Constitution Committee

Wednesday 28th October 2026

(began 7 hours, 21 minutes ago)

Share Debate
Watch Live
Skip to latest contribution
This debate has concluded
10:13
10:14
10:14
None Portrait Speaker 1
-

Well, I'll start. Yes. I think actually Canada and Australia are quite similar in this regard. So in terms of the similarities with the United Kingdom, mainly that relates to executive power. So the prerogative, for example, the way of forming government, those sorts of conventions that attach to the executive our relationship with the constitutional monarchy as well, the system of parliamentary and responsible government. So all of those things we have strongly inherited from the United Kingdom, and we retain and also a lot of parliamentary procedure, those sorts of things. Erskine May is a very significant book here in Australia as well, in terms of differences, our federal system, the United Kingdom, has been moving from a unitary system to a devolved system.

So there are some similarities. But the federal system is obviously quite different. But primarily it's our entrenched constitution. So it's a constitution that cannot be amended in Australia without the agreement of the people in a referendum. And that leads to issues about sovereignty of Parliament. We do not have the same system of sovereignty of Parliament because, of course, with an entrenched constitution, the courts can strike down laws as invalid. And that's a huge difference between the United Kingdom and Australia, and also House of Lords. We don't have an appointed upper house, so all our upper houses now, both at the state level and at the federal level, are directly elected.

 And I think finally, the other difference also is and it's changed in the United Kingdom, but that's the integration with Europe. So you still, for example, have the European Convention of Human Rights and those sorts of things where external bodies can make decisions that have an impact upon the United Kingdom in a way that Australia doesn't. So we do not have that same kind of relationship with other jurisdictions through, for example, a European Court of Human Rights.

We don't have that.
10:17
10:17
10:17
10:17
None Portrait Speaker 2
-

Yes, yes.
10:17
10:19
10:19
None Portrait Speaker 2
-

Yeah.
10:19
10:19
None Portrait Speaker 4
-

You know.
10:19
10:20
10:20
10:21
None Portrait Speaker 2
-

Yes. Well.
10:21
10:21
10:21
None Portrait Speaker 3
-

Okay. So I guess, you know, like, I'm very happy to talk about the different safeguards that exist and in particular, the distinctive ones that flow from the existence of a written, codified constitution. But I think for this audience, one very important thing that I would like to say from the standpoint of a scholar working with a written constitutional tradition, is that, you know, in my view, the quality of the Canadian democracy depends in large view, in large part on the actions of individuals. So these safeguards are not self-executing. And so both the UK and Canada's systems of government depend heavily on political actors taking their role and the limits on their authority seriously.

 And so if they don't, there is no obvious safeguard that can counteract this. In my view, not the written constitution, not a Bill of rights, not, you know, robust judicial review. And I think we see this, for example, in the United States where, you know, there is a written constitution, and yet we've seen a precipitous decline in the quality of American democracy due primarily to the disregard for constitutional norms. So I think it's really important to highlight the fact that in Canada's system, like in the UK, the quality of democracy does depend heavily on political actors internalizing certain norms of responsible behavior.

 And when this fails, the most effective check or safeguard is probably the people, right? It's like it takes us back to the the foundation of constitutional government. And this too, we see around the world in recent cases where authoritarian governments have been toppled. How? In elections, by people demanding more from their government. So I I'm I'll talk about, you know, the the benefits of codification, but I really do think that at the end of the day, this this very familiar UK style, you know, sense that that it's important for political actors to behave responsibly, that that still is a huge factor in, in the Canadian context.

 So shall I just briefly talk about the rights based review, or shall we turn it over to Professor Toomey?
10:23
10:24
10:25
None Portrait Speaker 2
-

I mean, I.
10:25
None Portrait Speaker 3
-

I think it's, it's fair to say that Canada has to some extent avoided the, you know, sometimes narrowly avoided the crises of democracy that we've we've seen elsewhere. But there are still lots of examples of troubling vulnerabilities. And when I look at when I compare what, you know, the constitutional state of affairs in the UK and in Canada and perhaps, you know, high profile incidents in both countries where democracy has been tested. I don't have the sense that, you know, there is some magic bullet that like, or some precise institutional structure that Canada has that the UK lacks that, you know, we're it only to be implemented, the quality of democracy would be stronger.

I mean, I think just to give you one example of what I think is a vulnerability in the Canadian context that is perhaps less of a vulnerability in the UK, is that that Canada's federal parliament or Canada's federal system is highly executive dominated, sort of chronically. So, but maybe like less than abusively so we could say, right. But we've settled into a pattern of very strong executive dominance. Prime ministers in Canada wield an incredible amount of power. And as a result, Parliament often plays a subsidiary role, sort of in an inversion of the role that those two institutions are intended to play.

 That's not to say that Parliament does not play an important role, but relative to the UK, I think actually Canada experiences stronger executive dominance. And so actually, you know, even having a Constitution committee of the House of Lords with independent advisers, this is something we do not have in Canada. And my view is that that structure actually permits Parliament to access independent information about the constitutionality of government conduct in a way that does not exist in Canada and Canada. We have very robust pre enactment rights review, but it occurs largely within the executive. And there's a little bit of reporting out that occurs there.

 And so there's something called a charter statement that's then tendered in Parliament. But parliamentarians are still to a large extent dependent on information they receive from the executive about constitutionality. And so I would just say that there's work that Canada could do to strengthen parliamentary accountability for rights and for constitutionalism, and there we could learn something from the United Kingdom.
10:27
10:27
None Portrait Speaker 1
-

Yes. The one thing I'd say about Australia that's quite different to virtually anywhere else is we have a system of compulsory voting, and that does make a huge difference. So one aspect of compulsory voting is that it tends to weed out the extremes. When you have voluntary voting, the extremes of the the sides that are more motivating people to come out and vote. And therefore you can get distortions in the system. But in Australia, it's the whole of the middle comes out to vote as well. It makes it very difficult to end up with extreme positions.

 It also changes the way politics operates as well. So for example, if you look at the United States, you see political parties that, you know are concentrating on getting out the vote in particular areas. They, they, they assume that only certain sorts of people are going to vote for them. And therefore, their policies are directed in that way and are not directed to other groups. You can't do that in Australia because of compulsory voting. You need to have policies that will work across the board. And so compulsory voting makes a big difference in terms of a safeguard.

 I think it's a very it's a significant safeguard in Australia to hopefully ward off the rise of the bad kind of populism. Yeah, so that's the first thing I'd say. The second is that there are aspects of our entrenched Constitution that do make it extremely difficult for bad populists to come and distort the system and basically entrench themselves in power. So, for example, the Constitution, you know, says that Parliament can only have a no longer than a three year term, and then you have to have an election. There's just no choice about it. You couldn't extend your parliamentary term without changing the constitution.

 That requires a referendum. You've got compulsory voting in a referendum, and it makes it extremely hard to change the Constitution. So there are entrenched aspects of the Constitution that do defend democracy. Section seven and 24, so that the Houses of Parliament have to be directly chosen by the people. And those words directly chosen by the people have consequences. So it has to be the people. And there's a question as to, well, what does that mean? And who's involved in the people and courts will interpret that. And one consequence is you can't exclude groups on the basis of race or sex or anything else like that from being able to vote because of that constitutional aspect.

 So it would be very, very hard for autocrats to effectively take over and entrench themselves in power, because it will always come back to the people in elections and those voting rights are protected. And we also have implied from our Constitution and a freedom of political communication. And that also makes it extremely difficult for an autocratic government to suppress political communication. You know that in relation to the other side. So all of those things, as well as separation of powers, that's the other really important thing in the Constitution, in particular, to the extent that it protects the judiciary and keeps the judiciary completely independent from the executive and the legislature so that it is free to act to apply the Constitution, it can strike down laws.

 And so all of those features, I think, do help in terms of being safeguards to protect our constitutional system.
10:31
10:31
10:31
10:32
None Portrait Speaker 4
-

About who to.
10:33
None Portrait Speaker 1
-

Vote for. Whereas if you didn't have that impetus of pushing you into the polling station, you might be sitting back on your couch and feeling lazy and think, oh, well, you know, they're all just going to do what they like anyway. My vote doesn't really count, so I'm not going to turn up. So you wash that part out of the system. The other interesting thing about compulsory voting is that it has indeed become part of your civic responsibility. So even in circumstances where. So when compulsory voting started, it started at a state level. So I think it was Queensland first that implemented it.

 And what they discovered was that once that Queensland had implemented it at the state level, but it didn't apply at the federal level. When you had federal elections, the Queenslanders who had become accustomed to voting at the state level, would come out at very high levels at the federal system, even though they weren't required to do so. So once you get used to voting on a regular basis, you're going to do it anyway, regardless of whether or not it's compulsory. It becomes part of civic life. So there are aspects of compulsory voting that actually put the burden on voters to think about how to vote.

 Pay attention to the debate. But having said that, it should also mean that we do better in terms of educating people in schools, particularly about the difficult aspects like the federal system. I don't think we do that well enough, but having said that, we do it a bit and people are effectively forced by circumstance and also just custom as well to educate themselves in relation to politics. The other point to make is that compulsory voting is very popular here. Political parties from time to time, have wanted to get rid of it on the basis that, you know, one side thinks that compulsory voting might favour the other side tends to swap from time to time as to who thinks it favours whom.

 But in any event, opinion polls very, very strongly support compulsory voting in Australia. It would be extremely difficult to get rid of it on the basis that it is seen to be very much part of our culture.
10:35
10:35
10:36
10:36
10:36
None Portrait Speaker 3
-

Is well known for having this. this written codified constitution, but the unwritten components of our Constitution continue to be extremely important. And here I'm referring not only to the sort of historical or historical inheritance, the political constitution that's well known in the UK and which continues to operate around Canadian political institutions, but also unwritten constitutional law. The Canadian Supreme Court has developed over a period of decades doctrine or jurisprudence of unwritten legal constitutional principles that play a very important role in its constitution. So I think it's sort of impossible to fully codify a Constitution and Canada's system, despite having these important written components, still relies heavily on unwritten norms, both of the political and of the legal character.

 I will maybe say it's it's likely true that there are certain aspects of codification in the Canadian context that have been beneficial. So the codification of Canada's Charter of Rights and the codification of Aboriginal and treaty rights, those have have been quite important. I think I'll talk less about Aboriginal and treaty rights, because I think they're maybe less directly applicable in the Canadian in the UK context. But I think certainly the entrenchment of charter rights has created a culture of of awareness of rights. It obviously then has given the courts a very important role in the oversight of rights compliance, but it has also led to the development of fairly significant mechanisms of pre enactment review within the executive.

 And so there is something that has been institutionalized within political institutions as a result of the entrenchment of the charter and the possibility of judicial review that I think has given rights much more prominence than they had before the enactment of the charter, because, you know, prior to the enactment of the charter, Canada had common law rights, and it also had a statutory bill of rights. But there is something about that that entrenchment and codification that I think has proven very important. There are other also aspects of our Constitution that the amending formula, for example, some of these these aspects of the written Constitution create an important degree of clarity.

 But, you know, whatever those benefits, the reality is that even what's codified is, is quite basic, right? You have a right to freedom of expression or to equality. Well, that creates a foothold for political action or for judicial review. But then there remains a a lot more work that has to be done to give those rights life. And so then, you know, there's an important role for courts. But I will also say, I do think one of the things that happened when the charter first came in was that focus really shifted from political institutions to the courts.

And there was this sense that, you know, scholars should spend their time looking at how courts were interpreting rights. And one of the things I think we failed to grapple with sufficiently was the fact that rights, the experience of rights, does depend a lot on the actions of political actors working within political institutions. And so I, I think in recent years, we've seen we've come back around to realize that these codified rights, that political actors are in a unique position to give effect to them. And so, and that this is really a whole of state project.

 So yes, those unwritten components of the Constitution that are so familiar in the UK, this is also an essential part of Canadian constitutional democracy.
10:40
10:40
None Portrait Speaker 1
-

Okay, so codification I, I feel. Gives rise to advantages and disadvantages. So codified constitution, particularly in relation to protecting democratic rights and fundamental things like separation of powers or whatever, I think is very, very important. But I'll just take a different perspective here. For example, in relation to rights, Australia doesn't have a codified Bill of rights. And interestingly, that's also because there's been a popular pushback against that, because there's a concern that that really transfers rights away from from parliaments and democratically elected representatives and into the courts, where courts are deciding constantly about conflicts between rights and how to adjust rights to manage that.

 In Australia, there's been a reluctance to do that. And the general view, I think, is that when it comes to things like social rights, that a parliament is a better place to make those kind of assessments because members of Parliament are democratically elected and that's their role, to be able to make those kind of judgments as to how you balance rights, where I think entrenchment, however, is very important, is where members of Parliament have a vested interest. And so they might have a vested interest to manipulate matters where it comes to, for example, preserving their power.

 So things like in Australia, the implied freedom of political communication is very important as a constitutional right , because it prevents members of Parliament through the enactment of legislation from suppressing speech in relation to political matters and elections, etc.. So it ensures the support for the political system. So I think personally, the better way is to make sure that those kind of rights where members of Parliament may indeed have conflicts of interest or vested interests in achieving particular things, are better dealt with in an entrenched way and more independently by courts. But the more social issues like, you know, for example, abortion in the United States, that's an issue for courts in Australia.

It's an issue for parliaments, and it's relatively uncontroversial because parliaments have made decisions that people accept. And it's just it's not an issue. We do not fight about that in the courts. So those kind of social type of issues, I think are appropriately dealt with by Parliament, whereas the ones that are key to maintaining the democratic system and separation of powers and those sorts of things are better off in an entrenched constitution. So it's about balancing the two.
10:43
10:43
10:43
10:43
10:44
10:44
10:44
10:44
10:45
None Portrait Speaker 3
-

Yeah. So. So thank you for giving me the opportunity to elaborate on this. Let me say that I think in Canada and probably in other systems as well, the idea is that there are a range of constitutional safeguards that exist. So in Canada we have, of course, you know, rights, judicial review, the separation of powers, federalism, the presence of independent accountability officers. And the idea is that working and an independent civil service, I should say as well that working in in tandem, all of those safeguards together operate in such a way as to protect the quality of democracy.

 That's the assumption in a lot of constitutional democracies. And I think what's so alarming is the way that we have seen established constitutional democracies in recent years be rendered vulnerable very quickly. How? By the disregard of political actors. So prime ministers, presidents, cabinet, the disregard of constitutional norms. The reality is there are ways to manipulate any constitutional system for political advantage. And we have seen political actors succeed in doing that, even in systems that we had previously understood to be robust. And so, you know, the the hope, of course, is that. So in the Canadian system, if you some of these recent high profile instances where we've seen anti-democratic action taken, you hope that there is a political outcry.

 You hope that if the matter goes, you hope that the civil servants inside government say this is not wise. You hope that the courts would down unconstitutional action if the matter came before them. You hope that there's not, you know, a system wide failure. But but what is extraordinary to me is the extent to which constitutions, constitutions can be degraded when political actors don't accept or rebuff the norms of good behavior, I don't I don't think that the system on its own can ensure can ensure remedy. I think courts, just to say very quickly, I think courts are very limited.

Of course they are unelected. They play this very important role, but they can't be the ultimate backstop for our democracy. They don't have the legitimacy to do that.
10:48
10:48
10:49
10:49
10:49
10:49
None Portrait Speaker 1
-

Well, look, I largely agree with that. You do need people to respect the different roles and the institutions, but you can put structures in place that aid that. So a constitution that deals with separation of powers, that ensures the independence of the judiciary, a constitution that requires elections to be held, a constitution that requires freedom of political communication, all of those sorts of things can help creating independent institutions, anti-corruption commissions, auditors, general ombudsman, there's a whole host of different organizations. And to degrade the system, you have to really get in and degrade them all. Now, that's not to say that that hasn't happened in some countries.

 It has, but it is very difficult to achieve that because you do have a whole lot of friction points where people will ordinarily stand up and say, this is not acceptable. But underlying all of that is culture. You know, in the end, culture is everything there are. Excuse me. There are countries in the world, for example, that have marvelous bills of rights. But if you don't have the culture to support the rule of law, then a marvelous bill of rights is completely useless. Yeah. So at the moment in Australia, we still have a strong culture of rule of law.

 And if politicians do the wrong thing and press the boundaries in an inappropriate way, there is outrage. An example of that was Scott Morrison and his secret ministries during Covid, when he appointed himself as minister for a whole lot of different things on the basis that then he might secretly exercise power. The outrage in relation to that was palpable in the community. So culture and respect for institutions and the rule of law is really important. And that is ultimately what's going to maintain the system. All systems are vulnerable, but the structures that you have in there already, the the courts , entrenched constitutional rights and structures, whatever, do help uphold that and help uphold the culture.

So it's it's a circular thing.
10:52
10:52
10:52
None Portrait Speaker 1
-

Well, historically for Australia, it was a consequence of choosing a federal system, because if you have a federal system and you have to have distribution of powers, you can't leave it to one side to be able to just change everything because a federal system wouldn't work. So historically, that's the reason. Having said that, the, you know, it took effectively ten years of debating before they finally got agreement. And partly that was about bringing together a whole lot of colonies to make one. Well, effectively, it was one big colony then. It still wasn't a nation, but to bring them together.

So there was a lot more impetus behind it than just codifying things. I think from your point of view, what is more relevant in Australia is not the federal level, but the state level. State constitutions originally were brought in by the British, and the British took the view that, like the British Constitution, they should be flexible and not entrenched. However, the Colonial Laws Validity Act permitted the entrenchment of provisions. And over time, what we've seen is that and it's different in every state jurisdiction. So every state does this differently. But states in their constitution have entrenched some aspects, and in other aspects of the written constitution are flexible as in ordinary legislation.

 So if you take, for example, the New South Wales Constitution, probably two thirds or maybe three quarters of it can be amended by ordinary legislation. And then there are certain parts of it that can only be amended if you have a referendum or, in some jurisdictions, a special majority in Parliament. And so, yes, there's difficulty about choosing which ones. But the second thing is choosing working out how you do the entrenching to begin with. Because one of the problems that you get at the state level is if a government that has a majority at the moment, its temporary majority in Parliament, then just uses its ordinary parliamentary powers to entrench something so that it cannot be changed in the future unless you go through a really difficult method now that can be abused as a way of entrenching policies of one side, one political side that they want kept there forever so that they can make sure their opponents can never change it.

And that's very damaging. It undermines the whole ability of, you know, each generation to be able to change the law, to meet its circumstances. So the one thing I would encourage you to do, if you're looking at entrenchment, is to look very carefully about the process of doing the entrenchment. So do you have to meet the same criteria to entrench that you need to change it or entrench it in the future? So if you're going to entrench something and say, well, you can only change it if you need a referendum, then you should also say you need the referendum to do the entrenching.

 You shouldn't have a disproportionate way of I can entrench something by ordinary legislation, but I can only then alter it by referendum or special majority.
10:56
10:56
10:57
10:57
10:58
10:58
10:58
10:58
10:59
10:59
None Portrait Speaker 1
-

Okay, I'm trying to think now as to what extra things I would say. So on the federalism front, the one thing I would encourage you to do better than Australia is to work out a better system for federal financial relations. That's the thing that causes the most trouble in Australia. It's money when it comes down to it and how money gets distributed to make the federal system work. Other problems like duplication and the like can be dealt with, you know, relatively sensibly. But the money issues are the worst issues and the most difficult to deal with.

 So in terms of fixing things, that's where I would look. What else? Independent institutions and offices are very important for these sorts of things in Australia, having what's sometimes called the fourth branch of government, and particularly anti-corruption bodies, a really good safeguards , because in the end, they've been pushing politicians and the like to behave better than sometimes they do in terms of manipulating things. Yes. Another thing I would say is the greatest threat I see is from the executive taking the view that once you get elected, you are entitled to do whatever you want, and that anyone who gets in the way, be that parliament or the courts or independent bodies, is a an irritant that should be removed and has no legitimacy.

 I think that's the most dangerous area when it comes to the Constitution. And what we do need to do is strengthen our other institutions, our parliaments and our courts, and also strengthen public respect for them. And in particular, one thing I've been concerned about in Australia, and I gather it's a problem in the United Kingdom as well, is Parliament effectively surrendering its control over matters? So, Henry, the eighth clauses, for example, too much delegation of power to the executive through delegated regulation, delegated legislation. It's a big problem in Australia. I gather it's a problem in the United Kingdom as well.

 And it is ultimately very dangerous. If you could be in a position where someone could just prorogue Parliament and start governing without Parliament just using executive power, which has been delegated, that's the way authoritarian governments are going to take over. So I would look closely as a parliament at ensuring that you don't give up your powers to the executive, and you keep very strong scrutiny, measures and control, and particularly over things like not only appropriation, but approval of government spending as well.
11:02
11:02
None Portrait Speaker 4
-

Yes.
11:02
None Portrait Speaker 3
-

I guess I'll say two things. One is I think that democracies worldwide are vulnerable right now. So if you think about the rise of populism, environmental concerns, the recent global pandemic, artificial intelligence, these are pressures. All of these issues or concerns place pressure on democracies and on politicians, the rising cost of living, housing shortages. So I think we have to think about, you know, there are these internal threats to democracy that come from within the system, but there are also these external factors that make governing well a challenge. And so in this regard, maybe I'll just talk about something that occurred with in Canada that's related to this.

 That is maybe an example of how this system can work well. And so that is in the middle of the pandemic, in 2022, there was a convoy that occupied downtown Ottawa and blockaded international border crossings. The idea was that these truckers were opposed to vaccine mandates, but very quickly, it became a massive protest with all sorts of anti-democratic and elements. And in any event, the the federal government ended up declaring a state of emergency, which was in place for ten days before. It was nine days before it was rescinded. And this was the first time that that Canada's modern emergencies legislation had been used.

 So this started as being something about opposition to vaccine mandates. It became sort of a profound crisis for for public order, but also sort of raised concerns about or about the risk of, of democratic institutions being interfered with. And so what happened next? There was a commission that examined the declaration of emergency that examined the conditions that led to the convoy. The commission concluded that the declaration of emergency was lawful, but then the matter went before the courts and the courts have concluded the opposite, that there were significant that the the declaration was not justified and that there were significant violations of constitutional rights and in that case is now going to the Supreme Court.

So this is this idea that, you know, you hope the system as a whole produces a rigorous assessment of what happened, and that there is an ability of different actors in the system to, to kind of keep democracy on the rails. But but, you know, I think that also
11:05
11:05
11:05
11:05
11:05
11:05
11:05
11:05
11:07
11:07
11:07
11:07
11:07
11:08
11:09
11:09
None Portrait Speaker 4
-

Advice from the from government lawyers, the government legal service, the attorney general, the Parliamentary Business Liaison Committee and cabinet committees and the rest of it, I think, is an inherent informal safeguard that is very important, probably the most practical one in terms of maintaining good government. Clearly that can have problems as well. And, you know, the advice is very much the value of the advice is determined by the people who give it. And we could look at that. But I think that is important. Secondly, and more formally, and the most obvious constitutional safeguard we have in our country is the legislature, the House of Commons and Lords, who ultimately take the.

 decisions whether to recommend to the Crown if a Bill is passed. I think that the oversight of the budget is also very important. Here we see significant weakness, potentially. And your last witness made the point about delegated legislation, Henry, the Eighth powers and the growth of those. And I do want to pay tribute to the the DL Committee of the House of Lords that has commented repeatedly in recent years about the growth of these this use of secondary legislation. I also happen to think that some of the reforms that were. introduced 20 years ago are in the Blair era, the Robin Cook reforms to the way the House of Commons is managed had the effect of.

 undermining the important constitutional safeguard that the Commons represents. So giving more power to government, to the to the government, to timetable legislation. And we saw and there was mention made in the in the previous by the previous witnesses of what happened in Canada. I do think that was a very important moment, actually, for the West. What happened to those truckers in Canada, the way the executive stepped in to override what was legitimate Democratic protest? But that's not our country. So let me not make too much of that. But I do think there were problems in the way the United Kingdom also acted in that crisis that suggested that Parliament didn't have the strength that it thought it had.
11:11
11:11
11:12
11:12
11:12
11:12
11:13
11:13
11:14
11:14
11:14
11:15
11:15
11:15
11:15
11:16
11:16
11:17
11:17
11:17
11:17
11:17
11:18
11:18
11:18
11:19
11:19
11:20
11:20
11:20
11:20
11:21
11:21
11:22
11:22
11:22
11:22
11:23
11:23
11:23
11:23
11:23
11:24
11:25
None Portrait Speaker 4
-

Constitutional risk that's not worth not worth going for. Thank you. Well, we've already stepped over that line because it is already possible for ministers and the Prime Minister to make, as it were, political appointments into the system. There are many people who come from the private sector and work in work in government. And that's what that's all that we're proposing. By the way, we haven't discussed special advisers. I'm not proposing to turn SPADs into officials. I think we still have a role for purely political people working in government. So what what we what I want us to do is to ensure that officials.

 themselves are not. political in the sense of pursuing the political advantage of their party or even of their boss, but they are aligned and expert. So we should be able to take people from the energy sector and bring them into government, and to ask them to lead big parts of the energy, you know, policy area, for instance. And so my point is, we have crossed that line already. You get you get appointees. And in fact, we now have external appointments or open appointment recruitment by default. That's one of the I mean, I think it's a bit of a sleight of hand that's going on because actually it's just a means by which.

 They can, they can they can continue to appoint the people they want. Anyway, the principle of external appointment in the civil service is already established. We just want to do more of it. And you might well be right that we don't need to go all the way, as it were. And I'm not suggesting nobody's suggesting on our side anyway that there's some sort of total sort of, you know, blood. transfusion of the senior civil service. But we do want to have the power to make the changes that are needed. So private office is a good example.

I don't know what your view is there and your experience, but certainly it's something that I understand to be a real issue for ministers is that they don't control their own diary, access to themselves, what goes into their box in a way that they would want to. Why should they have to take as a private office, the people who are most .
11:27
11:27
None Portrait Speaker 4
-

I'd .
11:27
11:27
11:27
11:27
11:28
11:28
11:29
11:29
11:29
11:29
11:29
11:30
11:30
11:30
None Portrait Speaker 6
-

En passant .
11:30
11:30
11:31
11:31
None Portrait Speaker 4
-

But we do need to have the ability to do so. We need to have the Secretary of State genuinely in charge of the staff in their department. And now talking about private offices. I just mentioned it because it's I think it's an important example of where at the moment. Secretaries of state or ministers of state will have to fight quite hard to get the team they want right next to them in their outer office. And that feels wrong. They should be able to appoint who they want, and that includes bringing in people from outside who have worked with them before.

 And you're absolutely right. Of course, they're not there to do a political job, which is why it is important to maintain the civil service code and to emphasise that they are there to serve the public, but they are appointed and they serve at the pleasure of the boss. So, I mean, it's an interesting feature of recent years, private offices have become more and more senior. You know, you now have, you know, very well paid in a direct deputy directors and so on , serving in those roles. But it might well be that we need to go into quite junior ranks in order to ensure that the Secretary of State can have the private office that they want.

 But the main purpose of the reforms we're proposing is not just to give the private secretary of state their, you know, administrative support that they need. It's to ensure that we can have genuine expertise at senior level. So I would expect us to want to make some significant number of changes at that level. But likewise at DG and director level, too. And, you know, the proof will be in the pudding, you know, to what extent they ministers get the service and the support that they need will determine the extent to which there needs to be changed.

 But it is important that civil servants know that they are on the hook for delivery. And can I I mean, if I may quickly take take a moment to emphasize, you know, we are very in support of the civil service. We've done a lot of surveys and a lot of conversations with former and serving civil servants who complain about the deep. demoralization that exists in Whitehall. It's a very depressing place to work, and that is because of all the problems that we're discussing here, the growth in the numbers, the bureaucratic process, the extreme .
11:33
11:33
11:33
11:34
11:34
11:34
11:35
11:35
11:35
11:35
11:36
11:36
11:36
None Portrait Speaker 4
-

I'm afraid.
11:36
None Portrait Speaker 6
-

Thank you. Thank you.
11:36
11:37
11:37
None Portrait Speaker 4
-

And the principal changes have been the growth of a. We come on to the judiciary in a second, but the growth of judicial model in which the common law. Tradition of the primacy of statute and case law has been subsumed by the sort of what are called creeping monism, whereby international law is seen to have effect in domestic statute. And we now have the means by which it is very much easier for for a lawyer to put before a judge a case for overturning a government decision, that because of the willingness of the law and because of the abstractions of the international law code.

 So where we did have the powers of Parliament to have their effect, and judges scrupulously respected that, and also were very respectful of precedent, we now have a much broader legal arrangement. So judicial review has has grown. We also have seen, as I've said, the growth of the notion that the civil service does have this independent role. So between Robert Armstrong in. 1985 and the Cragg Act of 2010, something changed in the political culture, and I would. And the problem was that it was politicians. I don't think with Tony Blair's. particular will, I'm not sure.

I mean, it's arguable. And people do argue he didn't even know what he was. He wasn't interested himself in all of this constitutional stuff. It just happened. It was Charlie Faulkner, your your your esteemed colleague and others. Derry Irvine pushing this agenda through . And, and what they adopted was that, I think very. unconstitutional principle of the separation of powers, the American idea that is not not in our British system and separating out the judiciary from Parliament. I'll come on to your second question. But under that, guys, we also have built in this idea of checks and balances as somehow sort of.
11:39
11:39
11:40
11:40
None Portrait Speaker 4
-

It had grown to about 3000 by 2010. And it's now 12,000. So, you know, there's a blob at the centre of the blob, which nobody in it even knows what they're doing. So there is a there is a problem. We would scrap that, create a proper department for the civil service, which does all the kind of corporate HQ functions of Whitehall, but then properly empower the Prime Minister and the office of the Prime Minister to have the to to hold the reins on for the executive. To your point. about judicial appointments, well, seeing as you're such a fan of the pre.

 1997 model, I hope you would agree that the system worked pretty well when the Lord Chancellor appointed the judges and somebody got to appoint them. And at the moment they appoint themselves, it's rather like the bishops, you know, traditional sovereign functions have essentially been given to the to to whichever body it is. So the the judges are now appointed through the Judicial Appointments. Commission in an attempt, again, to separate powers to take to take functions out of politics. And I worry about things being taken out of politics because that is tantamount to taking them out of democracy.

 Politics is means that, you know, the management of our common life. And what can be more important than the appointment of the people who will adjudicate on in court? So we do want to restore some measure of of oversight of the judiciary through whether it's a rejuvenated Lord Chancellor or, or, or. reimagined Judicial Appointments Commission will come forward with proposals in due course. But clearly there is a problem when we have judges being appointed who, again, coming back to the point about the civil service, I'm afraid to say, particularly in the lower courts, we have had some very, very poor quality.

 judges with blatant political prejudice. So the notion of impartiality is not being. maintained by the system we have at the moment. I think it would be better for somebody who is politically accountable. It was the Lord Chancellor in the old days, accountable to the public, through their through the Prime Minister to take responsibility for appointing judges. But let me emphasize, they need to be genuinely independent judges in the way that civil servants shouldn't be. I mean, they they should take they shouldn't be taking any orders from ministers as civil servants should. Once appointed, they should be absolutely independent, and it's very wrong for any.

 Any suggestion of government interference in in in judgments. But the appointment of judges does feel like something that ultimately the state is responsible for. The state holds the monopoly on power and therefore accountable part of the state. The political class should be responsible for who who the judges are. Other countries elect them directly.
11:42
11:43
11:43
11:43
11:43
11:45
None Portrait Speaker 6
-

Encouraged .
11:45
11:45
11:45
11:45
11:45
11:45
11:46
11:46
11:46
11:46
11:46
11:46
11:46
11:48
11:49
11:49
11:50
11:50
11:50
11:50
11:50
11:50
11:50
11:51
None Portrait Speaker 6
-

Its way,
11:52
11:52
11:52
This debate has concluded
Return to start of debate - Return to top of page