aug. 28, 2019 the law was clear, as Johnson was no doubt advised. The Queen could prorogue Parliament whenever she was so advised. Miller went to court again and after losses in lower courts the SCUK, this time unanimously, declared the prorogation invalid. It gave brief, incoherent reasons, describing its decisions as a “one off,” a phrase hitherto unknown to the law.
It was a judicial coup d’état. Apart from the Court making up the law, it flew in the face of the principle that the courts do not interfere in the workings of Parliament, which was the Queen, the Lords, and the Commons. The Queen acted as Queen in Parliament. The SCUK set itself up as supreme over them.
The two Miller cases leave all the prerogative powers of the Crown in doubt and make the Court the arbiter of when they may be used. We must fear that they will be cited in Canada.
The UK has no Charter and the courts cannot strike down Acts of Parliament. But in 2000 the Human Rights Act incorporated the European Convention on Human Rights into UK law. There is a European Court of Human Rights, which is the highest authority on interpreting the Convention, giving foreign judges a say in UK law. These institutions are separate from the EU and preceded it. The courts are to apply the Convention to all public authorities under Parliament. They cannot declare an Act of Parliament invalid, but must interpret Acts so far as possible to be consistent with the Convention and can issue a declaration of incompatibility, which Parliament can ignore if it pleases.
As Harlow writes
… it is the function of the judge when deciding a Human Rights Act case to decide whether a given act or decision amounts to a violation of the ECHR and, in holding that parliamentary legislation does not comply with Convention law, it goes very near to allowing a court to decide whether a law is a ‘good’ law or not.
In the following chapter Richard Ekins writes
For almost three decades, membership of the ECHR did not have much impact on British law, because the UK had not regressed from standards agreed in 1950. However, in the late 1970s, the ECtHR began to conceive of the ECHR as a ‘living instrument,’ thus setting in motion a decades long expansion of case law beyond the terms agreed in 1950. In the hands of the Strasbourg Court, the ECHR has thus been transformed into a dynamic treaty, which raises an ongoing risk that the UK will be held to be in breach of the ECHR, even if the breach in question turns only on newly asserted (invented) law.
The incorporation of the European Court of Human Rights into UK law by the Human Rights Act was supposed to “bring rights home” by making Parliament responsible to see that the rights were observed without ceding Parliament sovereignty to the courts. But as Ekins writes
… it is in tension with the principle of legislative freedom, for it distorts deliberation about what should be enacted, discouraging parliamentarians from taking full responsibility for legislating for the common good. … the practice that has developed is one in which the [the government] anticipates the court’s reaction and, save in unusual cases, attempts to avoid such. For supporters of the Act, this is a feature and not a bug. For my part, this is litigation risk prematurely foreclosing parliamentary deliberation.
The same dynamic, only stronger, exists in Canada where legislation is drafted with an eye to what the Supreme Court of Canada might make of it, with the bias towards what rights advocates “could argue” whether the Court would see it that way or not.
Harlow sees some hope that the Court will be more restrained in the future. She writes, “The Supreme Court over which Lord Reed presides operates in a markedly different manner and has adopted a very different style to the court that decided Miller. … The years of progressive liberalism are seemingly at an end; there has been a reversion to restraint and the formalist style of earlier years.” Reed dissented in the first Miller case, but was on the unanimous Court in the prorogation case. Put not your faith in judges.
Ekins finds hints that the UK Supreme Court might be moving towards actually finding Acts of Parliament invalid, or at least of no effect. He cites one judge, joined by two others, “openly asserting that in a future case courts might not give effect to a statutory provision ousting judicial review.” He adds “His assertions are flatly inconsistent with constitutional law and any court that refused to uphold an ouster clause would be acting unconstitutionally.” I agree, but those who do not understand a political constitution and only see a legal constitution will think that only the highest court can say what is constitutional and can, and should do whatever it damn well pleases.
Michael Foran points out that the ECHR was largely drafted by UK common law lawyers and it was thought ‘that the rights and freedoms guaranteed by the Convention “were already, in substance, fully protected in British law” but now “Common law rights are perceived to be unable to meet the requirements of a Convention inspired by common law principles … They are seen only in relief; understood in contrast to the radiant light cast by Convention rights, as pale imitations, unfit for the purposes we now expect rights to fulfil.”
IN "THE FIXED-TERM Parliaments Act 2011: Out, Out Brief Candle” Robert Craig “comes not to praise the Fixed-term Parliaments Act 2011, but to bury it.” It was, he writes, “a leading contender for the most damaging constitutional change of this period, although the competition is fierce.”
Canada has its fixed election dates both in the provinces and Ottawa, but they were drafted to keep the power of the Governor General, or the Lieutenant Governors, to dissolve parliaments when so advised. A power most notably exercised for the election of 2008. The Fixed Terms law was the result of a corrupt bargain between David Cameron’s Conservatives and Nick Clegg’s Liberal Democrats to assure the latter that they could enjoy office for a full five years as the price of their entering the Coalition. Unlike Canada’s legislation it was effective.
It remained in force after Cameron won a majority in 2015 and was thus the cause of the appalling mess at Westminster after the Brexit vote and Cameron’s resignation. Boris Johnson was faced with a House of Commons that would not let him get Brexit done, but could not be dissolved.
After that experience both Conservative and Labour wanted no more of the Fixed Terms law, and it was repealed.
The repealing act includes an “ouster clause” attempting to assure that the UK Supreme Court will not take it upon itself to decide whether a dissolution of Parliament is valid, as it took it upon itself to decide that the 2019 prorogation was not valid. Prior to 2019 no such clause would have been thought necessary as it was obviously not the Court’s business whether Parliament should be prorogued or dissolved. Now apparently anything can be the Court’s business and on past form it will not be ousted.
Rather gratuitously, Craig raises the question of the King’s “residual power” to dissolve Parliament without advice or to refuse to act against advice. Craig writes that this is now “unthinkable” and that, “No sensible person could defend the idea of hereditary power in principle.” I do. He seems unaware of the viceregal exercise of these powers elsewhere in the Commonwealth, most famously Lord Byng’s refusal of a dissolution to Mackenzie King in Canada in 1926, and Sir John Kerr’s dissolution of Parliament against Gough Whitlam’s wishes in Australia in 1975.
Their power was by appointment, not hereditary, but legally it was the same as the King’s power now. There is no reason why, in the unlikely event of a constitutional crisis in the UK, the King could not, should not, and would not have to, act. Nor any reason to think that he would not be fit to act just because he inherited his position.
THERE IS IN THE UK an anxiety to keep the monarch from having to use residual powers. Sir Alec Douglas-Home, as leader of the opposition, set up the first system for choosing Conservative leaders in 1965 partly because of concern that the Queen had been put in an awkward position in 1957 and 1963 when Eden and Macmillan resigned and she had to choose their successors.
That the King still has residuary powers is an important part of the UK’s political culture. It assures that he is not a mere figurehead and keeps the Prime Minister’s power and celebrity from going to his head.
Reviewing reforms on procedures in the House of Commons over the last fifty years Tony McNulty, a Labour MP from 1997 to 2010 and minister under Blair and Brown, writes “reformers chose petty reforms and dressed them as transformative – which they were not.” He wants substantive, well thought out reform, but does not say what that would be. Happily, he does emphasise “the role of the Commons to provide and sustain a government.”
Lord Norton of Louth, an academic who has written thirty-five books, presents “A Sceptical View of ‘Big Bang’ Reform” of the House of Lords, in which he sits as a Conservative.
There already was a “big bang” in 1999 when all but 92 of the hereditary peers lost their right to sit in the Lords. There are now about 700 life peers, and 26 bishops. A House of Lords Appointments Commission vets political appointments to the Lords and nominates some cross-bench peers. You can even apply to be a Lord.
The reform of which Norton is sceptical is basically the election of peers. This raises the prospect of a Lords emboldened by election thwarting a government based on the confidence of the House of Commons. Though the Lords can only delay the passage of legislation by one year, that can be enough to severely interfere with a government’s programme.
As it is, a Lords made up overwhelmingly of peers supposed to be appointed for merit has since 1999 become much more active. Government defeats in the Lords now run in the hundreds every year. Most of these are on small matters, but they are a serious distraction.
Norton says that the Lords expertise on a wide range of issues allows them to scrutinize and improve legislation, and hold governments to account, in many areas more effectively than the Commons. It was often rightly claimed that our Senate, before Harper’s tinkering and Trudeau’s packing it with self-important progressives, did a lot of good work in cleaning up legislation, and studying issues with more leisure, and more calmly, than the Commons could. This was before 1999 true of the Lords, and may still be true of it, but Norton puts the claim too strongly.
Norton’s ideal peer seems to be what has been called a “working peer,” who turns up regularly and busies himself with whatever is on the order paper, occasionally putting something on the order paper himself. Average attendance is less than half the number of peers, and there have long been reports of peers, who are paid a £342 a day tax free allowance for turning up, putting in an appearance just to collect it. Peers can also claim expenses and several were caught up in the 2009 expenses scandal. One good reform would be to cut the allowance. Expenses have been tightened, but are still ample. As peers have generally had successful careers, and are often receiving pensions, they should not be trying to make a living from the Lords.
Tinkering reform in the spirit of rationalism in politics now allows peers to retire, giving up their seat in the Lords, though not their title. They can also be expelled for non-attendance, as happened recently to Lord Black of Crossharbour.
A peerage used to be an honour as well as a seat in the Lords. Many life peers were not working peers. But they could turn up occasionally when they thought they had something to contribute. There are now so many quite undistinguished peers that the honour has been debased.
The new Labour government has introduced legislation to kick the remaining hereditary peers out of the Lords. The best reform would be, on the contrary, to turn the clock back to 1998 and welcome back the hereditary peers. They either don’t bother to turn up, or add a great range of experience and some eccentricity to the self-important meritocrats who make up the bulk of the active life peers.
THE LORDS SHOULD be one of what Bagehot called the “dignified” rather than the “effective” parts of the constitution. It should have little power, and exercise it rarely, but have only the influence of persuasion. Hereditary, honoured, and serving, not workers.
In “Accountability and Electoral Reform” Jasper Miles presents a strong defence of first past the post voting and criticizes all alternatives, stressing that only “FPTP offers clear accountability about where responsibility lies and gives the people of this country the most important ability, the power to remove their government.” It is a largely pragmatic argument, avoiding the technical details and fundamental theoretical flaws of electoral reform. But I was chuffed to find myself cited in company with Michael Pinto-Duschinsky and other eminent scholars.
In a chapter on delegated legislation Haley J. Hooper points to the danger of “disguised law.” Examples include “mandatory guidance,” “Requirements ‘to have regard to’ guidance” and “powers to make a ‘determination,’ to make ‘directions,’ to determine ‘arrangements,’ and to issue a ‘code of practice,’ a ‘protocol’ or a ‘public notice.’” These escape the parliamentary scrutiny that in the UK, as in Canada, formal regulations are subject to, though, as Hooper discusses, it is not very effective.
Hooper gets the 2019 prorogation case entirely wrong, seeing it as the Court vindicating the sovereignty of Parliament rather than asserting its own sovereignty over Parliament. [Note: The UK Supreme Court in “Miller II” (Sept. 24, 2019) ruled that Prime Minister Boris Johnson’s Aug. 28 advice to prorogue was “justiciable” and “unlawful.”]
Conor Casey defends the practice under which the Attorney General is a party politician and a member of the government. The practice is the same in Canada, including all the provinces. It became an issue here when Jody Wilson-Raybould, as Attorney General, was pressured by others in the government to agree to a deferred prosecution of SNC-Lavalin.
Casey refers to the Shawcross principles, much cited in Canada during the uproar. At the time I was unable to find any reference to them outside of the SNC-Lavalin context. As deferred prosecution is an inherently policy measure unknown when Sir Hartley Shawcross enunciated his principles one wonders what he would have made of it.
In the UK the Attorney General is insulated from decisions about prosecutions by the Director of Public Prosecutions, a civil servant. Sir Keir Starmer served in the position from 2008 to 2013 and got his knighthood for it. The Attorney General gives legal advice to the government.
Some question whether a party Attorney General can be trusted to give “independent” advice. The question is nonsense. When advising a given client I tried to get it right. I should never have advised a client friend in one way and said something else to a stranger client.
Others would have the Attorney General’s advice made public. One might have thought that solicitor client privilege should be observed. In 2003 advice of the Labour Attorney General Lord Goldsmith on the legality of the Iraq war was leaked and subsequently all his advice on the issue was released. Some contended that he tailored his advice to the government’s wishes. If there had been no question of its being released or leaked, he would have had no reason to do so.
A fully independent Attorney General whose advice was made public would be put in a position practically to veto anything he did not like. And his “independence” would make him unaccountable.
TWO CHAPTERS ON public appointments by John Bowers and standards in public life by Gillian Peele mark the high point of scepticism about the effectiveness of reforms when they should be sceptical about the principle of the reforms.
A Commissioner for Public Appointments was first appointed in 1995 charged with assuring that appointments are made in accordance with Principles and a Code. Like the Judicial Appointments Commission these aim at nonpartisan and diverse appointments. Public notice of and competition for appointments is prescribed.
The legal power of appointment remains with the government. Governments will and should want to appoint people who see things as they do. They will know people who seem to them fit to serve. By appointing them they will make government work as they wish. Reference to Principles and Codes can only obstruct them. Some positions are filled best not by people who apply and compete but simply by people who are ready to serve.
Bowers notes that some have been discouraged from competing by reports that the government had a favourite candidate. This argues not for more and stricter competition but against it.
As I write the Sir Keir Starmer government is already in trouble. There is a bit of a scandal about the Prime Minister’s wife, and the Chancellor of the Exchequer receiving gifts of money to buy clothes. The Chancellor claims that it would not have been right to accept gifts of clothes, but there was nothing wrong in accepting a gift of money to buy clothes. She may be right by the rules that apply.
This reveals the thoughtlessness that underlies most efforts to assure, or is it enforce, standards in public life. Rules, or guidance, are promulgated. An official supposed to be an expert in ethics, and beyond reproach, is appointed to see they are observed. Standards are then reduced to the rules and guidance, and the opinion of the official. Many might think that there was nothing wrong with whatever breach is found, except for its being “against the rules,” or that it was venial, while thinking that much not covered by the rules was seriously wrong.
When ethics becomes a matter of rules, people may quite innocently breach them out of ignorance while others find loopholes. Politicians and the media will make a hullabaloo, and good people may be sidelined. When judging politicians, and people generally, we need a sense of proportion. Very able and fundamentally honest people may be careless with their expenses, while useless and thoroughly self-serving people may be punctilious.
Peele’s discussion of allegations of bullying against Priti Patel, Home Secretary in Johnson’s government, reveals the extent to which the formalisation of ethics and setting up ethics officials might go if Peele and other ethics reformers had their way. The “Independent Adviser” under the “Ministerial Code” “found evidence of bullying” but Johnson “refused to accept the findings and Patel continued in post without sanction. This outcome not only cast doubt on the effectiveness of the Independent Adviser’s role, but also undermined faith in the efficacy of the Ministerial Code.” Peele implicitly contends that an ethics official should have the power to dismiss a Minister.
The surest and best enforcer of ethics is a free press and a serious public. The partygate scandal over parties at 10 Downing Street during Covid lockdowns was a major cause of Johnson’s downfall. Sue Gray, a senior official in the Cabinet office, and head of the “Propriety and Ethics Team,” dubbed the Ethics Tsar, investigated the parties and produced a scathing report. But there were also lots of news stories about the parties, a police investigation, and a parliamentary investigation. Johnson survived Gray’s report, but accumulating dissatisfaction with his leadership led to his announcing his resignation in July 2022. Some questioned Gray’s ethics when she left the civil service and went on to become Sir Keir Starmer’s chief of staff, when he was still Leader of the Opposition. Three months after he became Prime Minister she resigned saying she feared she was becoming a distraction. She had been accepting handsome freebies.
The book then moves on to devolution in Scotland and Wales. Sir Vernon Bodganor points out that a prime impetus for devolution in Scotland was Labour’s alarm at the Scottish National Party eroding its vote in Scotland. If Scotland was to get a Parliament, something had to be done for Wales and it got a Senned.
The principal motive was to placate Scottish nationalist feeling. The result was an SNP government, in 2011 a majority government, despite the adoption of a form of PR intended to prevent just that. Cameron allowed a referendum on independence in 2014, when independence was rejected by a 55% to 45% margin. The unionist parties all promised more power for the Scottish Parliament, which was duly given. The SNP, still in power, wants another referendum. Shades of Quebec.
Devolution’s main constitutional issue for the UK is what is called the West Lothian question, first raised in debates about devolution in 1977 by Tam Dalyell, Labour MP for West Lothian. Why should MPs from Scotland and Wales get to vote on issues that only concern England while MPs from England no longer have any say on those issues in Scotland or Wales?
One proposal was to set up regional governments in England to deal with devolved issues. To generalize devolution as it were. A proposal for a regional government in North East England was rejected by voters there by 78% to 22%.
Could anyone seriously argue that Scotland is better governed for having a Parliament in Edinburgh? The sole justification for its creation was that it might sate nationalist craving. Which it has failed to do.
One could squiggle a map of a territory in any country and declare it Squiggleland and endow it with a Parliament subordinate to the country’s Parliament and within a decade people would be saying that Squiggleland was getting a raw deal and an independence movement would arise. The Squiggle politicians and bureaucrats, and the media who covered them, would, as all people do, want more power, and independence would give them all power.
For 200 years Scotland prospered, kept its identity, its laws, and its church, and had its world historical importance, contentedly in the Union. Only in the last 50 years has Scottish nationalism become a serious issue. The theorists of nationalism, who generally think it a bad thing, cannot explain it. With the Marxist Tom Nairn it seemed just a way of putting down capitalist imperialist Britain.
Plainly much has gone wrong in UK politics in recent times. The same can be said of most countries. It is absurd to think that this is through some fault in the institutions. The ideological conjuncture, the culture, the people who go into politics and why, are the source of our discontents.
THE UNIVERSITIES BEAR great responsibility. Academics who study politics and the constitution constantly come up with ideas for reform as they know better. Where once one read Bagehot and Dicey, and perhaps Sir Ivor Jennings, and knew how it all worked and was content, now there is a Constitution Unit at University College London that every week has a better idea.
This book’s mission of defending a political constitution is noble. But in drawing on academic contributors who do not understand it, it is distracted. I have not commented on the contribution of Peter Reid and Asanga Welikala because despite their observance of the formula “First say what you’re going to say; then say it; then say what you’ve said.” I still don’t understand what their point is about “intercurrence” in “Scottish Secession and the Political Constitution of the UK.”
Every constitutional, or institutional change, billed as reform, in the UK, Canada, and elsewhere in the Commonwealth in the last 60 years has made government worse. Not because there may not be some small changes that would be good, but because they do not begin with an appreciation of how our institutions have been formed by the experience of history, and proceed from the academic, and popular, conceit that we now know better. Thus I stand Against Reform.
This article first appeared in print in Vol. 14 No. 4 ( Winter 2024), pp. 3-11.