In this article, first published in Counsel magazine, I consider how constitutional matters influenced the 2017 general election — and what the future constitutional implications of the election generally, and of a hung Parliament in particular, might be.
That the general election was — ostensibly if spuriously — called in order to facilitate “strong and stable” government is well known. So too is the fact that that plan backfired in spectacular fashion. There are rich seams to be tapped here both by contemporary political commentators and, in due course, historians of ill-judged election campaigns. But what might the lessons and implications of the 2017 general election be from a constitutional perspective? In particular, are recent events evidence of — or likely to precipitate — not just political, but constitutional, instability?
It would, of course, be as difficult as it would be naïve to seek to draw any clean distinction between constitutional and political questions — a point that applies with particular force to the United Kingdom, whose constitution can still fairly be characterised as an ultimately political one. And it is certainly the case that the constitution — to a very unusual degree — formed part of the backdrop to, and was an influence upon, this election. For instance, questions about the territorial constitution played a significant part, in particular in Northern Ireland, where the UK general election played out against the background of the suspension of devolved government, and Scotland, where SNP agitation in favour of a second independence referendum may well have contributed to its loss of 21 seats.
Meanwhile, the prospect of Brexit loomed large — if only, at times, in an elephant-in-the-room way, given the reluctance of the Prime Minister, in particular, to be drawn upon detail. Brexit, of course, is a highly multifaceted question — indeed, it is a paradigm of the genre — but it is undeniably in part a constitutional question. Just as joining the EU had major constitutional implications, including a perceived loss of “sovereignty”, so will leaving — both as a result of disengagement from the EU’s own legal-constitutional machinery, and thanks to the domestic constitutional reconfiguration, via the “Great Repeal Bill” in the first instance, that will be necessitated.
There is a further — closely related yet distinct — point. It is that the election took place against the background of the 2016 referendum on EU membership. That raises fundamental and as-yet-unresolved questions about the relationship between popular opinion as expressed (on the one hand) through referendums and (on the other hand) through general elections. The referendum result, for instance, clearly influenced and constrained the terms upon which the election was fought, operating as a trump card that, for the most part, laid down the parameters within which the parties’ manifestos were drafted. But there may come a point — perhaps in the relatively near future, if a further election is needed — at which it is necessary to confront the extent to which “the will of the people” as expressed through an exercise in direct democracy should continue to constrain the familiar representative political process.
In these ways, then, the election was itself shaped by a set of factors illustrative of a period of unusual constitutional instability that engaged questions about the integrity of the UK as a union State, its constitutional relationship and disentanglement from the EU, and the nature of the UK’s democratic system itself. Reflecting upon how we have arrived here is in itself useful. But what of the immediate future? Will the constitution be rendered more unstable by the unusual political circumstances in which the UK finds itself? And (to examine the other side of the same coin) is the constitution capable of providing a suitably stable platform for a government that already finds itself in the choppiest of political waters?
If the effect of constitutional assertiveness by Parliament is something other than strong and stable government, then so be it. Constitutional government and political tumult may, in some circumstances, be necessary, if uneasy, bedfellows.
Three sets of constitutional relationships are likely to be particularly pertinent during the present Parliament (however long that lasts). First, there is the relationship between the UK government and its devolved counterparts. The outcome of the general election in Scotland suggests that the prospect of a second independence referendum has receded, but it has plainly not gone away, and the growing tendency of the Scottish unionist parties — including the Conservatives under Ruth Davidson — to carve out distinct positions is likely to be particularly relevant in relation to the Brexit negotiations. More broadly, this Parliament will be preoccupied to an unusual degree with legislation — concerning Brexit — that is pan-UK in nature. A minority Conservative government will therefore have to be particularly sensitive to the views of politicians from the devolved nations. And then, of course, there is the Conservatives’ reliance upon the Democratic Unionist Party, which may well complicate the constitutional politics of Northern Ireland — where devolved government remains suspended.
Second, the existence of a minority government raises questions about the constitutional relationship between the House of Commons and the House of Lords. The Salisbury convention usually requires the Lords to stay its hand when it comes to Bills implementing government manifesto commitments. But it is hard to see why that convention should apply when the government in question lacks a Commons majority. Constitutional conventions are only as good as the constitutional logic that underpins them — and the logic of the Salisbury convention is that manifesto Bills usually enjoy a special democratic legitimacy born of the government’s majority. By the same logic, the manifesto commitments of a minority government enjoy no special democratic status, thereby rendering the Salisbury convention inapplicable. That does not, of course, mean that it would be constitutionally reasonable or politically sensible for the House of Lords to throw its weight around casually. But it does at least recalibrate the constitutional and political calculus by reference to which both the legitimacy and prudence of a more interventionist stance by the Lords falls to be determined.
Third, the relationship between the legislative and executive branches is inevitably thrown into unusually sharp relief by a hung Parliament. Most obviously, this will make the government especially sensitive — and vulnerable — to legislators’ views. However, that there is a minority government in this Parliament is particularly noteworthy given that the former will be asking the latter to enact the “Great Repeal Bill”, which will repeal the European Communities Act 1972 whilst paving the way for the retention or domestication of much current EU law. The House of Lords Constitution Committee recently observed that that Bill is likely to effect a “massive transfer of legislative competence” from Parliament to government, thereby raising acutely important questions about both the constitutional appropriateness of such a reallocation of authority and the adequacy of parliamentary oversight structures contained in the Bill. It may well be that the unexpected parliamentary arithmetic bequeathed by the general election will permit Parliament itself to exert a more muscular role in this area, including by insisting that the Bill contains suitable constitutional safeguards. The “Great Repeal Bill”, in turn, might be less likely to serve as a Trojan mechanism for executive-instigated policy-making with little reference to Parliament.
Constitutional volatility may well have political implications. But it does not follow that political storms need, or should, render a constitutional system unstable. Nor does it follow that political turmoil is a signifier of constitutional shortcomings. Indeed, one of the central purposes of a constitution is to enable the political process to be conducted — warts and all — in a manner that is constitutionally orderly, even if it is, as it sometimes inevitably is, politically chaotic. The system of constitutional checks and balances that are presently operating in the USA, to the evident chagrin of President Trump, is a case in point. Indeed, if contemporary events in the USA have a lesson to teach in respect of the UK’s current predicament, it is that a constitution can quite properly operate not so as to smooth the government’s way, but to discomfit politicians or institutions by insisting upon adequate scrutiny and by safeguarding relevant constitutional standards.
One of the hallmarks of the UK constitution is the degree of control that can often be exerted by the UK government, given that — in normal circumstances — it pulls the levers in a sovereign Parliament. But we find ourselves today in far from normal circumstances. Indeed, it might be argued that, in some respects, a new constitutional normal is beginning to emerge. Hegemonic single-party governments with large majorities have been rare of late, while the counterbalancing effect of devolved governance is an increasingly embedded part of our constitutional architecture. The conditions are thus ripe for relevant constitutional institutions to exert appropriate control and influence, most obviously in relation to Brexit — and in particular, at least in the first instance, in relation to the “Great Repeal Bill”. If the effect of such constitutional assertiveness is something other than strong and stable government, then so be it. Constitutional government and political tumult may, in some circumstances, be necessary, if uneasy, bedfellows.