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My Lords, it is arguable that Brexit is not primarily about Europe. It was about other things: austerity, inequality and immigration. To a degree, it is also about the constitution. The distaste for and dissatisfaction with the constitution that emerged from about the 1970s onwards, particularly in Scotland, has been made far worse by the atmosphere of poisonous nationalism released during the Brexit controversy.
Some of the complaints about the constitution have been exaggerated—for example, the criticism of the judiciary and the Supreme Court, which founded its view on traditional ideas of parliamentary sovereignty going back to the reign of James I. Others were more serious. The subtle interaction, as mentioned by noble Lords, of convention, tradition and precedent has been undermined, partly by the Prime Minister and partly by the leaders of other political parties, including my own. It is striking that, apart from a few generalities, the Queen’s Speech said very little about these issues.
Going rapidly through some of my points, the monarchy has of course been affected in a way that I think is very dangerous for the Head of State, with the wrong, unlawful advice that the Queen was given about the Prorogation of Parliament. Parliament itself has been treated in a most extraordinary way, with the Prime Minister suggesting at various times that he might not obey a vote of no confidence or legislation passed by the House of Commons. His view of Prorogation was the same as that taken by Charles I and we all know what happened to him.
As the noble and learned Lord, Lord Judge, said very properly in his remarkable speech, the tendency has been towards the Executive taking over the powers of the legislature—Henry VIII powers. I noticed some discussion in a newspaper article comparing Boris Johnson to Henry VIII, not to mention Anne Boleyn. With legislation, the effect has increasingly been of the Executive exercising Henry VIII powers to take over prerogative powers.
Parliament has been diminished by the way the referendum has been deemed, quite wrongly, the fount of sovereignty. After all, the referendum—whatever one thinks about the dismal quality of the campaign—was only an advisory mechanism and far too much weight has been imposed on it. It is very fortunate that we have well-meaning citizens such as Gina Miller who have taken up the role of challenging these tendencies in a way that the constitution itself has been unable to do.
We have had attempts to use Parliament or portray it as the enemy or the embodiment of the elite. That is very wrong. In passing, the Civil Service has been undermined and described as no longer being servants of the Crown, as the noble Lord, Lord Armstrong, observed. Instead, war is being waged against it by the phenomenon of Mr Dominic Cummings.
The law at least is powerful. It should be. The rule of law is so essential to the way we live. There were some interesting aspects to the famous Supreme Court case. One was that the court was absolutely unanimous in its judgment that the Prime Minister was wrong and had acted unlawfully. I notice that this view was also taken by Lord Justice Sumption. The constitutional position was stated very clearly and emphasised that judicial review is central to the procedures of the constitution. The judges are not enemies of the people; they are central to our freedoms.
Finally, I totally agree with what the noble Baroness, Lady Humphreys, observed about devolution. Devolution was threatened by the way the EU withdrawal Bill was pushed. It was very dangerous in its effect on Scotland. It also caused great dismay and disappointment in Wales and strengthened the cause of nationalism there.
In all these respects, we need to protect the constitution. It is being partly protected by the courts. Having had the great privilege of serving on the Constitution Committee with some of the distinguished speakers who have spoken, I suggest that the House of Lords and its constitution should remain the guardian of the way we live.