The Straw that Broke the Camel’s Back? | Samuel Banks
Politics in Britain has been bizarre for a while. But recently things have got significantly more bizarre and intense, with a swathe of people suddenly interested in the finer details of our constitution. I started writing this overfour weeks ago, then focused on the prorogation, and just ran out of time. But the recent Supreme Court judgement provides an opportunity to revisit it, and to focus instead on the health of our Constitution: how much strain can it bear? I apologise in advance to any constitutional lawyers.
I was reflecting on the simpler times of 2015, when Her Majesty’s Government enjoyed a clear working majority. Shortly after the 2015 election, a fairly new backbench MP proposed the reappointment of John Bercow as Speaker of the House of Commons, concluding:
“The key virtue of the right hon. Gentleman is that he is impartial in this House, but he is a partisan for the House of Commons. In here, we are all equal and judged by him equally and fairly, but outside he defends our rights, our traditions and our liberties, and that is how it should be.”
The recent interactions between the Speaker and Jacob Rees-Mogg (now Leader of the House and Lord President of the Council) have been rather different. They had a serious difference of opinion on the (attempted) prorogation of 28 August, which Bercow described as a “constitutional outrage” and Rees-Mogg as a “perfectly proper constitutional procedure”. And on 3 September, Mr Rees-Mogg went as far as is courteously possible to criticise Mr Bercow’s handling of the anti-no-deal bill. Now that Parliament has (unexpectedly) returned, many are suggesting that the mood has changed, with real anger expressed by many MPs in the House of Commons. The tensions of the EU Referendum are breaking into the heart of our political processes and that matters.
A constitutional crisis?
In June of this year, the Economist made a stark prediction.
“Brexit is already a political crisis. Sooner or later, it will become a constitutional one, too”
The word crisis is overused in modern parlance, but it seems apt in the situation we now find ourselves. As the Economist suggested in June, we need to look back to see how we got here.
The British Constitution
It is sometimes said that the UK does not have a constitution or at least not a “written constitution”, which has sometimes caused amusing conversations in Parliament. But, as Lady Hale said in the recent Supreme Court judgement,
“Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development.”
The Constitution has generally evolved slowly, through the actions of Parliament, the courts, and government ministers. However, in my lifetime, the Constitution has been changed more drastically, particularly under Blair and Cameron, often without proper consideration of the consequences: we had devolution to Scotland, Wales and Northern Ireland in the late 1990s; in 2005, the Constitutional Reform Act reshaped the judiciary and led to the creation of the Supreme Court; the Fixed-term Parliaments Act 2011 transferred power to call elections from the Prime Minister to Parliament, massively exacerbating our current problems (see below); and the referendums on Scottish independence in 2014 and EU membership in 2016 were completely unprecedented and created new challenges for our Constitution.
“Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.”
This principle sits at the heart of the Constitution. It means that, no matter how controversial, Acts of Parliament are always constitutional (at least in a legal sense). This is one of the reasons so much has been changed in recent years. Parliamentary Sovereignty also defines how different branches of our government interact. The British people elect MPs to the House of Commons to represent their views and opinions, through general elections. This ensures that the “supreme legal authority” has democratic authority and accountability. The Government (or Executive) operates within the framework set by Parliament and is accountable only to Parliament and the law (through the courts). The courts interpret the law that Parliament has made but cannot bind Parliament, and Parliament can nullify decisions of the courts by changing the law. Our system has Parliament (and in particular the House of Commons, the only national representatives of the people) at its heart.
It is important not to romanticise Parliament. It is a messy institution with many imperfections, full of imperfect people. The Executive also has significant powers and still has the power to prevent certain laws from being debated – most recently used by Blair in relation to the Military Action Against Iraq (Parliamentary Approval) Bill in 1999. But the recent Supreme Court judgement confirms the sweeping powers of Parliament, by giving formal recognition to the principles that Parliament must be able to exercise its legislative powers and that Parliament must be able to hold the Executive to account.
What is unconstitutional?
Without a codified constitution, it is difficult to say what is and isn’t constitutional. By one definition, anything that breaches past constitutional precedents is unconstitutional. But that is unhelpfully broad, and would make all sorts of things unconstitutional.
This is not a watertight definition, but I would say that an action is unconstitutional if:
- it purports to use a constitutional power unlawfully, or
- it goes against an important constitutional principle without good cause.
By that definition, the recent (attempted) prorogation of Parliament was certainly unconstitutional. So too is the fact that the Government does not command a majority in the House of Commons for its flagship policy on Brexit. This has been noteworthy in recent weeks, with the refusal of MPs to call a general election. But the situation has existed since at least December 2018, when the May Government pulled the first “meaningful vote” on the Withdrawal Agreement. One of our most important principles is that the Government commands a majority in the House of Commons, especially on its most important policies.
“A government holds office by virtue of its ability to command the confidence of the House of Commons, chosen by the electorate in a general election” – Cabinet Manual
Before the Fixed-term Parliaments Act 2011 (FTPA), a government could simply call any motion a confidence motion. If the Government were defeated on such a motion, it could call any early election using prerogative powers, and this has happened on a number of occasions. But because of FTPA, Johnson’s Government has been defeated on seven of its first eight votes, and still cannot call a general election. That Parliament went on to legislate against the Government’s flagship policy tests our Constitution even further.
Conclusions and next steps
When I first started thinking in August, I wondered if the attempted prorogation of Parliament would be the final straw that broke our Constitution. It was not (although it may have been the straw that broke Johnson’s majority in the House of Commons). But, as I have outlined, the straws have been mounting up for some time and look set to continue to do so, as more precedents get torn up. Even with the clarity that Parliament will almost always win, our Constitution is not invulnerable. There are two things weighing on my mind at the moment.
The first is the need for a general election. A friend of mine told me many months ago that we needed to have elections until this situation was resolved. I disagreed at the time, reluctant (like Brenda from Bristol) to have yet another election (let alone many more). But I now have to admit that he was right – we should have had an election then and we should have an election now. We should trust in our long-standing system of Parliamentary democracy to deliver an outcome.
But the key reason we can’t yet have an election is that MPs don’t trust our Prime Minister to comply with the law. That leads me to my second concern: division. Democracies rely on the fact that people disagree with each other (otherwise there would be very little scrutiny) but are nevertheless willing to allow a particular group of people to rule (otherwise the government would never get anything done). Aggressive hostility between our politicians (especially on a large matter like Brexit) is a threat to this, and could lead to dysfunctional government.
Disagree with tea
We can’t expect our Parliamentarians to talk to each other in a way that we don’t talk to each other. There has been a lot of commentary about social media ‘echo chambers’, fragmentation in our society and people’s heartfelt frustration with politics. One of the things that I encourage is to put yourself in your opponent’s shoes – how would you feel if prerogative powers were being used to obstruct Brexit or Parliament passed a bill to force no deal? But counterfactuals have their own problems, and are no replacement for conversations with real people.
For a number of years, Christians in Politics has run a campaign called “Disagree with tea”, about disagreeing well. This is motivated by the Christian principle that every individual is made in the image of God, fearfully and wonderfully made, with the potential to do wonderful things. I would hope that we can all recognise that none of us is that much better than the other people around us and that every person has the capacity to do good. So, with whom are you going to disagree with tea?