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Privatisation has been the economic policy of successive governments since the 1970s. All the major infrastructure, utilities and manufacturing industries which had been brought into public ownership in the immediate post-war period have been sold off, as single share offers, wholesale private transfers, or partial staged transfers. Privatisation has been developed through the remaining public services, with local authorities increasingly turning into commissioning hubs rather than direct employers, education transferring its assets and management to the private sector through the Academy programme and courts, prisons and more being owned and run by the private sector. 

That privatisation is government policy is not in question. The question is how far that has affected the NHS.  

Privatisation of the NHS began as far back as 1983 when the cleaning services started to be put out to tender. That has had fairly disastrous consequences with the spread of ‘superbugs’ being attributable to the cleaners no longer forming part of integrated core teams on wards.

Other privatisations, including IT services, facilities management, out-of-hours GP services and the 111 service, have had patchy results; some have been a waste of money, some have failed to show any benefit over public provision, some, like the cleaning services, have been cheaper but a lower standard. Interestingly these privatisations are not discussed or presented as ‘privatisation of the NHS’, or part-privatisation, although they clearly are.

The NHS is the sum of all the parts that make it function, not just its clinical services. This intellectual sleight of hand of naming private-sector takeover of asset ownership and management, ancillary and backroom services as normal business practice or ‘just outsourcing’ rather than service privatisation has allowed a significant part of the NHS to be privatised without being acknowledged as such.  

The House of Commons Library briefing on privatisation defines the need for a competition regulator as one of the essential features of the move from public to private provision. Regulators have been brought in over the last 20 years via various bodies up to the current position of the CQC and NHS Improvement, reflecting the need for market regulation. 

The Health & Social Care Act (2012)

The Health and Social Care Act (2012) continued the process of privatisation. It has become commonplace to describe the Act as a mistake. But given that privatisation is the dominant economic policy, the Act is not a mistake, it is merely a continuation of that policy.  

Privatisation is embedded in the Act in several ways. It removes the NHS in England to arm’s length from government. The relationship between the state and the service changes with the responsibility of provision lying outside the government department. The government’s remit alters significantly from being responsible for provision and planning to providing a Mandate and a funding stream to NHS England and authorising the NHS ‘kite-mark’ through NHS Identity.  

NHS Identity’s website gives advice and regulations about using the brand to the NHS family, which includes public, private and voluntary sector partners. 

The Act also created the Clinical Commissioning Groups (CCGs). Section 75 3(a) of the Act imposes requirements relating to competitive tendering for the provision of services. 

The interpretation of this provision is a source of contention with the government arguing that the clause gives CCGs choice about tendering out services and the CCGs feeling that they are open to legal challenge if they do not tender. The CCGs and Section 75 are the engine that powers the privatisation of clinical services. The constituent members of the CCGs – GPs – do not have the collective skills to carry out the complex procurement process of putting services out to tender. They use Commissioning Support Units such as Optum, the UK subsidiary of United Health of America, to perform this function. 

The CCGs are also not bound to supply the same range of services nationally. They have some core clinical responsibilities but can put restrictions on others according to their financial needs. This can lead to situations where hospitals request patients to check with their commissioner to ensure they will cover payment before they start treatment, otherwise they have self-pay and insurance options available. In all but name this makes the CCGs act as local insurance groups to their registered patients, rather than service providers with common service standards set at national level. 

Trusts and Foundation Trusts are also empowered by the Act to increase the amount of private patient income they can earn. The Act specifies that they must earn the majority of their income from NHS funding. But that is interpreted as meaning that up to 49% can be from other sources. This can include rent from retail spaces and car parks as well as private patients.  

The Five Year Forward View

Simon Stevens, CEO of NHS England, produced a Five Year Forward View (5YFV) for the NHS in England in October 2014. This is largely presented by the media, politicians of all stripes and think tanks, such as The King’s Fund, as a way of integrating services to end the fragmentation caused by the 2012 Act and to bring an end to the split between commissioners and provider organisations. In 2013, immediately after the implementation of the Act, The Better Care Fund was rolled out as a series of local programmes under different names; ‘Better Together’, ‘Fit for the Future’, etc… Its stated intention is to shift the focus from acute hospital settings into local authority based social and community care.

The 5YFV started with a series of Vanguard testbeds and will end with Integrated Care Systems and possibly Accountable (or Integrated) Care Organisations.  The stated intention of the 5YFV is to shift the focus from acute hospital settings into local authority based social and community care. In other words, even though they have different names, the two programmes have exactly the same aim.

This illustrates that the HSCA 2012 was not a mistake but is in fact a continuation of policy. That is why the findings of Michael Mansfield’s 2015 independent inquiry into Shaping a Healthier Future in NW London is still relevant. It highlights how this programme is moving services away from those areas most in need of them towards high-density, more profitable areas.

The reality of the 5YFV is that it is a re-shaping of the NHS to fit with a predicted permanent reduction in funding levels. It is based on a reduction of the total number of fully functioning blue-light A&Es from the 144 A&Es in England in 2013 reduced to somewhere between 40-70. These will be large major trauma centres. There will be no more than two for each of the 44 Sustainability and Transformation areas (STPs) which were announced in December 2015 as part of the implementation of the 5YFV. Some STPs will only have one. This is the case in Northumberland, an early adopter of the system. 

Other hospitals are having their A&Es downgraded and services transferred to the trauma centres along with their income. When campaigners are fighting across the country to save their local A&Es they are really fighting against the 5YFV. Acute and emergency care is being separated from elective (planned) care. Planned care is more attractive to the private sector as it is low risk and high income. It is one of the areas of clinical care included in the ‘7.9%’ of privatisation quoted in the Health and Social Care Select Committee’s oral evidence session. 

The 5YFV also envisages using the sale of property as a form of pump-priming of the changes. The Naylor Review (part of the 5YFV process) goes further in working on the transfer of services out of owned properties into rented accommodation, built and managed by the private sector. 

The 2012 Act also created NHS Property Services Ltd, the ‘PropCo’, which took ownership of all the properties previously in the stewardship of the Strategic Health Authorities and Primary Care Trusts. The PropCo is a private company, currently wholly owned by the Department of Health & Social Care. It also charges commercial rents. 

The 5YFV encourages the separation of midwives from the hospitals to form their own companies to provide midwifery in the community. It contains plans for the widespread use of vouchers for maternity and personal health budgets for the disabled and those with other long-term health needs. These vouchers and budgets can be spent in the private or public sector. 

Privatisation: an economic policy

Analysing the overall effect of privatisation in the NHS will take time. Whilst there is little evidence of an increase in health insurance schemes, there is evidence that more people are turning to self-pay options to avoid waiting times. For a cultural change to happen people have to accept the principle that there will be things outside the ‘NHS menu’ that they will have to pay for – that cultural change hasn’t happened yet.

Descriptions of how little impact the private sector has currently had on the NHS avoids the issue of how much unmet need is being created by the reconfigurations. It is in the unmet need that the principles of universal and comprehensive care are being lost.

The report from the Health and Social Care Select Committee on Integrated Care is absolutely explicit about the need to retain ‘choice’ of providers and to avoid the ‘danger of creating airless rooms in which you simply have one provider who is there for a huge amount of time’.

This is the economics of privatisation and it needs to be addressed at parliamentary and legislative level. The Health and Social Care Committee recommends new legislation. On the current trajectory that will mean the introduction of ACOs.

The battle to promote the principles of public service as public good still has to be fought and won if the privatisation agenda within the NHS is to be brought to a halt.

 

The NHS [Reinstatement] Bill will be presented under the 10 Minute Rule by Eleanor Smith MP on 11 July 2018.

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In exactly one month’s time there will be a 10 Minute Rule Bill presented in Parliament by Eleanor Smith MP to Reinstate the NHS as a publicly provided, accountable and owned national service. The following article lays out simply and clearly what the existing problems are and what the correct legislative response should be. We are very grateful to Professor Allyson Pollock and Dr Kailash Chand for allowing us to reprint this here. 

On the 4th July, the National Health Service will celebrate its 70th birthday and there will be much fanfare and celebration. The NHS has been described as one of the greatest social achievements of the 20th century with its promise to care for the British people from cradle to grave. But all is not well.

Intense financial pressure

The NHS was established as a publicly funded, publicly provided and publicly accountable service but the systems and mechanisms which ensure health care for all are now being progressively dismantled and NHS funding is being reduced and diverted to private operators and their shareholders.Despite a rising tax base – the population has increased by 2.5 million and is predicted to grow by 440,000 a year over the next ten years health care needs are not being met. This is because the government has taken a political decision to reduce NHS services so that those who can pay will pay and go privately.

The visible signs of reductions in funding and diversion of funds to private operators are the closures of hospitals, GP surgeries and community services and sales of NHS estate. NHS England has cancelled tens of ­thousands of hospital operations, much needed operations which in turn are creating the biggest backlog in the health service’s history. A&E services are in a near permanent state of crisis on a daily basis and on many days some hospitals report having no hospital beds available with bed occupancy levels over 100 per cent.

All the key indicators within the NHS worsened over the last few years, with waiting lists reaching 10-year highs. A shortage of doctors, nurses, beds and care packages for elderly patients means that black alerts, trolleys in corridors and dangerous safety levels for patients are at a peak. What was once confined to winter is now an all-year-round occurrence.

As financial and operational performances deteriorate any additional resources allocated to the NHS by the government are being used to bail out hospitals with large deficits and enormous annual PFI charges. Precious NHS resources are being squandered on management consultants, lawyers, accountancy firms, PFI contracts and commercial contracting. Commercial contracting creates waste and fragmentation of care and risks are passed from commissioner to provider to patient like a sinister game of pass the parcel.

Faced with large financial deficits NHS managers holed up in their offices and board rooms look at how they can use their new powers to generate private income – now that NHS foundation trust hospitals can generate up to half their income from private patients and other sources. At the same time Foundation Trusts are undertaking more privatisation and entering into joint ventures and creating companies to transfer staff.

Dismantling the NHS

The fear of the financial costs of ill health is rapidly returning. The principle of a universal healthcare system free at the point of use is broken. This government has ushered in a creeping reduction of universality, with the withdrawal of entitlements and demonisation of ill people, old people, immigrants, asylum seekers, refugees alongside the incremental rationing of care, for example Windrush migrants and introduction of health care migrant charges. For 70 years people were treated on the basis of need not screened for their eligibility.

The government’s new plans for health care, which are being rapidly introduced and without proper public debate or parliamentary scrutiny, turn on new models of care are drawn from the US – the most expensive and unfair system in the world.

These new models labelled and relabelled ACOs, STPs, ICS, ICPs, MCPs PACs have one endpoint – the Accountable Care Organisation. The government plans to drum up billions of pounds and award giant contracts for at least ten years to private for profit providers.

The government calls this integration. The reality is that commercial contracting will involve transferring statutory decision making for planning and resource allocation to non statutory bodies. In this way risks and costs of care are shifted to patients are shifted to patients.

The NHS is being fragmented, undermined and decimated. There are no countries that provide universal healthcare on this basis. The legal basis for shifting commissioning functions to non-statutory bodies is currently being challenged in the court and the hearing of the judicial review will be heard on 23rd and 24th May, funded by the public.

The Health and Social Care Act 2012 removed the duty on the Secretary of State to provide universal health care throughout England and ushered in market competition. It dismantles the NHS. Only parliament can restore what parliament has taken away and this needs legislation.

Reinstating the NHS in England

This is why it so important to support the NHS Bill which will be tabled as a private members Bill on 11th July by Eleanor Smith MP.  This Bill reinstates the NHS. It will reintegrate services within contiguous geographic area based statutory health bodies making them publicly accountable to local people and to parliament. It will reinstate the duty on the Sec of State to provide universal health care throughout England. It will restore the principles of fairness for all which has been the hallmark of the NHS. It will restore needs-based planning for geographic populations. It will abolish marketisation and commercial contracting. It will abolish the internal market and Foundation Trusts and centralises PFI debts making them the responsibility of the Treasury.

The intergenerational unfairness which has made individuals responsible for long-term care must be remedied and means testing and privatization of care ended. Mechanisms for public accountability must be renewed.

We should restore the founding principles of the NHS through national terms and conditions of service for doctors and all NHS staff. Above all, we must allow professional standards to thrive since these are the basis of public and patient trust.

In its 70th anniversary year, what the NHS requires is not reform but revolution – a quiet, collective revolution that brought the NHS into being in the first place.

Kailash Chand is honorary vice president of the British Medical Association (BMA) and has worked as a GP since 1983.

 
Allyson Pollock is an academic, public health doctor, and leading authority on PFI. 
This article was first published in Political Quarterly 1 May 2018.
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Geographic reform of the NHS is not new: region, district, area, and locality are all familiar terms in NHS history, and notions of “place” as an organising principle retain an intrinsic appeal for policy-makers.  Recently, the English NHS has now been reorganised along spatial lines with the creation of 44 geographically-defined STP (Sustainability and Transformation Plan) footprints, to ‘deliver the right care, in the right place, with optimal value’. This is in the spirit of the King’s Fund argument that “place-based systems of care offers the best opportunity for NHS organisations to tackle the growing challenges that they are faced with.”

Critics have argued that far from being a neutral, technocratic process, the creation of arbitrary geographies delivers “spatial closure,” shutting down argument and marginalising debate about the fundamental political choices which determine the nature of our public services. Recent research examining STPs goes further, suggesting their geographic focus enables the “highly resource-constrained management of health systems.”

It is argued here that, unlike previous reconfigurations, STPs deliver outcomes which systematically undermine the national in the national health service. In contrast to Beveridge-era concerns with equity, fairness, and collaboration, STPs privilege the superiority of “local choice” over national ambition which, in the context of austerity,  enhances and accentuates the geographic variation of care provision,  undermining the principle of universality.

The NHS should ensure the achievement of equitable access to health care regardless of region of residence. Policymakers have sought to minimise geographic variation, but it remains a persistent and ubiquitous problem, and the NHS Atlas of Variation maintains that much of this variation is “unwarranted.” However, rather than identifying NHS funding restrictions, geographic fragmentation of the NHS, or the disruptive role of the private sector as causative, it argues that “limited professional knowledge” and “disparate organisational performance” are the drivers.

The reality is that STPs areas are forced to make hard choices about the services they provide, and to whom, and they make these choices without regard to national consistency. Responding to fixed financial resources and increasing demand their approach has been six-fold, characterised by the King’s Fund: Deflection; Delay; Denial; Selection; Deterrence; and Dilution, each of which can be seen in action within STPs.

GP referral management schemes  delay, defer, and deflect patients away from secondary care; the explicit exclusion of certain groups (smokers, the obese) denies care; blaming patients for presenting inappropriately deters the future expression of need; the tightening of referral criteria (for hip replacements, IVF, or continuing healthcare funding) selects patients; and increasing variation in the funding of community nursing services dilutes quality.

Rather than making transparent the boundaries of care and seeking national agreement on acceptable variation, risk, or quality thresholds, STPs are developing and implementing their own local criteria and priorities, the effects of which compound geographic variation and institutionalise the postcode lottery of care: the decision whether care is “warranted” or “unwarranted” is one fully for local determination.

Further, this variation has been exacerbated by the marketisation of the NHS. Expedited by the “any qualified provider” test , the application of competition law, and the diffusion of accountability which has made effective public challenge more difficult, local markets in healthcare  have been exploited by private providers, specifically in community services  and  primary care.  As Birch and Siemiatycki note, private contractors negotiate deals on a case-by-case basis, and this splintering leads to uneven development: some places end up better served than others.

Evidence from Italy’s decentralisation of healthcare suggests the end result is a zero-sum game, where the gains for the stronger are counterbalanced by the reductions in performance of the weaker, which can lead to greater inequalities. In England, there is emerging evidence from the Care Quality Commission that spatial variation has intensified, variation which will only be intensified through the new regime of inter-spatial competition for funding, with funding held back until health systems develop acceptable plans.

The NHS in England can now be viewed analytically as no more than a set of contiguous places, in each of which problems that were forged nationally are required to be owned and solved. Variation raises important policy questions: within a marketized, fragmented NHS how will policies and governance tools ensure that the reduction of unwarranted variation is prioritised? When the mantra of local choice is paramount, how will solutions to critical, national problems such as the care of the elderly be found when parts of the system are owned by different actors, each with competing goals and values, and the assessment of local needs is separated from the provision of services.

Increasing “warranted” variation in care provision across England challenges the idea of a national health service providing universal coverage through a universal funding system (taxation). In a multi-speed, variegated, health service where national accountability is constrained and national funding limited, localised funding solutions to meet local needs may be sought. Do personal ‘year of care’ budgets, and Greater Manchester’s consideration of local funding for social care portend a plural healthcare funding regime?   There is a need for future research to investigate the impact of NHS fragmentation and local choice upon accountability, equity, and variation across the NHS, and for citizens concerned about the survival of the NHS to be alert to the wider impact of these upon the founding principles of the NHS.

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This blog has been written by Gavin Barker from Cornwall. Gavin addresses the issues of democratic accountability and the protections that need building into our system against undue corporate influence, to ensure the provision of our public services and to create a constitutional framework. We have included a link to We Own It‘s Public Users Bill as further material for debate on this subject.

In an earlier article, Corporate Culture, Public Services and Democracy, Jessica Ormerod documents the corrosive effect of a managerial culture of the public sector that sought to remodel public services on private sector ideals of  economic discipline. ‘Efficiency’; ‘value for money’; ‘innovation’ and ‘entrepreneurship’ became the prevaling values that guided policy making rather than human need. Citizens were re-defined as consumers and customer choice replaced democratic accountability. Education and health services were reconfigured in ways that pitched public sector providers against private companies under the disciplining hand of the market.

We now know, to our cost, just how damaging this experiment in the application of free market models has been. We have a failing education system, an NHS on its knees, rip-off energy companies, the housing crisis and rising homelessness. Beyond that, a retreating welfare state has been weaponised to attack the very people it purports to help.

What this article seeks to do is pick up on the particular point she makes on, “The cumulative direction of policy decisions since the late 1970’s…” which “has created a substantial shift in the governance and management of the state sector” over the last 40 years.

Governance and management of the public sector is inseparable from more fundamental issues to do with the rules of government which form a nation’s constitution. We are one of only three major democracies that does not have a written, codified constitution. What we have instead is an ‘unwritten’ or, more accurately, an uncodified constitution; a sprawling, opaque and antiquated collection of documents: unwritten conventions, royal prerogatives, reserve powers, over powerful executive and unelected Lords. Few voters understand the rules by which they are governed. Even constitutional experts wrestle with the lack of clarity of unwritten conventions, some of which deal with issues of war and peace! [I]  For example, who until recently had heard of Henry VIII clauses written into a proposed piece of legislation which empowers government ministers to circumvent parliamentary scrutiny?

What all this means is that the framework of governance that forms our constitution is dangerously out of kilter with basic democratic principles. Its very opacity affords too many loopholes for a self-serving political class to make up the rules of government as they go along. Their interests are closely aligned with the corporations who have benefitted so lucratively from the privatisation of public services. As such, the invasive assault right at the heart of the public sector is as much about the absence of an over-arching governing framework, as it is about a narrow free market ideology.

Five major fault lines

Before setting out how we might remedy this situation, we need to map out in more detail five major fault points that make constitutional reform so urgent. We need to expose the assumption that many people adhere to; that we already have a democracy. After all, we have regular elections, freedom of speech and assembly. We can form Facebook groups to campaign on almost anything, go on demos, write to our MP and more. But while it seems as though we live in a real democracy this is increasingly a superficial experience. Look harder, dig deeper and you will find multiple cracks and disconnections. We have the formal trappings of democracy but the substance has been hollowed out. The rules have been gamed. Free speech and the right to vote no longer translate into democratic change.

A broken electoral system

It is no longer tenable to claim that we have free and fair elections in this country. What we have is a broken and outdated First Past The Post System that once worked but now doesn’t. It worked reasonably well while we had relative social homogeneity; two broad social classes that dominated the first half of the  20th century. There was a strong white working class, union-based solidarity that broadly voted Labour and a professional middle and managerial class that voted Conservative. From the 1950’s with growing immigration, de-industrialisation and occupational diversity there was an emergence of identity politics based on feminism, race and gender. Together with a new Green politics this gave rise to a multiplicity of political voices that were not easily captured by monolithic party blocks. They wanted their own voice – and still do.

The result has been the emergence of plural party politics shoe-horned into an election system built for a two-horse race. The more political parties that stand at election time, the more the vote is split, leading to grossly distorted outcomes. For example, in Cornwall where I live, less than half the people voted Conservative but they took all six constituency seats.

The most telling fact is revealed in a joint report by Labour and Make Votes Matter: for 13 of the last 16 UK General Elections (now 14 out of the last 17 UK elections) most people voted for parties to the left of the Conservatives. Despite this we have had Conservative majority governments for most of that period. As the report points out:

“Under PR, it seems beyond doubt modern British history would have been very different. The Thatcher era of unmoderated right-wing government simply could not have happened.” (pg 24)

The report also draws on research suggesting a strong causal link between PR voting systems and low income inequality, a higher proportion of female politicians, stronger welfare states, and a more equitable distribution of public goods. But why so many positives? Researchers Birchfield and Crepaz explain these results as follows:

“The more widespread the access to political institutions, and the more representative the political system, the more citizens will take part in the political process to change it in their favour which will manifest itself, among other things, in lower income inequality. Such consensual political institutions make the government more responsive to the demands of a wider range of citizens”[ii]

The flip side to this is that corporate lobbyists find it much more difficult to push their agenda when power is dispersed across a multi-party government. There are too many people to talk to and convince, too many points at which their agenda is potentially subject to public exposure, or when agreement by one party precipitates withdrawal of support by another. They flourish best under majoritarian parliaments with one dominant party, one set of cabinet members and one prime minister.

Diminishing accountability of Parliament to the people

A dysfunctional election system diminishes its capacity to respond to and reflect diverse public opinion. Yet I suspect most people hold onto the hazy belief that there remains a workable democratic accountability to the people and that our elected representatives remain an effective forum to hold the government to account.

Look harder and you see something different. Firstly, we do not have a complete separation of powers between an Executive (government), Legislature (House of Commons) and Judiciary. It is certainly a constitutional principle we aspire to, but not one that plays out in practice. What we have is a fusion between Executive and Legislature. The government is drawn from the House of Commons and unelected Lords. While this might seem democratic and reasonable at one level, it seriously undermines the constitutional role of parliament to be an independent democratic forum that holds the government to account.

Secondly, party discipline and MPs’ career aspirations within and outside Parliament have instilled a compliant political culture and deference to the Executive. Party discipline and the Whip system has a dampening effect on independent thinking and the willingness of MPs to act according to their conscience. Moreover, an increasingly professional political class often sees a career as an MP as a launch pad for lucrative consultancy and private sector contracts outside Parliament – as instanced by George Osborne’s meteoric salary advancement through part-time posts in the city and the media. This is a problem for all parties, not just the Conservatives.

An over powerful executive

As previously referred to, the royal prerogative and other statutory powers afford government the means to circumvent parliamentary accountability.

They are relics from monarchy rule which invest exceptional and necessary powers to government ministers to act quickly in emergencies. These kinds of powers are a common feature in democracies worldwide, but are usually governed by written, codified constitutions which place limits on their use and provide mechanisms for scrutiny. Because the UK lacks a codified constitution, use of these powers goes largely unchecked, presenting real potential for abuse.

The scale of that potential is graphically illustrated in the recent proposals that form part of the Great Repeal Bill which will allow ministers to re-write large parts of EU law once these become part of UK law, without reference to Parliament. The main purpose of the bill is to put all EU law into UK law, so that on the day we leave the European Union there will be continuity. Included in the Bill are powers for ministers to amend and repeal primary legislation through Statutory Instruments – also known as Henry VIII powers.

It really doesn’t take much imagination to see the temptation for ministers to move beyond necessary technical changes and instead bring a wrecking ball to employment and consumer rights along with environmental protection.

Examples in the recent past where the government has introduced significant policy changes through such Statutory Instruments include: the abolition of university maintenance grants; allowing fracking in national parks; and major changes to voter registration [iii].

The erosion of the Rule of Law and the right to a fair trial

The Rule of Law is one of the core principles of our unwritten constitution; no-one is above the law and everyone has the right to a fair trial. In practice your right to a fair trial depends on how deep your pockets are.

This is why the recent High Court ruling on tribunal fees was such a dramatic reminder of what we have lost. It should never have been the case that people were denied access to justice on the basis of prohibitive fees, nor that it took so long to remedy this outrage. Government legislation introduced fees into employment tribunals in 2013 and this resulted in a substantial fall in the number of claims being sought – and it disproportionately affected women.

It is no accident that Lord Reed, one of the presiding judges who delivered the judgement against the government, deliberately referred to the Magna Carta, expressing the Rule of Law: “We will sell to no man, we will not deny or defer to any man either justice or right.”

Earlier examples of the erosion of the rule of law include the use of detention without trial in Ireland at various points since the nineteenth century and in Great Britain in both world wars.

The unrestrained power of Parliament

The epicentre on which these fault lines converge is the biggest one of all; the doctrine of Parliamentary Supremacy.  Parliamentary sovereignty is commonly regarded as the cornerstone of our unwritten Constitution. For many a source of pride, for Parliament had to win this power through bloody civil war and a series of constitutional crises that pitched absolute monarchical power against individual rights and freedoms. Yet while those rights and freedoms were freely given to men of property, they were only grudgingly extended to the whole population through further upheaval, mass civil disobedience and widespread protest.

The point is that the legislative power of Parliament is legally unlimited and all of its legislation must be applied by the courts. It can completely re-shape electoral rules or suspend elections indefinitely through routine legislation. There are no special additional legislative procedures accorded to laws of a fundamental constitutional nature as found in written constitutions.

Such unlimited power is dangerous. A weak House of Lords, a neutral Head of State and the absence of a constitutional court allows the executive to dominate the whole legal and political system through its party majority in the House of Commons. In effect, rather than being accountable to the people, Parliament is subsumed to the executive in what has been termed ‘elective dictatorship’ [iv].  

What can be done?

All the faults highlighted above, underline the urgency for a written constitution that sets out in plain English the rules by which we agree to be governed. This is not simply about updating the framework of governance by, for example, doing away with an unelected House of Lords and replacing it with an elected upper chamber. We must set clear constraints on the power of Parliament. Parliamentary sovereignty must be replaced by Popular Sovereignty, in the form of a written constitution, with elections at both national and local level based on proportional representation. Seats must match votes.

The obvious way forward is to convene citizens’ conventions on constitutional reform. Yet this runs up against two hurdles. Firstly, in themselves citizens’ conventions for constitutional reform hardly pose a challenge to vested interests. These are by nature, thoughtful reflective forums for blue sky thinking, they lack a hard campaigning edge. One might even hold a citizens’ convention in Parliament itself and get no more than a polite pat on the back for imaginative thinking. Parliament need not respond or take any notice of its recommendations.

The second and more serious hurdle is that to most people, the very words ‘constitutional convention’ sound remote, clunky and irrelevant in the face of more pressing challenges: an NHS on its knees, the housing crisis, and a failing education system.

But there is an emphatic connection between these crises and a failure of governance. The argument that needs to be made, not once but again and again, is that these crises cannot be resolved without reference to principles of economic, social and environmental justice; and these in turn should not be separate from the principles that guide the work of Parliament. In other words, a written constitution must also include a clear legislative framework that gives Parliament a moral compass and direction.

If the argument is made in that way, and if these governing principles are set out in a short simple charter – let’s call it a People’s Charter – it will become the hook by which a broader public is drawn into a sustained conversation about the relevance and urgency of constitutional reform. A charter of governing principles would also be the means by which to knit together the multiplicity of community and campaign groups across the country into a new collective ‘WE’. In doing so, constitutional reform gains the vital campaign momentum that a citizens’ convention lacks. This is not an either/or but a complementary strategy which is much more likely to succeed.

Brexit forms a constitutional moment

It is Brexit which serves as a constitutional ‘moment’ to commence this project. It introduced the notion of a popular sovereignty as opposed to a discredited parliamentary sovereignty. The Leave vote was not just a rejection of a remote and unaccountable Brussels technocracy, but the political status quo at Westminster. It exposed a nascent English nationalism combined with simmering regional resentments at the economic and political marginalisation of those living outside the affluent south east.

As constitutional expert Anthony Barnett has pointed out, Brexit delivered a body blow to Parliamentary sovereignty, the cornerstone of our unwritten constitution. The ‘will of the people’ overturned the will of Parliament, the majority of whose members in both the Commons and Lords voted to remain. The British public, however misled and lied to by a cynical right-wing media, made a decision mandated by referendum to leave the EU. Only a second referendum can reverse that decision. This is not about who is ‘right’, but whose will must be respected.

Whether or not that second referendum happens, progressives from across the centre left must grab the opportunity. The initiative may have to come outside traditional party structures for these are more about winning elections than changing the rules by which power is won and administered. It will more likely come from an alliance of civil society organisations that later seek to embed their agenda in party manifestoes.

A constitutional moment may be two years or a decade away but the point is to begin this process now: to plan, strategise and form alliances with the single over-riding goal of winning back the state from the grip of corporate power and inaugurating a democratic revolution.

[i] One of these is the debate over the existence and scope of any constitutional rule that parliamentary approval for military action is necessary before the government enters into armed conflict abroad. This is ongoing see Briefing Paper 12- May 2015 Parliamentary approval for military action

[ii] See pg 26 of report The Many Not The Few by Make Votes Matter

[iii] See the report ‘A Democratic Brexit’ by Unlock Democracy

[iv] This was recognised as far back as 1976  by Lord Hailsham who remarked:
The Sovereignty of Parliament has increasingly become, in practice, the sovereignty of the Commons, and the sovereignty of the Commons has increasingly become the sovereignty of the government, which, in addition to its influence in Parliament, controls the party whips, the party machine and the civil service.

 This means that what has always been an elective dictatorship in theory, but one in which the component parts operated in practice to control one another, has become a machine in which one of those parts has come to exercise a predominant influence over the rest (see Mapping the Path   to Codifying – or not Codifying – the UK’s Constitution).