Recently, I have been reflecting on the question: ‘Does the UK constitution still work?’ Of course, the question is value-laden. For one thing, it implicitly assumes that, whether or not […]
Recently, I have been reflecting on the question: ‘Does the UK constitution still work?’ Of course, the question is value-laden. For one thing, it implicitly assumes that, whether or not it works now, the UK constitution at least once worked adequately — an assumption that is not universally shared. And buried within the question is a deeper one about what it means for a constitution to ‘work’, which raises yet further issues about what it is that constitutions ought ideally to do: questions on which different views can reasonably be, and are, held. However, important though those follow-on questions — to which I hope to return on another occasion — are, the central question — does the constitution still work? — engages a fundamental, but ultimately simple, point on which I focus here.
That point is that to the extent that the UK constitution has worked satisfactorily, it has done so largely because of unwritten, and sometimes unarticulated, understandings about how the various actors who tread the boards of the British constitutional stage ought to behave — and, for the most part, have behaved. The signal importance of such understandings in the UK context is attributable two interwoven aspects of the British constitutional order. First comes the doctrine of parliamentary sovereignty, which, at least in orthodoxy, renders every aspect of the system vulnerable to change by a Government with effective command of a majority in the House of Commons. Second is the necessary reliance within such a system upon political forms of control — including, critically, self-control — that, by definition, do not amount to hard legal constraints. Within such a system, notions of mutual respect, institutional comity and self-restraint necessarily occupy the centre-stage, yielding, when they are appropriately exhibited, a form of constitutional civility that enables an admittedly curious set of arrangements to work with at least some degree of adequacy. Today, however, constitutional civility is in notably short supply — and the adequacy of the constitution’s workings is correspondingly in question.
Before I attempt to substantiate that claim, it is important to preface it by acknowledging that constitutional civility has never been a constant. It has always been the case that the pendulum has swung back and forth, periods of relative calm decorum being succeeded by times of greater tension. In general, however, a degree of equilibrium has tended to prevail over the longer term. The question that now arises is whether we are living through something more exceptional than movement of that pendulum — something that may, in time, be recognised as an inflection point marking a shift more significant than the ebb and flow that has long formed part of the rhythm of political and constitutional life in the UK. Lacking a crystal ball, I do not attempt to predict what the answer to that question will ultimately turn out to be. However, it is at least arguable that a concatenation of present circumstances has the potential to amount to something significant in this regard.
What, then, are the circumstances that may provide evidence of a breakdown in constitutional civility that might, in years to come, be viewed as a turning point? The number of such matters is considerable, and opinions might well differ on what qualifies for inclusion in this category, but two broad trends, each encompassing several distinct but sometimes related developments, may be discerned. The trends respectively concern the roles played by law and by extra-legal norms as forms of constraint upon the political branches — and, in particular, the capacity such phenomena to corral political and governmental conduct within established constitutional parameters. It is helpful to consider the legal and the extra-legal issues in turn, although, as we will see, it is imperative that the distinction between those matters does not blind us to a critical relationship that connects them.
One does not need to look far for evidence of governmental dissatisfaction with the role presently played by law — and, by extension, by courts. Many examples could be supplied, but a few highlights (for want of a better word) will suffice. Take, for instance, the Government’s willingness to repudiate the rule of law by promoting legislation, in the form of the Internal Market Bill, that would supply Ministers with powers to place the UK in breach of its binding obligations under international law. Not long before this legislation was introduced into Parliament, the Government launched the Independent Review of Administrative Law, which may pave the way for radical changes to judicial review that would severely curb the courts’ capacity to hold the Executive to account and to uphold the rule of law. More recently, a further review — this time of the Human Rights Act 1998 — was announced. This, according to the Lord Chancellor, is intended to culminate in an ‘update’ to the Act so as to redress ‘the balance between the rights of individuals and effective government’. Meanwhile, and more generally, members of the Government have been vocal in their dissatisfaction with decisions of the Supreme Court, particularly in relation to Brexit, culminating now in the Government’s reported consideration of plans to reform, rename and reduce the size of the Supreme Court.
Of course, none of these initiatives would, if taken further, be unlawful as a matter of conventional legal analysis. On such an analysis, parliamentary sovereignty makes it possible for legislation to be enacted rendering breaches of international law domestically lawful, reforming or abolishing other branches of government, including the Supreme Court, removing or reducing the courts’ capacity to uphold fundamental rights, or narrowing, ousting or otherwise limiting the courts’ powers of judicial review. The critical point, however, is that there is traditionally a world of difference between that which a Government that commands a majority in a sovereign Parliament can legally accomplish and that which such a Government will seek to accomplish. Importantly, for present purposes, that gap between what can be and what is done is normally accounted for, at least in part, by the self-restraint exhibited by those controlling the levers of power afforded by a parliamentary majority, in recognition of the mutual respect and institutional comity that considerations of constitutional civility demand.
Thus political self-restraint plays an unusually important role in the UK system because the sovereignty of Parliament makes it legally possible for constitutional vandalism lawfully to be accomplished. This is so because even legal limits under which the Government finds itself are ultimately vulnerable to alteration or removal through the enactment of primary legislation, thanks to the absence of entrenched legal-constitutional constraints that are beyond straightforward legislative amendment. It is this aspect of the UK’s constitutional architecture that accounts for the spectacle of a Government that has been on the receiving end of adverse Supreme Court decisions reportedly considering significant changes to the Court. Whether or not those reports are accurate, and whether this ever amounts to anything, the very fact that this is an idea that can be mooted — and which could, if the political will could be mustered, be taken forward by doing nothing more than enacting regular legislation — is both striking and significant. In particular, it underlines the ultimate legalfragility of the mechanisms that exist, among other things, for the purpose of delimiting the authority of Government, upholding the rule of law and holding the Executive to account. This, in turn, highlights the axiomatic need for governmental self-restraint in the face of inevitable temptations to undermine or dismantle the essential but inconvenient legal machinery that serves, in part, to place (wholly legitimate) obstacles in the Executive’s way.
If that legal machinery is ultimately dependent upon political self-restraint born of constitutional civility, such restraint is even more important when it comes to the non-legal norms that form key parts of the constitutional system. Legal controls can be removed by legislative effort; purely political controls, in contrast, can be removed or simply ignored without the need for such effort. Here, again, there is no shortage of recent examples of constitutional civility breaking down. Although a legal aspect of the constitution in the sense that it is legislatively provided for, devolution depends to some extent upon respect for the political norms that have grown up around it. It is telling, therefore, that the UK Government and Parliament have shown themselves willing in the recent past to disregard the Sewel convention, which upholds the principle of devolved autonomy by requiring devolved consent to UK legislation impinges upon within or adjusts devolved competence. Equally telling is the recently exhibited willingness of the Prime Minister to overlook his own independent adviser’s conclusion that the Home Secretary breached the Ministerial Code by bullying officials. As with disregard of the Sewel convention, this implies no unlawful conduct on the part of the Prime Minister, given that he is under no legal obligation to uphold the Ministerial Code. But his willingness to ride a coach and horses through established political principle in this regard is further evidence of a preparedness to shrug off a form of political restraint that in the past would have been taken as given. As Mike Gordon puts it, the constitutional convention of ministerial responsibility is turned on its head to become a doctrine of ministerial irresponsibility.
Governmental willingness to disregard established constitutional mores is further illustrated by the ultimately unsuccessful attempt in 2019 to prorogue Parliament for five weeks at a time when Parliament was seeking to legislate to avoid a no-deal Brexit. This amounted to an attempt to leverage legal powers of prorogation so as to avoid political scrutiny and prevent Parliament from discharging its legislative function, and is thus a gross example of constitutional incivility. As is well known, the Government’s attempt to prorogue Parliament yielded the explosive judgment of the Supreme Court in the Miller II case, holding the prorogation to be unlawful and legally invalid — a judgment that exacerbated the already fraught relationship between the executive and judicial branches, and that plainly prefigures some of the current initiatives that may ultimately result in legislative attempts to curtail the courts’ constitutional functions. Although, for reasons that I have explained elsewhere, I consider the criticism unwarranted, it is worth noting in the present context that that judgment has drawn charges of judicial overreach, and of a lack of judicial respect for the powers of the executive branch. Those who advance that view would contend, against the background of the argument advanced above, that constitutional civility is a two-way street, and that courts need to respect the powers of other branches just as the Government and Parliament ought to respect the courts’ constitutional role. But even if, as I do, one rejects the view that the Supreme Court overreached in Miller II, the episode is a sobering illustration of how niceties of the constitutional fabric may begin to unravel when civility and restraint are abandoned.
Where, then, does this leave us? Is the UK constitution at an inflection point, with essential aspects of constitutional civility breaking down and the stability of the system, as a result, jeopardised? It is, I think, ultimately impossible to answer that question until it can be evaluated with the benefit of hindsight, and my purpose here has not been to attempt to do so. Rather, my aim has been to show that current circumstances make it necessary to be acutely aware of this issue, and to remind ourselves that the eccentricities of the UK constitution make it particularly dependent upon what I have called constitutional civility — and, as a result, particularly vulnerable to its erosion. As I noted towards the beginning of this piece, constitutional tension between the political and judicial branches of government is a far from novel phenomenon. However, what is striking when a longer view is taken is that such tensions can generally be seen to have played out against the background of basic parameters that the protagonists generally took as givens. It is at least arguable, though, that those basic parameters arenow under question, and under pressure, to an extent that is unusual. Indeed, such a conclusion is hard to avoid when contemplating a Government that is, or is apparently considering, legislation that would significantly limit the courts’ powers of judicial review, weaken judicial protection of human rights, authorise Ministers to breach international law and undermine the Supreme Court itself, while, beyond the legislative arena, it is destabilising the territorial constitution, shrugging off conventional norms regulating ministerial conduct and exhibiting a mindset — epitomised by the attempted five-week prorogation — that views Parliament with contempt.
Against this background, while it would be histrionic to suggest that some sort of constitutional point of no return has already been reached, it is hard to deny that constitutional civility — which, for reasons explored above, is so central to the effective functioning of the UK constitution — is at present in lamentably short supply. The consequences, should this approach persist, are hard to predict, but it is likely that they will be significant, as the profound pressure under which the territorial constitution now finds itself plainly attests. A similar observation applies to the increasingly confrontational approach that the Government is adopting towards legal constraints upon it and judicial enforcement of those constraints. A Government with a large majority in the House of Commons might well think — to borrow a phrase — that it holds all the cards. But that presupposes that the courts would be prepared to accept any and all of the limitations and reforms that may be in the pipeline. If they were not, and if, as a result, the courts’ fidelity to primary legislation was found wanting, a constitutional crisis would doubtless ensue.
I do not pretend to know what the ultimate outcome would be in such circumstances. But my argument here does not turn upon any such exercise in futurology. Rather, my point is that the UK constitution is premised upon a notion of civility that normally causes those with their hands on the levers of power to step back from doing many of the things that, as a matter of legal and constitutional theory, they are capable of doing. It is the supposition that such civility will prove, in the long-term, to ensure seemly constitutional behaviour on all sides that explains why the UK lacks a constitutional roadmap that tells us what would happen were the worst to occur. The worst — so the traditional view goes — will not occur because constitutional actors’ willingness to exhibit civility will inevitably pull them back from the brink. That traditional view of the UK constitution is undoubtedly being tested at present. Time will tell whether we are living through a period in which it is being tested to destruction.