 Right, well, welcome everybody. Thank you so much for attending our event this evening. My name is Rebecca Freund. I am a director of the Cambridge Pro Bono Project, which is otherwise known as the CPP. And on behalf of the CPP, I'd like to welcome you all to our event this evening, which is part of our ongoing speaker series. And then by way of very brief background, CPP is now in its 11th year. We run a research program out of the Faculty of Law at Cambridge, where we partner faculty members and grad students with leading barristers, chambers, charities, and NGOs to produce targeted research on issues of contemporary social significance. Then alongside that work, we also provide a network here in Cambridge for students and faculty members with an interest in pro bono and human rights. And to that end, we've started this regular speaker series. So as our speaker for this evening, I would like to very warmly welcome Professor Sir Jeffrey Joel QC, who will speak on the topic of whether the UK constitution is fit for purpose. We are also excited to be partnering with the Cambridge Center for Public Law this evening. And the director of the Center, Professor Alison Young, joins me on the panel. And she'll briefly explain about the CPL and then introduce our eminent speaker. And then the last phase that you see on the panel is my colleague, Kacha Akhman, who is also a director of the CPP and will help with questions this evening. Thanks, Alison. Thank you. Thank you, Rebecca. And also like to pass on my thanks on behalf of the Center to both you and Kacha for organizing this so brilliantly. The Center for Public Law is a center which gathers together the current faculty members and postgraduate students who are researching in or interested in public law. So we organize speeches. And at the moment, we're also in the process of gathering together to submit evidence on the independent human rights review. So we're all very busy, engaged in that. And we're all poised to take down what we know will be wonderful pearls of wisdom from Professor Sir Jeffrey Joel that we can then sneak into our report and pretend we have the original wisdom. It gives me great pleasure to introduce our Professor Sir Jeffrey Joel QCKCMG to you. I've known Jeffrey for a while, because we both have the honor of having the members of Hartford College, Oxford. So this is our joint connection. So if you hear lots of honor towards Hartford, Hartford Onions, that's why. So Jeffrey originally completed his first law degree in Cape Town before continuing his studies at both Oxford and Harvard. He has had a distinguished academic and career, a career and a career at the bar, finalizing as Professor at UCL. And he's still a barrister at Blackstone Chambers. And you name any aspect of human rights and public law and you'll find not only has Jeffrey written on it, but probably written the defining word on it. And so he has an array of publications in these areas, including as we were saying earlier, the wonderful edited collection, which he does with Colomoconade, The Changing Constitution, and is also co-rights to Smith on judicial review. He was also the first director of the Bingham Center for the Rule of Law. And if that was not enough, he's also been a member of the Venice Commission. So we are absolutely honored and privileged to have him talk to us this evening. And I for one can't wait to hear what he has to say. So Jeffrey, I'll hand over to you. Thank you very much, Alison, for those kind words. I feel honored too to be here with you all. I'm asking whether the UK constitution is fit for purpose. So start by saying what I mean by the UK constitution and then ask, go on to ask how the constitution I identify has been doing of late. And then I'll end with what I mean by fit for purpose. And on the last point, fit for purpose, I will argue that the purpose is not only a domestic one since democratic maintenance also has a very strong, a very powerful international dimension. So briefly, what is the UK constitution? That seems a pretty basic question for this audience. And as we all know, our constitution is of course, almost alone in the world as being uncodified in the sense of not being written down in any one place. But there are still very distinguished commentators who say that our whole constitution can be summarized in just eight words. And that is quote, what the queen in parliament enacts is law. In short, parliamentary sovereignty is all you need to know before breakfast. And that is of course a not correct, not correct empirically, it's not a correct conceptually, empirically because any constitution consists of rules and principles which enable government to take place which establish decision-making powers and structures. However, a properly democratic constitution which we aspire to also contains principle and rules which disable government. Now, our chief enabling principle, one gives power, establishes institutions is indeed representative, the principle of representative government, namely that public policy is ultimately in the remit of those we elect to parliament, sovereignty of parliament in that sense. But there are of course a number of other rules laid down in statutes and common law such as relating to elections, judicial appointments, balance of power between the center and the nation, the role of the civil service and so on. And all these make up the full range, the panoply of constitutional directives enabling the exercise of public power and setting out its procedures. And then there are the disabling powers which as I said, distinguish democracy properly so-called from what Dicey referred to always as despotism and for him the primary principle was the rule of law narrowly defined by him, but sensibly, sensibly identified in addition to constitutional conventions to which these days we can add further constraints on power such as those contained under the Human Rights Act. And these disabling features of our constitution are key to a full democracy, a rights-based democracy as opposed to what Ronald Dworkin called a statistical democracy where the greater greatest number wield all power unconstrained. A constitution has been described as a document a document written by John or Jane when sober to control John or Jane when drunk. And as we learned during those searing years of the 20th century experience in Russia, Nazi Germany, and so on and so on, when popularly elected governments did unspeakable things to their own people, it is the disabling or constraining parts of the constitution that seek to maintain democratic sobriety. So, so much for our constitution and how do we test whether it's up to scratch? There are many who say that whatever the merits or defects of our uncodified constitution in theory, the fact is that our somewhat obscure constitutional arrangements have on the whole served this country reasonably well, at least in good time. And I tend to agree with that but a constitution is not tested, not really seriously road tested in good times but in bad times when Jane or John have indulged too much and when quarrels about numbered quibbles which perfectly describes the past four and a half years in this country following the June 2016 referendum and then during this COVID period both of which have thrown up doubts about a number of our constitutional structures. What a constitutional stress test it has been. So let's see how that system fared during those years. As you will know, the June 2016 referendum was held on whether we should leave the European Union. Brexit was supported by just over 52%, sorry, 52% of those voting. And at that time, a substantial majority of members of parliament supported remaining in the EU. Could it be said that they delegated their power in this case to the people as would be the case in what is called a popular democracy unlike our representative democracy. So they have to follow what the referendum said the majority, even though a slim majority in favor of Brexit. No, the referendum said absolutely nothing about whether its result was to be binding on parliament. Previous referendums, even in quite recent ones have made that clear either way. They've said whether it's to be binding on parliament. This one didn't. So most of the political wrangling over the next year and a half had to do with the serious confusion as to how to resolve the tension between the power of the populace as expressed in the referendum and that of parliament whether we are in fact a representative democracy or a popular democracy. And the matter was complicated by the fact that the question put to the people was not really suitable to address the different ways in which Brexit might be achieved. Yes, no to Brexit, but what kind of Brexit in or out with the customs union in or outside the single market with or without an Irish border and so on. There was no direction on any of these crucially hard decisions which ideally, ideally I should have been before the electorate. And in addition, and this astonishes foreign constitutional lawyers most of all in countries with written constitutions where constitutional change is where constitutional change is proposed and leaving the EU by the way as a massive constitutional change for this country. There is normally required to be a super majority, two thirds or more or as in Australia a majority vote of the people, majority support of the states and so on. The Brexit referendum by contrast simply asked for a simple majority. And in the end, when breakfast was Brexit was finally agreed by parliament again only a simple majority in parliament suffice. In the meantime, between the date of the referendum and the acceptance of its result by parliament there was much indecision near chaos which has since then flowed like a tsunami over our constitutional arrangements and is still so flowing. It started with the unholy row about who it is that should trigger Brexit under the now notorious Article 50 of the Treaty on the European Union which provides that any member state may decide to leave the European Union in accordance with its own constitutional requirements. I think that in those countries that might be a simple question. It's written down, it's there, we can see it. But where was it written here as to in this novel situation? Prime Minister May, who succeeded David Cameron who brought the report on the referendum thought it was she alone, the executive who should give the notice of Brexit on the basis that the will of the people was binding and it was for the executive branch of the government to notify the EU of that. After all, this was a matter of international affairs which is under the prerogative of the crown. She said, exercised by the executive through the PM and the executive has power to enter into treaties with foreign governments and can therefore cancel those treaties. But Mrs. Gina Miller, a brave citizen of this country, a layperson disagreed with this interpretation and challenged the PM's power to do so without the authority of an active parliament. And the dispute first went to the divisional court consisting of three senior judges who decided unanimously in favor of Mrs. Miller and said that Mrs. May was wrong, that the result of the referendum was binding for a start and that it was for her simply to implement the will of, for her to implement the so-called will of the people. The court was absolutely clear that the effect of any referendum must depend on the terms of the statute which authorized it and they made the observation that the act was silent on whether it was binding. And therefore they felt that the force of the referendum remained political rather than legal. And on Mrs. May's submission that article 50 is a treaty obligation which is a foreign relations prerogative and therefore within the competence of the executive, the court held that although article 50 operates on the international plane, it is a treaty obligation. Domestic legislation, namely the European Communities Act 1972 incorporated EU treaties into UK law and that the withdrawal from the treaties by means of article 50 would result in changes to domestic law involving the loss of a number of rights. They mentioned that I don't have to go through all of them but these rights, domestic rights that would be lost such as employment protection, the right to vote in the European Parliament, custom duties, VAT, et cetera, agricultural grants, fishing quotas, environmental control, immigration, passporting of manufactured goods and services. These rights could only be changed and should only be changed by those we have elected to make or amend or repeal laws on our behalf and could only be changed by Parliament under the principle of Parliamentary sovereignty. Now, all this is really, you know, lawyers' law and shouldn't create a huge fuss but perhaps because of the lack of precise guidance under a basic constitutional document, the divisional court's judgment created one of the most unholy rous ever experienced by our judiciary, a bare knuckled scrap that both sections of the press and some of the executive have been waging against the judiciary ever since. The male newspaper, for example, sensing that their cherished Brexit might be jeopardized if the decision went anywhere near Parliament, published an article with a banner calling the three senior and respected judges who decided the case at first instance as enemies of the people who had declared war on democracy by defying 17.4 million voters and the many other newspapers, conservative newspapers had similar views and elsewhere allegations were made about the impartiality of the judges who decided the case as well as those who would later hear it in the Supreme Court on the ground of their European connections. And the press even made it known that one of the judges at first instance was quote, unquote, openly gay. He never tried to hide that fact but they berated him for admitting that he was openly gay and even the claimants who initiated the case were derided and belittled. Now this onslaught, as I said, was waged by the press, some of the press but the fingerprints of the executive were also upon it and the context is important because in 2005 reforms were made to judicial appointments which appointed a law chancellor and secretary was then also secretary of state for justice and provided that he need not be a lawyer. And therefore he or she was put under an express statutory duty to respect, protect and defend judicial independence as well as the existing constitutional principle they said of the, said that the act, constitutional reform act of the rule of law and the law chancellor during these attacks on the judiciary was Liz trust now trade secretary who took a long time to react and then rather the conically after a few days said only that the independence of the judiciary is the foundation upon which our rule of law is built no more than that and the prime minister this is made briefly expressed her support for both judicial independence and the freedom of the press. And in a subsequent letter to the times the law chancellor expressed her confidence in the judges in the Miller case that refused to go any further so as to about interfering with the freedom of press or to censor headlines which he did not believe had imperiled judicial independence. So one of the constitutional questions here is whether the law chancellor should have invoked her duties to protect the rule of law and judicial independence by rebutting the press charges more vigorously than she did. Of course, the law chancellor need not intervene on each occasion media attacks a judicial decision but was this one occasion where she ought to have done that? Because this was in effect an attack that challenged the integrity of our judges and their legitimacy to pronounce on matters that have any political engagement. And the court's decision was miles away from seeking to alter the referendum's result. It simply decided that the question as to whether it was the executive on the one hand or the legislature that should give notice under article 50. And in addition, of course, the personal attacks on Mrs. Miller, a smack of the kind of intimidation of civil society organizations which facilitate the litigation of human rights issues in a number of authoritarian countries today that threatens access to justice which is a key ingredient of the rule of law. When the matter went to the Supreme Court, the justices were by no means cowed by the press and held by a firm majority. Again, in favor of Mrs. Miller and against Mrs. May invoking an even broader argument to the effect that because the 1972 act that brought us into the EU that changed all our constitutional arrangements making the EU sovereign in a number of matters and an independent source of law therefore withdraw from EU institutions, constitutes a fundamental change to those constitutional arrangements which could not be done by the executive it's not an international matter. Local domestic constitutional matter and this was a clear function of parliament. Another issue in Miller was whether the UK government could make the significant decision to depart from the EU without the consent of the devolved institutions in Northern Ireland, Wales and Scotland. Of course, we are now a multi-layered constitution albeit not yet quite a federal structure. There is a convention which was first stated by Lord Sewell who was minister of state in the Scottish office in 1998 that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament. And it was acknowledged by the Supreme Court that this expectation had been observed over the years and was in fact a constitutional convention. And not only that but it had received statutory recognition. It had been incorporated through section two of the Scotland Act of 2016 which governs the lawmaking powers of the Scottish parliament to read it is recognized in the statute the Scottish act, Scotland act that the parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish parliament. In Miller, the government of Scotland submitted that the Sewell Convention should be judicially endorsed and enforced. Firstly, because it was a constitutional convention and after all Dicey said these are terribly important constraints on government and they work and they operate and they are real. And secondly, because this convention had also in Scotland's case being incorporated into the Scottish act. However, the court held that judges are neither the parents nor the guardians of political conventions. They are merely observers while the existence could sometimes be recognized as you say how it could be recognized. Their validity cannot be the subject of judicial proceedings. And as for the Sewell Convention it operates only as a political restriction on the activity of the UK parliament. In other words, it was simply a political deal couldn't be enforced as a legal obligation even though it had been incorporated into the Scottish act, Scotland act in that way. Now that aspect of the Miller decision therefore kicks away a vital disabling feature of our constitution by relegating convention. And many constitutional courses begin by doing that, sovereignty, rule of law, conventions of parliament as if they really mean something but this relegates them really to just political deals alone not enforceable in any court of law. And it revives the question of the constitutional resilience to other constitutional conventions such as ministerial responsibility for example, to parliament for their errors, collective responsibility, individual responsibility, the right of the monarch to interfere in politics and so on, the real question under a number of those conventions how binding they really are. Well, in June of 2019, Mrs. May stood down as PM and Boris Johnson succeeded her. And as those of you who were here at the time will know time and time again he too failed to get parliament to agree to his wishes. And in August, 2019, fed up to the teeth with parliamentary obstructions of his plans, he sought to prorogue parliament that is to bring the current session of parliament to an end. And in order to do that, he had to advise the queen to do so for it is her prorogative by convention not a convention here, on the advice of the PM. Now, prorogation at that time of year in August when the party conferences are held and MPs want to relate to their constituents and their party, that is fairly a routine. But on this occasion, parliament would be prorogued for up to 34 days, crucial days after which it would be nigh on impossible for parliament to avoid the then deadline for leaving the EU by default. That is the end of October when parliament is prorogued neither house can meet, debate, pass legislation, debate policy or ask questions of the minister. So everything's in stasis, nor meet to take evidence even in committees. In other words, parliamentary scrutiny of the executive would be suspended in the run up to exit day, 31st of October, 2019. And this was challenged by Scottish MP, Joanna Cherry and the Scottish courts held that the matter was able to be challenged by judicial review even though it was prorogative power. And in the English courts, it was held at first instance that it was not able to be decided by the courts. It was a matter to be decided through political accountability alone rather than legal. So the Supreme Court was then asked again, Mrs. Miller coming into the case, Miller number two, and had to decide whether the Queen's exercise of the prorogative in this case, to which she had agreed the suspension of the prorogation, was lawful. Well, it wasn't actually put to the court in that way, but put more, whether the PM's advice to the Queen to disband parliament was lawful and justiciable in a court of law. And if so, by what standards was it to be judged? And the Supreme Court unanimously held as follows. First, although the matter was political in the broad sense, almost all important decisions made by the executive had a political view to them. That's surely right, isn't it? This case really was bog standard judicial review of the actions of the public official. Prime Minister, you advised the Queen to prorogus for 34 days, did you do it for a lawful purpose? Were you trying to get away from any parliamentary scrutiny or not? The official in this case happens to be the PM, but PMs have been judicial reviews in the past. This is that sure was. And many, most judicial review cases are decisions in some way about politics or public policy and in that sense, political, whether it's a planning case or a social security case and so on. The court was surely right about that. Secondly, the Supreme Court held that the fact that the executive was accountable politically to parliament did not mean that it was not legally accountable to the courts. The courts would be performing their proper function and by holding that the prorogation was unlawful, which they did that would by no means be violating the separation of powers. It was also decided that even the prorogative power in this case has limits. And since the power is recognized by the common law, its limits may be determined by the fundamental principles they said about common law constitution. And one of these is parliamentary sovereignty. And in this case, the principle could be undermined by the principle of parliamentary sovereignty. If the executive could, through the use of prorogative powers, prevent parliament from exercising its legislative authority for as long as it please. So the court interestingly, broadens the notion of parliamentary sovereignty, saying it doesn't only mean that parliament can make any law, but also that the PM and cabinet, the executive, are themselves accountable to parliament. And this principle, it said the Supreme Court, lies at the heart of Westminster democracy. And the principle is not in jeopardy, parliament is proroged for a short time, but the longer the parliament stands to be proroged, the greater risk responsible government may be replaced by unaccountable government, the antithesis they've said of the democratic model. It's quite interesting though, Boris Johnson brought absolutely no justification may or may not have been pressed by his lawyers to say, why are you proroging parliament? Never denied nor affirmed that he was doing so for any reason whatsoever. So there was no justification, which I think led the court more easily to say that these were irrelevant, unlawful, extraneous considerations, even in making a decision which has such broad discretionary power. Mr. Johnson was less than gracious about second Miller case, he accepted the judgment, he did accept the judgment, and parliament immediately reconvened, but he said that the court had got it wrong. So what are those two cases in particular so far, tell us about the resilience of our constitution? So far we see that the stress test of the past few years has revealed very deep divisions as to what the rules are of the constitutional game, as well as a few alarming fault lines. The most important being, the really important question and the dissension and confusion about the question, which is where does power reside? Fundamentally basic question in any constitution. And what is particularly interesting is that those who normally proclaim parliament power must reside with parliament have shifted to heralding the supremacy of the executive. Let us recall that both Miller one and two both provided that it was parliament rather than the executive that should prevail. Yet we have this, after the December 29 election which re-elected Boris Johnson so easily, the newly appointed attorney general, Suella Braverman, wrote before she was appointed, just before she was appointed, the judges have made a chronic and steady encroachment on the political arena. And in verging the Brexiteers' favorite slogan, she urged parliament to take back control, but parliamentary control is precisely what the Supreme Court decided in Miller, both Miller cases, which were the cases that she had a right on that she was predecessor. Her predecessor, the attorney general, Jeffrey Cox, said after Miller two that there may very well need to be parliamentary scrutiny of judicial appointments because of these cases. Here again, we see that the judges, as we saw with Miller one and the press gang against them, the judges are being depicted as the four guys for obstructing executive power. Quasi Quarteng, back in the cabinet, claimed after Miller two that the judges are biased and they're getting involved in politics. Jacob Reese Mogg denounced a constitutional coup. The Queen's speech presaged a new commission called the Constitutional Democracy and the Rights Commission, clearly aimed at so-called activist unelected judges. I make no suggestion of equivalence in this issue, but this is precisely what is happening in countries like Poland and Hungary and Turkey today. Of course, it's not equivalent and not suggesting it is, but we see there that the courts are being attacked, the courts are being attacked for blocking the wholesale allocation of powers to the executive. A think tank close to the government policy exchange created the judicial power project, which some of you may know about, to deal with so-called judicial overreach. It is considering various measures to curb, not the power of the executive, not the power of parliament, but the power of judges, including no longer allowing activists like Mrs. Miller standing to sue, to take cases to court, including putting more politicians on the Judicial Appointments Commission, including taking up Cox's view of parliamentary scrutiny of judicial appointments as in the United States, perhaps lowering legal aid for judicial review cases and even putting the Supreme Court clipping its wings and putting it back in the House of Lords. Professor John Finnis in two papers on the Judicial Powers Projects website criticized the unanimous decision in Miller too as constitutional heresy. And Lord Forks, who was a Justice Minister under a David Cameron's government, wrote a preface for one of Finnis's articles in which he said that the decision was an assertion of judicial power that cannot be justified by constitutional law or principle, that is a Miller too. Lord Forks is now heading what is called an independent review of administrative law. One of the two committees that's been set up following the manifesto commitment that I mentioned and look into all this. This is shortly to report. I actually believe that Lord Forks to be both very able and independent, but it is doubtful that his appointment to chair the independent review of administrative law is seen to be independent because of those statements. In the meantime, it should be said that very recent polls show that more than four-fifths of Britons trust judges as opposed to less than one-seventh who say the same about politicians. But attacks on the judiciary are just one aspect of the confusion. Let me just summarize where we are so far. First, the Brexit referendum has demonstrated the tension between trying to be a popular democracy with a representative system of government. The majority of our MPs did not want Brexit, yet there was a strong view that having asked the electorate they should follow their decision. Secondly, twice in the last four years have the executive sought to usurp or curtail the legislature. It is true that courts have put them right. But as we have seen, it is doubtful whether the authority of the courts has actually, deeply, internally been accepted. Either way, there is uncertainty and conflict that unsettles the constitutional consensus of the past 136 years since Dicey. This particular issue continues as under the EU withdrawal act of 2020 where at least 24 powers have been identified which will allow the executive with minimal parliamentary oversight to enact delegated legislation that is lawmaking without parliamentary scrutiny of the usual kind and read the Bingham Center for the Rule of Laws commentary on the EU withdrawal act and also on COVID legislation which again gives many more powers than ever before to the executive without parliamentary scrutiny. Of course, there is an emergency but this is precedent for the future. Thirdly, as I've said, the cement of our unwritten constitution conventions have been challenged in different areas and we see the Prime Minister now wishing to break the longstanding convention that requires chairs of parliamentary select committees to be elected by Parliament itself insisting that he has a right to appoint them himself. There is sort of, so there is a kind of continuation that these cases have impact, they have influence. And finally, through all of this, we have seen one institution seemingly acting independently and with intellectual activity, the integrity that is the courts and it attacks, extraordinary attacks upon them which threatens to unsettle, to unsettle, not destroy, but to unsettle perhaps the most fundamental part of our democratic fabric and that is that of an independent judiciary acting under the rule of law. But there are also other imperfections that I have not had time to cover and I just mentioned very briefly before concluding. But perhaps most concerning of all in terms of the rule of law, you'll recall that almost a year ago we left the EU under the terms of a withdrawal treaty which was fully signed and agreed by the United Kingdom between us and the EU. And much of that treaty related to the border between Northern Ireland, which is part of the UK and the Republic of Ireland, which is within the EU, a delicate matter on which the Anglo-Ireland, the Good Friday agreement before peace to Northern Ireland had agreed to. But probably in order to improve his negotiating power in the recent EU, UK negotiations, Boris Johnson proposed that he should be able to break that first agreement, treaty agreement to renaig from a clear treaty obligation. And I went into the details at this point but two very senior officials resigned as a result the Treasury solicitor and the Attorney General for Scotland, some conservative MPs and a number of former prime ministers questioned the bill and it was eventually dropped. But whether or not this power would have been employed, a power to renaig from an international obligation, it seems astounding that Parliament itself was even able, even asked to sanction a blatant violation of the rule of law on the international plane. Other matters, we have a long tradition of an independent and impartial civil service. This too is under threat, as we have seen with the appointment of external advisors. Dominic Cummings is just one of them who have been in favor of replacing traditional civil service heads with more selective and overtly political appointments. There's our system of devolution. At the moment, it's neither federal fish nor regional fowl. But the Union is indeed now seriously threatened post-Brexit by Scottish independence and possibly even by a united Ireland. And finally, there's the issue of the House of Lords. There have been attempts to reform the House of Lords. They've never come to fruition. House of Lords is more effective in some ways perhaps than any opposition has recently been. They've got some great people on them doing incredible work of scrutiny of legislation. And it is true they only have limited power to delay legislation agreed to by the House of Commons. But there's something deeply corrupt about the place because it's an institution which blatantly appoints people as legislators, our legislators that we cannot ever remove if we don't hike them on the ground that they've contributed to the coffers of one political party or another. Again, constitutional lawyers elsewhere are immune. What you are corrupt comes to how can you allow it? They say. And it is here that we should not neglect. Well, I should say first that I'm not saying in the criticism of the House of Lords or any other criticism here that our constitution as elusive as it is is not worth the paper it is not written on. I'm not saying that. But on the other hand, I'm not saying. But what I am saying is that it is a constitution that is surely and demonstrably in need of serious repair and renewal and that delayed maintenance, whether in the area of building repair or your own physical repair came to the dentist and so on. Delayed maintenance is always a dangerous course. And it is here finally that we should not neglect the international perspective. Internal conflict and dissension, that's one thing. But we have to recognize that democracy in general, we have to keep this in mind. Democracy in general is presently in a mighty existential battle with the forces of authoritarianism internally. Perhaps the greatest danger is China promoting its model of autocratic capitalism through trade and investment. Countries that otherwise have followed the Western model after the fall of the Soviet Union and countries in the developing world see China gaining in wealth and confidence under the iron rule of Chairman Xi Jinping. Some countries that have embraced democracy are being eaten away from the inside by nationalism, religious extremism and corruption. Turkey, Brazil, Philippines, former success stories are now imprisoning critics and marginalizing minorities. Places like Hungary and Poland that I've mentioned are specifically pointing to just the kind of chaos and lack of confidence we have been experiencing in the UK. They've been pointing to us, they've been pointing as well to Trump's USA as proof they say that the illiberal democracies represent the future and not the liberal democracy. I'm afraid that failure at home does these days contribute to democratic erosion abroad. Democratic renewal, maintenance, needs to bind together domestic and foreign policy. If we diminish our commitment to international standards of human rights, to the sanctity of treaty obligations, to the legal control of government and the rule of law, and if we show scant concern for the repair and renewal of our constitutional imperfections, then there are models in other parts of the world where the executive possesses overwhelming powers which the courts dare not challenge which will be turned to with much more in business. Thanks, happy to answer that. Thank you so much for that really incredibly enlightening and thought provoking discussion that was really, really wonderful to listen to. Thank you. Katja, would you like to manage the questions? Yes. Okay, so we do have a couple of questions. The first one is from Kieran Spurz, I'm hoping pronouncing this correctly. While we cannot say the UK constitution is invulnerable, is one lesson we can take from the long years, is that our constitution has flexibility and resilience to withstand major changes such as Brexit? You've fed it off for just a minute. One of the lessons we can take from, I didn't hear those words, from the last few years I think you said, is that right? I know that Katja's work is a little bit sketchy. Katja, do you want me to just repeat it? Maybe you repeat it, yes. Okay, no problem. So the question was, while we cannot say that the UK constitution is invulnerable, I think a point we've discussed quite clearly, is one lesson we can take from the last few years that our constitution has the flexibility and resilience to withstand major challenges such as Brexit? Yeah, thank you. Yeah, maybe. We don't know yet. There is, I think there's a fault line. I think there's a huge battle ahead. As I said, the language of the constitutional discourse has become heated in a way that it has not over many, many, many, many years. The executive, I think, is asserting itself and continues to do so more and more. And the courts are under attack. And there are many, many other features of the constitution that are simply imperfect. There is, you know, we're all mostly continuing as we have continued in the past and government has more or less impact upon us. Flexibility is probably a good thing. I'm not here contending for a written constitution of a kind that takes away a lot of any kind at the moment or any, I think it's politically practical at the moment. But I think the way to come to it is perhaps not to do what is being done quite a lot these days to say, if we are going to somehow overhaul our constitution in a big way with a view to writing it all down at some future time, we should think about how are we going to do this? And should we have street meetings? Should we bring together the whole population? Should we have a television program addressing only constitution matters? I think it's terribly important questions. But much more important is what needs fixing. And I've pointed to quite a few of these, which I do think need repair and need attention and need thinking about and renewal. The issues that I've raised are perhaps less dealt with in the public eye, dealt with in public discourse at the moment, but then those from the Judicial Power Project who are very clear what they want, they have a very clear agenda. And those looking more broadly and saying, look, there's so many tears in our constitutional fabric. So much is unclear that it needs to be repaired one by one, if not in a wholesale way through a little constitution. This kind of constitutional repair is to a large extent being ignored. Right, thank you. If I can move on to the next question, it comes from Matthew Sikaris, who's another director of the Cambridge Pro Bono Project. And I think the question relates quite directly to his own area of research. He says, thank you for an excellent talk. One fault line in the constitutional stress test that you identified was the question of where power resides. In particular, can we hold to the view that we are a representative democracy with parliament at its center, or are we now moving to some form of popular democracy, at least politically, if not legally? And his question is that if the aim of the constitution is to preserve the sobriety of a dynamic living democracy, how do we reconcile these new calls for popular democracy? Do we ignore them or do we recognize a convention on holding referendums for important issues? Do we do something else? Okay, I think that's a very interesting question as well. And I would say this, that if we are to hold referendums on any particular issue, and it might be interesting to do so on one or two occasions in the future, on particular matters, we must first of all indicate, we must do our constitutional due diligence. There was a fantastic lack of constitutional due diligence in the 2013 referendum act that set out the 2016 referendum. I mentioned a few of them. This was a basic constitutional question should be asked for a specialist super majority that has been done from time to time through referendum in this country. Does the matter allow of a yes-no answer? Was it really too complex to say yes-no? Yes-no answers are good for something like, should women have to vote? That kind of thing, yes or no. Should there be a right to same-sex marriage? Yes or no? But if you're saying yes-no, perhaps there's different models, much more complex to do that through a referendum. That has to be thought through. And then of course, the final question is, is it going to be binding on parliament? Or is it not? Is it going to be a parliamentary decision, representative majority to prevail? But I think there's room occasionally for a referendum if we really seek on a matter that is not human rights, perhaps sensitive, or can be resolved by a referendum to have a referendum, that one has to do one's constitutional due diligence, which was absolutely not done. The only person in parliament going back to the debate before the 2013 act setting up the referendum that raised the question at all about whether it should be binding on parliament was Alex Summoner. Right, thanks very much. The next question is perhaps one we've been skirting around. It's from Alex Alan Franks. And she says, thank you so much for this fascinating talk. How would you suggest we remedy the problems that you've raised here tonight? That's not what we've been skirting. The classic question, do you think the UK should have a written constitution and would it ever be possible to agree on one? So is this question about a written constitution? But yes, yes, sorry, I didn't see it on my screen. Well, there are huge advantages to a written constitution. And if we were to take a statistical view of this one, which is just about the only country in the world that doesn't have one. So you might think that that's a better way to go. But on the other hand, we don't do too bad. We haven't done too badly over the years. The great advantage for me of a written constitution is that some of these completely fresh questions that we had to grapple with in bad times we had to grapple with and it cost a lot of money and took a lot of time. And there was a huge uncertainty and vituperative exchange during it. That's not to say that a written constitution will have everything written down perfectly, but much more so than we have now. The great advantage to me, so let me say what I was about to say is that it will be accessible. Be taught in schools. And remember, constitutions aren't only about rules of who does what, how elections are held and so on. Beginning part of a constitution is usually, certainly in post-conflict countries, what are our basic values? What do we stand for? Go to the San Diego South African Constitution 1994 after the apartheid years. What was a apartheid written like? Wasn't only racism, it was also autocracy, tyranny. So it begins with never again, Fred, never again will there be this kind of equality. Never again will there be, will we not follow the rule of law? Equality, respect, individual respect for each individual. So it's a way of inculcating our values deep in our public decision-making. It's taught in schools. It's taught in the police station. So those are the advantages of the constitution. The disadvantages are, particularly if you require a very high majority, the Myanmar constitution, which I've worked on quite a bit over the last few years, requires a 75% majority vote for constitutional change. Almost impossible to achieve, especially in that country, where you have 25% representation in parliament from the military who will not let go of their powers and not allow their constitution to be changed. So it depends, it depends. I think a huge advantage is to a written constitution. It's all in one place, you see it there. It's possible. It has been done. There have been exercises of just committing what we have now to writing, being very successful. But people are scared that it might bind us too much for what we know now and weren't allowed for the kind of flexible incremental change which will give us freedom in the future. Thank you so much. So would you be so kind to answer a couple more questions for us, not too long, but I think it's a really, really interesting conversation and we have so many questions. So perhaps just a couple more if you wouldn't mind. Thank you. Great. So the next question we have is, what are your thoughts on the codification of prerogative powers? I think the codification of, well, it depends which. I mean, in a sense, the prerogative power of treaty making as being a prerogative power of the executive has never been much in issue. Some people think this is a power that ought to be operated by parliament. First, you've got to decide what your policy is. And so I think the answer there is it depends which prerogative power and it depends on why you want to do so. The moment treaty making is up there, on the other hand, parliament have much more scrutiny over treaties now than they used to have. So the policy decision was taken, give parliament much more scrutiny over treaty making, but nevertheless, the ultimate treaty making power is still at the international level that then has to be confirmed by parliament. And so the one prerogative prerogation of parliament, there are some who say this must be an absolute power in the hands of a majesty on the advice of the prime minister that's exactly what we have now, but we've been seen that that power can be challenged. Should any prerogative power be totally unchallengeable in the courts? More and more the courts saying, this is a prerogative power, but we feel that it's just a discretionary power that we would think ought to be challengeable. So I suppose I'm going round and round on this one, but my answer is that if the prerogative powers were written down, the advantage would be that they could be judicially reviewed regarded as any other powers, some of them will be not very justiciable, the granting of honors and so on, that kind of thing. Not easy to challenge, but in some cases, yes, perhaps you could challenge it if an honor was given to a total road like me. Thank you. Thanks. So trying to perhaps draw some of the themes of some of the questions together, there's a lot of interest on the balance between, as Stevie Martin puts it, the concept of absolute sovereignty in the face of executive assertiveness. So there are a range of questions, such as one from John Allison, who asks whether the outcome of privacy international reveals the success or shortcomings of the UK's unwritten constitution. Perhaps it's similar but different to ask about whether we think that there's a new vision of parliamentary sovereignty at play and the relationship between parliamentary sovereignty and executive strength in terms of how the constitution is developing. Perhaps it'd be possible to kind of try and answer some of those questions together. Hello, John. I can't see you. Hello. Very good to be in the same room with you. Well, privacy international was a case of an asked-to-clause, a clause seeking to ask the jurisdiction of the court. I was one of the counsel in that case and we in that case had to try and decide whether we were going to actually challenge the notion of sovereignty of parliament to the extent to assert that the parliament can never ask the jurisdiction of the courts. We didn't quite go that far but if you look at Lord Conworth's judgment, it comes pretty close to saying something like that. There may, it used to be until the hunting case that parliamentary sovereignty was considered inviolable. And in that case, too, in that case, it was some hypotheticals would put forward such as what if parliament said, we're going to suspend all elections for the next five years. Could that really be, should that not really be challenged under the principle of the rule of law? Dicey in 1885 said, parliamentary sovereignty is our primary principle. Rule of law is a principle, very much so, a principle. And that was a genius to show that there were constraints upon absolute, even parliamentary power. But it is very much second fiddle to parliamentary sovereignty. And I think this has been questioned not only when an act of parliament is obscure, but by the kind of hypothetical examples that have been put forward. We may never get to that stage. This may never happen. But it is very difficult to gain say that if parliament were to suspend all its activities for four years after the invasion of parliament, who would ever think that parliament could be invaded, that anybody could take over parliament, shades of the United States recently, who could ever think that things like that could happen. But the rule of law might prevail. But certainly, and I think that the government is intent on preserving executive power, seems to be, well, no doubt, bite back on privacy international at some point and try and draft a clause that is absolutely judge-proof. And perhaps there's a great deal here of creative tension between the courts and parliament to see whether in the end be the rule of law that does, in some way, cut down to size for full possibilities of parliamentary sovereignty. Thank you. Perhaps we'll just do one or two more questions. I just want to perhaps abuse my role on the panel and ask Alison in particular if you had any questions that you might want to ask. Alison, you're a mute, but I don't know if you had anything you want to ask. There you are, yes. I'm trying to find the unmute. I guess if I have one very quick question, it's tying into your things. I wondered what your thoughts were on the attempts to repeal the Fixed Term Parliament Act. And whether you think it's better to have fixed term parliaments or whether you think that its repeal is yet another means of taking things away from parliament towards the government and also removing judicial control over those decisions. Yes. The Fixed Term Parliament provides, does it not, that the parliament can only, the election can only be held automatically. The government can only fall if there's a two thirds majority or there's a no confidence motion that is not resolved within 14 days. It's not resolved in 14 days, then election will be held. And this was done in 2011 at the behest of the Liberal Democrats and creates a kind of stability of five years of a fixed term, which takes away from the executive the power simply at an opportune moment to declare and hold an election. It's a bit like, I was thinking of how I could compare this to a sports match where the captain can suddenly say, that just as the wicked is turning in his favor or the atmosphere favors the fast bowlers or as evening is nigh and that kind of thing. So you've depicted it exactly, Alison. It's something at the moment that favors a certain stability a certain continuity for a period takes away the anxiety of constant election works when there's a large majority but if there's a smaller majority as we saw under Mrs May can create anxieties of its own you have to in the end get, I think it's only a parliament itself that will gains power from the fixed term but the opposition in particular because their role is crucial to that two thirds majority. So it is a matter that favors the executive rather than parliament. And I think that I have not myself felt that the fixed term parliament act was a retrograde step in any way. I think that it has its advantage. Right. So perhaps we'll just go with, sorry, Alison. If we just go with one last question from Andre Ivanov. Would you say that judicial review of the executive should be put on a statutory basis to give the courts greater democratic legitimacy. And he says that clearly the ultra virus doctrine is a big leaf and the major hostility towards judges is due to the conceptual obscurity regarding the basis of judicial review. Yeah, I think that I would like judicial review to be on a constitutional basis. As Rebecca will know when the South African constitution was being drafted. One of the question was should we constitutionalize judicial review. It's such a basic right. People should be able to challenge decisions that are made about them in the courts before an independent judiciary. Such a fundamental right that should it ever be to be taken away. And the answer there was yes, we'll constitutionalize it. So there is a right to administrative justice. It's called just administrative action in other countries that have taken that provision now, swept from Africa across the world is right to administrative justice. The right to lawful administration. To administration is lawful that is procedurally fair and that is reasonable. Plus occasionally putting in reasons for decisions must normally be given that there is so much fundamental part of the rule of law if they could be constitutional. Now in this country we don't have a constitution. So if we statutoryize them, it may be that the courts will then say there's a whole other discussion that these are that it is a constitutional statute. And it requires a certain amount of special regard on the part of the courts were challenged. Particularly if there's any ambiguity that tries to in some way undermine it. So, yeah, on the other hand, I think it's judicial reviews. I'd be very surprised. Or folks were to in any way suggest the abolition of judicial review. So there'll be a complete, complete outcry. And even the judicial power project might not agree with all that. Or maybe almost. And I think that because it's pretty well entrenched, deeply entrenched now in our common law, and it goes way back as we saw in privacy international case, you look at those old cases where the judges, you know, 16th, 15th, 17th century cases with the judges have absolutely no truck whatsoever with ouster clauses. No problems whatsoever in saying against the rule of law well before Dyson. And it's so entrenched in our common law that I think it's probably there to stay. But if it were in any way could be constitutionalized even in a country without a real constitution, that would be good. Right. Thank you so much. And I think we'll have to end it there despite the fact we have many more questions. And I think everybody would love to hear you speaking all night. We've certainly, I think, learned a lot. And there's certainly been a lot of really thought provoking ideas discussed. So thank you so much for your time. And I think Alison won't mind if I thank you on behalf of the Center for Public Law as well. And please, everyone who's attended, please bring your questions and your engagement with these kinds of issues to our further events in the speaker series and also the Center for Public Law's events as they'll continue this term. And so thank you everyone for coming and a great thank you to Sir Jeffrey Joel QC for joining us this evening. Thank you. It's been a huge privilege. Wonderful questions. Thanks so much. Brilliant. Thanks. Have a good evening. Thank you. Bye.