Richard Gordon QC has fired a shot across the bows of the political parties timid attempts at democratic renewal with his new book Repairing British Politics. While all politicians now call for “power to the people” none follow through the logic of what this means for a new constitutional settlement.   Gordon, one of the UK's leading silks in administrative and public law, pulls no punches in arguing that giving power to the people cannot coexist with the principle of parliamentary sovereignty.

As he succinctly puts it “no one ever voted for parliamentary sovereignty”, not least because the doctrine is a “power sustaining device” with no democratic provenance or justification.  The fact “that we are allowed to vote at the ballot box for a political party with specific policies is completely different from endorsement by the people of the way in which power may be exercised by any government that is voted in.”

Gordon presents a draft for a written constitution which would scrap the doctrine of parliamentary sovereignty with “constitutional sovereignty”. Under parliamentary sovereignty, parliament is the supreme legislative authority and can make or unmake any law it chooses. Under constitutional sovereignty,  a written constitution with entrenched provisions is the supreme law of the land, derived from the people and its fundamental features cannot be altered save by wide popular consent.  His draft  includes the standard measures of liberal constitutionalism that have bypassed the UK, including: a Bill of Rights, fixed term parliaments and a supreme court empowered to strike down law in violation of the constitution. Yet the most radical proposal concerns creating a “new Citizens Branch of the constitution”. This would be selected annually at random from the electoral register and be responsible for the election of a Citizens Council to initiate legislation, public inquiries and to make applications direct to the Supreme Court on questions of constitutional interpretation.

Gordon’s proposal aims not only to explicitly to recognize the “people” as the original source of authority in a written constitution but to find an institutional manifestation for them in terms of a clear and recurrent role in monitoring and restraining the exercise of government power.  This highlights the vital but under looked role of citizens in permanently overseeing the delegated exercise of power in addition to the their role in periodically legitimating it at the ballot box. 

A  “third chamber” composed of randomly selected citizens would offer something that none of the parties to date are even contemplating: an institution that would help make citizens the custodians of their constitution rather than the occasional authorisers of a government with unlimited power to make and unmake the constitution as they see fit.

The idea of a second or third chamber composed of randomly selected citizens has been floated by variety of different commentators and academics – not least by Anthony Barnett and Peter Carty in a Demos pamphlet over a decade ago. Yet, as the presence of Lords Falconer, Steyn and Carlisle at the launch of Gordon’s book attests, the proposal has never been made by some one so close to the legal and political establishment”.

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