On Great Restorations

One thing I’m quite poor at on Substack is responding to comments. I am inundated with replies on X and direct messages on half a dozen different platforms and there has to be a limit otherwise I’d get nothing done. Reading the comments to an article can sometimes be demoralising and demotivating, and very often that was the intent of the comment. Occasionally, though, there are some worthwhile comments that require a full response.

You might recall, last year, when I pitched my ideas to Ben Habib, then chairman of Reform, I floated the idea of a Great Restoration Bill followed by a convention on British rights. I also toyed with the idea of a constitution in the manifesto I wrote. I’ve been pretty consistent in saying that if you are going to go to the trouble of leaving the ECHR and repealing the Human Rights Act, you need to have some idea what you’ll replace it with.

One thing the dissident right is agreed on is that most, if not all, of Tony Blair’s constitutional meddling must be undone. On that point, you will get no argument from me. I was kicking at an open door on that score. Since then, both Lowe and Habib have adopted the notion of a Great Restoration. I don’t know if I had a hand in that, but David Starkey has been banging this drum very loudly in the last year, and he sits on the advisory board for Lowe’s latest enterprise and, as I understand it, has been in contact with Ben Habib and Robert Jenrick’s camp.

Since then, though, I’ve grown sceptical of the idea. I’m not opposed to constitutional reform by any stretch. My whole point last year is that a party called Reform should have a plan to reform things. Where it goes off the rails is the idea of restoring the British constitution to its 1997 configuration.

As I’ve remarked on X, I think restorationists are delusional. Starkey is a man I would certainly consult on how this mess came about (because yes, he does know his stuff), but is not one I would ask about fixing it. Constitutions are not like computer servers where you can roll back to the last known working configuration. Constitutions have to gradually evolve, to reflect the modern reality, and the public is not going to accept a reversion to 1997. Moreover, the constitution that existed in 1997 was a tripartite system contingent on a functioning Commons, church and monarchy, all of which are debased beyond repair.

Secondly, Habib and Starkey et al keep talking about parliamentary supremacy, oblivious to the fact that parliament did all this to us in the first place. They're the ones who took us deeper into the EU without a referendum. They're the ones who signed us up to binding climate agreements. They're the ones who implemented the ECHR under the HRA. They're the ones signed away Chagos. They're the ones who handed Northern Ireland to the EU. Parliament is the lapdog of any sitting government.

All of Blair's constitutional meddling was a symptom of an absolutely feral elite, and they got away with it precisely because parliament is supreme, and because we have no constitutional restraints on them. There are no checks and balances, only general elections, which Starkey thinks is sufficient.

I challenged him on this point last year and he just said we can vote for a different government. Governments, and their lapdog parliament, are apparently free to do whatever the hell they like to us, and that's fine, because we get to participate in an opinion poll once every five years. That's what they think democracy is. Sorry. That's not enough. Representative democracy is NOT democracy. As such, the idea of a Great Restoration is a roll back to an equally dysfunctional system.

The problem, or one of them, is that British voters do not have a hand in choosing their government. The model we have is based on the election of an MP, and MPs form governments. This doesn’t work because our democracy and political culture have evolved, where we now vote for parties and party leaders - and we don’t really vote on the basis of who the local candidate is. We should, but we don’t.

This, incidentally, is part of the reason a Reform government would be a liability. If the party has a sudden surge, you’ll end up with hundreds of Sarah Pochin clones with sub-mediocre intellects, very little political experience, no policy ability, and nothing approaching skilled leadership. It will be a lottery.

If there are any competent people it will be entirely by accident and they're toast if they outshine Farage or his golden boy Yusuf. Most of them will be barely vetted mouthbreathers from the regions with no record of accomplishment, and because they're not used to status and money, they'll lose their heads (like the influx of SNP MPs did), and within three months the party will be mired in sleaze allegations and expenses fraud - not least because the media will be scrutinising them more than they ever have.

The issue is that we have a de facto presidential system but our constitution never really evolved to acknowledge this new reality. This is something we set out to address in The Harrogate Agenda. A Great Reform Bill should instead seek to establish real separation of powers. The primary concern here is that there should be a clear distinction between the legislature (Parliament) and the executive (Government).

Should the executive thus be separated, the obvious and logical outcome is that the Prime Minister and his or her ministerial team would no longer be Members of Parliament. They would have to be elected in their own right, a process which in any case would reflect the increasingly presidential nature of general election contests.

The use of the Commons as the recruitment pool for most of the ministers (and the Prime Minister) has a highly corrosive effect on politics. The main function of parliament should be scrutiny of the executive. If parliamentarians are also members of the government, there is an inherent conflict of interest.

With separation of powers, the government would be able to look outside of parliament for expertise and leadership. Ministers could be selected by the prime minister, and their appointment ratified by Parliament, giving the necessary democratic oversight. With such a model, voters can be more discerning in selecting their local MP, thus addressing the manifest quality problem.

As regards to constitutional restraints, yesterday’s commenter, Tom of Kent, quite rightly points to the flaws in the American system. I don’t believe I have ever recommended it, I just haven’t adequately eludicted an alternative. There’s a reason for that. I’m not even remotely qualified to venture an opinion. Contrary to popular belief I do not rush to opine when I have little knowledge of a subject. It’s why you don’t often see me talking about economics either.

That is why, on constitutional reform, I wrote in my manifesto:

The Party believes it is time for a codified constitution. To that effect, we will commission a constitutional convention with a view to reporting on the desirability and acceptability of such a constitution. We will entertain the idea of electing the members of the convention, or other forms of selection to ensure that an independent panel is selected. The convention would produce and publish a draft, which would be subject to prolonged and comprehensive consultation of at least a year.

Amendments would be invited, discussed and included in the draft as appropriate. A final provisional draft would then be published and subject to a referendum. Contentious amendments might also be subject to a vote.

The draft, if agreed, would become provisional for a period of up to ten years, during which further amendments would be invited. At the end of the period, a final draft would be produced and subject to a further referendum (with or without separate votes on amendments). The final, agreed version would then be locked in, capable of change only under very stringent conditions, by national referendum with a minimum turnout threshold and a super-majority requirement.

Essentially, this is something that requires a much wider national debate. All I’m certain of is that if we are at some point going to the trouble of leaving the ECHR and repealing the HRA, then the previous settlement is going to be inadequate.

The default model for an alternative, which Dominic Raab dabbled with, is a British Bill of Rights. I have doubts about that and I can see why the then government quietly dropped it. If it’s going to be done, it needs to be done well, and there is no guarantee it wouldn’t be as bad, or worse than what it replaces, and we cannot assume in won’t be similarly corrupted by any subsequent Labour government.

Then, as I’ve noted elsewhere, the problems we’re dealing with now are as much to do with the political and judicial culture. The absurd and offensive immigration appeal decisions we see come from British courts and feral British judges.

That then raises the question of how judges are appointed. I strongly suspect that any system is only as good as the sitting government. There’s nothing much stopping a government from stuffing the system with their own agents. On that basis, I can see why many think a restoration of the Law Lords is the least worst option but I don’t think the same culture of noblesse oblige still exists. Without a functioning church and monarchy, the moral guardianship of the system simply does not work.

I’m not saying I have the answers here. I only have more questions. Questions which are not being considered by the likes of Lowe and Habib and their respective enterprises.

The working assumption behind all this great repeal is to put an end to lawfare, but for as long as there are things like judicial review/injunctions, and a galaxy of NGOs and activist lawyers, there will continue to be lawfare. Finding loopholes is the job of activist lawyers. They are good at it and they like doing it. And for them, a legal delay to something is as good as a win, because all they have to do is drag something out long enough for a sitting government to lose an election. This problem will never go away until we address the wider political culture.

So essentially, if we are saying this is something that should be done, it has to be worth the bother - and we have to be able to demonstrate that it will accomplish what it sets out to do. This is why I’ve grown sceptical of leaving the ECHR. Its rulings can still be accepted by judges as customary law, in which case, we are back where we started and in for another round of legislative whack-a-mole. When does it end? Never. Because politics is a continuum.

This is what brings me back to the notion of separation of powers and the idea of a directly elected executive with real executive powers. At some point, a government has to be able to say “This is what we said we would do, this is what we were elected to do, so this is what we are doing”. The people, not parliament, should be sovereign. As Donald Trump has repeated demonstrated… you can just do things.

Lately, I’ve started to feel like there is a British disease where we will find any excuse to not do things. For decades, politicians blamed the EU, and now we’re blaming the ECHR, and there’s now a litany of legalese reasons for not building power stations, and for not deporting criminals. I keep coming back to the conclusion that the reason government doesn’t do things is usually because it doesn’t want to.

That begs the question of whether a full parliamentary term of Brexit scale shenanigans is worth the bother if we are still burdened with a political class that wouldn’t do things even if it could. What if we elected a government that actually wanted to fix immigration? We don’t know because it’s never been tried.

To conclude, I think there is certainly a case for a great repeal bill that looks at the HRA, the Constitutional Reform Act, and the Equality Act etc (you probably know the list better than I do), but I wouldn’t bet the farm on it making a real difference because it has to be replaced with something. Until the right can give a coherent answer as to what that something is, it is unlikely that the public will consent to it.

The further thought is that these fantastic blueprints are all contingent on a government having a massive majority and concrete public mandate. I don’t see that happening any time soon and a “big beautiful bill” would never make it through the House of Lords intact, and would probably run out of road.

As such, a "Great Restoration Bill”, from the mouths of Lowe, Habib et al starts to sound like a magic wand. After all, if you look at what they were saying about WTO rules during Brexit, these are people who really do believe in magic wands. My experience of these people is that if there’s a wrong end of the stick, they will grasp it with both hands, and if there is a problem or a complication, they will either deny it exists, or refer to one of their fantasist friends in the legal profession (Howe/Barrett et al) who will invent a nonsense legalese smokescreen.

I’m hoping that when Kemi Badenoch’s ECHR policy commission reports back in September that it will give some focus to this debate, and we might get some more informed commentary. We need more and better thinking on this and it won’t come from the slopulist corner. The right has a great fondness for messiahs and gurus, and they will always defer to prestige, which is why they worship at the feet of David Starkey - and will listen to no others. I’m reserving judgement until we have a broader range of qualified testimony.