I recently took part in discussion on amendments to the Psychoactive Substances Bill, a measure introduced by Government to ban so-called ‘legal highs’. To achieve this, the Bill bans the production and supply of all psychoactive substances, but then proceeds to exempt certain substances from the ban. The exemptions include alcohol, which meets the criteria of a psychoactive substance as defined by the Bill and hence, without the exemption, would be banned.
It was not clear to me what the intellectual justification was for introducing a measure to ban psychoactive substances that are harmful (though the Bill introduces no concept of harm), but exempt from the ban the most harmful psychoactive substance of all. The damage caused by alcohol, both in human and financial terms, is enormous. Given that, I tabled an amendment to remove alcohol from the list of exemptions. I made clear that my purpose in doing so was to give the Government the opportunity to provide its intellectual justification for the exemption. You can read the debate on the amendment here. As you will see, I made clear the impact of alcohol abuse. I was well aware of practical and political arguments for the exemption, but I wanted to tease out the principled case for what the Government was doing.
The Opposition, which supports the Bill, offered no justification for the exemption, noting only that the Opposition did not support banning alcohol, and the minister, Lord Bates – who is very good, and listens and engages with the House – basically conceded that there was no intellectual case. The exemption was a practical matter – we are where we are and banning would not be feasible and alcohol duty brings in substantial revenue to the Treasury. The result is that the policy adopted towards alcohol abuse remains one of regulate and educate, whereas that towards ‘legal highs’ is one of banning them. I fear the Bill is a result of the ‘something must be done’ syndrome.
At the beginning of the month, I visited Langport in Somerset to take part in the 4th Annual Bagehot Debate, opposing the motion ‘It’s time for a new Magna Carta’. Held at the Huish Academy, Lord Tyler and pupil Douglas Stephenson spoke for the motion and I and pupil Sarah Allen spoke against. I am pleased to report that the superior argument won and the motion was defeated.
Langport was the birthplace and home of the renowned economist and editor of the Economist, Walter Bagehot, perhaps best known to students for his book, The English Constitution. We had a pre-debate reception at Hurd’s Hill which had been Bagehot’s home. I also had time to visit Bagehot’s grave (pictured). Barry Winetrobe, who organises the Bagehot Debates, thought the picture may be appropriate for the caption competition. I think it is quite a challenging picture, though when I have thought that about some previous pictures, readers have come up with wonderfully innovative captions. We shall see how challenging this one is. As ever, the winner will be the reader who in my judgment submits the wittiest and most appropriate caption. The prize will be one of my recent publications.
On Tuesday evening, I gave a public lecture at the University on ‘The Continuing Relevance of Magna Carta: Symbol or Substance?’ There was an impressive attendance, clearly reflecting interest in the subject. My purpose was to provide the background to King John appending his seal to a charter in 1215 and to look at the consequences of him doing so. Part of my purpose was to distinguish the events of 15 June 1215 from Magna Carta. The charter did not set a precedent for the King to accept limitations on his power – the coronation charter of Henry I of 1100 preceded it (and indeed the rebellious barons called Henry’s charter in aid) – and that of 1215 had a short life. It was repudiated in the August by the Pope. A revised charter, shorn of its radical elements, was issued in 1216 by Henry III and reissued in 1217, when provisions relating to forests were put in a separate charter, so for the first time the charter became known as Magna Carta. It was re-issued in 1225 and this was the definitive version. We in England have just as much cause to celebrate 1216 as we do 1215. Celebrating 1215, with its virtual destruction of royal authority, has a greater resonance for Americans. Magna Carta was as much a process as it was an event.
Perhaps more importantly, the charter did not do the things that are now claimed for it. It did not introduce or guarantee jury trials or habeas corpus. It was not responsible for establishing the concept of the rule of law. As Jonathan Sumption pointed out in a recent speech, there are no high-blown principles embodied in the charter. As he puts it, ‘The document is long. It is technical. And it is turgid.’ It sought to protect the interests of ‘free men’ – a rather small group in 1215. Most of the population were excluded. It was the result of barons pursuing economic self-interest. The provisions deal with matters such as inheritance, borrowing money, guardianships and removing foreign mercenaries brought in by John to fill offices such as those of sheriff. The provisions relating to justice relate to ‘free men’ and the language is less inclusive than the monarch’s coronation oath.
Magna Carta was to be reinvented, not least by the great 17th Century lawyer Sir Edward Coke, and its provisions given meanings not intended at the time. Coke’s interpretation, in Sumption’s words, ‘was swallowed wholesale by early American colonists’. It has continued to resonate around the world. What happened at Runnymede is seen as the start of an era of representative government, but that is an idealised, not to say totally distorted, view. Edward Jenks in 1904 argued that the charter was actually a stumbling block to English constitutional development. What it constituted was really the end of a feudal era.
As Jonathan Sumption puts it, ‘Some documents are less important for what they say than for what people wrongly think they say. Some legislation has a symbolic relevance quite distinct from any principle which it actually enacts. Thus it is with Magna Carta.’ We are dealing with a myth, but an immensely powerful one that has shaped behaviour around the globe.
In an earlier post, I drew attention to a chapter I had written on Parliament for the 8th edition of The Changing Constitution, edited by Jeffery Jowell, Dawn Oliver and Colm O’Cinneide, and being published by Oxford University Press. The chapter is entitled ‘Parliament: A New Assertiveness?’ The theme is apparent from the title – I reproduced the abstract in the earlier post.
I am pleased to report that the book has now been published. I received my copies this morning. The book is a substantial volume of 420 pages and is divided into three parts, covering the constitutional framework, the institutional context, and regulation and the constitution. If you have not yet done so, feel free to beat a path to your local bookseller.
I took part last week in the debate on the Queen’s Speech on the day when we focused on constitutional issues. I was concerned not to address particular measures, but rather to stand back at look more broadly at what was being proposed. Part of the problem has been that measures have been debated on their individual merits, but not considered in the context of the constitution qua constitution. As I put it:
The gracious Speech makes the case for something that is not in it. The same can be said of many Queen’s Speeches since 1997. Successive Governments have introduced significant constitutional changes, but the changes have derived from no clear view of where we are going.
I used the opportunity to make the case for a constitutional convocation. The terminology is deliberate. The term ‘constitutional convention’ carries too much baggage, often denoting a body created to write a new constitution. I don’t want a body to tell us where to go. I want one that helps us make sense of where we are.
The speech can be read here. It is relatively short. Because of the number of speakers in the debate, there was an advisory speaking time of seven minutes. I spoke for seven minutes.
The death of Charles Kennedy came as a great shock. He will be much missed. He spent the whole of his working life as an MP and I knew him for most of his years in Parliament. He was not only a distinguished politician, but also a great House of Commons man. He took the institution seriously. This rather distinguished him from Tony Blair when he was Prime Minister. Charles once told me that whenever he met Blair and raised the issue of parliamentary reform ‘his eyes just glazed over’.
I remember him especially because of his kind words about me, and the report of the Commission to Strengthen Parliament, which I chaired, when the House debated it in July 2000. (I was going to reproduce his comments, but decided not to as it would be more about me than him.) His generous speech was typical of the man. He was thoughtful with no side. He was also good company. There was also a Hull link. He married a Hull graduate, to whom he had been introduced by her brother, a Hull politics graduate. He is a great loss to British public life.
Various media have now corrected the claim that Mhairi Black, the 20-year-old SNP MP, is the youngest MP since 1667. The Times Higher Education carried an article reporting on my posts pointing out that she is the youngest since 1832. The Times published a letter from me to the same effect. The Guardian also published a correction in its ‘Corrections and Clarifications’ section last week. You can read the online version here. However, note the further correction at the bottom of the page. In the published version, the notice referred to me as ‘Lord Nouth’. The following day, they published a correction, giving my correct name. As regular readers will know, my name has been rendered in many strange forms. This, though, is a first.