Thread by @redhistorian

The Lord Chancellor, Robert Buckland, warned this week that "the rule of law" must not "be misused to weaponise the courts against political decision-making". This is an excellent response by @GeorgePeretzQC (read the replies by @DinahRoseQC, too). Some thoughts of my own follow.

Buckland frames the govt's reform agenda as part of a programme to “restore trust” in the constitution. That’s a noble goal, but in practice it means that one party is rewriting the rules of Britain’s democracy against the opposition of every other. That cannot be safe or healthy

As usual, criticism of the courts is framed as a defence of Parliament. It's an admirable sentiment, but if the executive is "the servant of Parlt", why was it shut down in 2019? Why is it not allowed to vote on cuts to the aid budget? Why was it sidelined in the Covid crisis?

Buckland comes close to arguing that the only constraint needed on executive power is the limit of its own ambitions. But power is an appetite that grows with the feeding. There is a reason why every sensible constitution places checks on the Executive from without.

Buckland is right that the rule of law should stand "above party politics". So where is the attempt to build cross-party consensus? You cannot protect the constitution from "party politics" by letting one party rewire the political system, against the will of all other parties.

This is a striking phrase: "parliament makes laws that give power to the executive". That's certainly how a lot of recent lawmaking works, with "Henry VIII" clauses giving ministers sweeping powers to do anything they want. But it's neither the "conventional" model nor a good one

Buckland says the UK system is "based on checks & balances". That's not been true since 1911: a single party can control the Executive, sideline the Commons & override the Lords. If he doesn't want the courts to act as a check, which other balances does he propose to strengthen?

As @GeorgePeretzQC notes, the model Buckland praises came under fire for good reason. The Right was once as alarmed as the Left about "elective dictatorship", especially when exercised by a Benn or a Foot. And that model was itself a departure from an older, more balanced system.

If Buckland truly wants to "open up a debate", that is very welcome: there has been too little joined-up thinking about the principles behind constitutional reform. But that debate cannot lock out other parties, or ignore reviews that don't give ministers the answers they want.

The full speech by Robert Buckland is available, and is worth reading in full: gov.uk/government/spe…