A hundred years is a long time in politics. And yet the constitutional and legal framework in which British politics operates has changed little since Victorian and Edwardian times. The regulation of elections is predicated on the constituency model of local campaigns. The relationships between the elements of the state—legislature, executive and judiciary—are still pretty much as Walter Bagehot described and AV Dicey theorised in the late 19th century. If there were a picture album for the constitution of the United Kingdom, it would be made up of black-and-white plates.
But this venerable constitution is at breaking point, and we are only one more foolish or cynical act from Prime Minister Boris Johnson away from a full-on constitutional crisis the outcome of which nobody can predict.
Constitutional law is currently exciting, but constitutional law should not be exciting. A constitution sets out the parameters of political action—which element of state does what, and what happens if there are tensions. It should not need to be litigated often, but in recent months such tensions have become almost routine. Why? Partly because of the mismatch between the UK’s constitutional and legal arrangements and the realities of contemporary political action. We no longer have the appropriate rules to govern the politics of our time.
One case in point is the 2016 Brexit referendum itself, and especially the campaigns for the Leave vote. Another is the recent attempt by the British government to game the constitution by abusing prorogation and precedent, which led to this week’s emphatic and unanimous Supreme Court decision.
First, referendums. They do not sit well in the British constitution and they have rarely been used. There have been only three UK-wide referendums (two on European Economic Community/European Union membership and one on electoral reform). There have also been territorial referendums in Northern Ireland, Scotland, Wales, London and the north east. But we should be glad to have had so few UK-wide ones.
The main problem with a UK-wide referendum is that it creates a mandate which can compete with and undermine parliamentary supremacy. A poison may be injected into the body politic that can only be got rid of if the referendum decision is somehow implemented or else extinguished by a further referendum mandate. Until one or the other is done, it can cause ever-worsening instability that cannot be gainsaid by parliamentary majorities.
There are further legal problem with referendums. Without any traditional place in the UK constitution, there is no established means of moving from a referendum result to enactment. Referendums are advisory unless parliament provides differently. It is possible to enact something subject to endorsement in a referendum, and this approach was taken on the relatively simple question of swapping Westminster’s electoral system to the Alternative Vote in 2011: if the referendum had gone through, the law would have been changed. But on the far more complex questions of extricating Scotland from the UK and Britain from the European Union, many details had not been legislated for or even settled at the time of the public vote, and so the result for change was and had to be, in legal terms, non-binding.
“Constitutional law is currently exciting, but constitutional law should not be exciting”This creates the potential for a clash of mandates between parliament’s presumed intention of a referendum being only advisory and the political and moral mandate. This creates another difficulty when it comes to regulating good conduct of the referendum. There is no easy way to do this. For in the event of misconduct in a referendum, there is no obvious way to have a legally non-binding (but politically extremely important) result set aside, unlike say disqualifying a councillor or member of parliament from their seat. There is no legal way to undo a non-legal thing. Unlike parties that can be held to account in future elections, referendum campaigns come into existence for a referendum and dissolve when the voting is over. The national nature of the campaigns also makes the constituency-based model of spending caps redundant. The transborder flows of money and the use of social media and virtual technologies are all harder to track than the old-style focus on receipts for printing leaflets and the rents for committee rooms. Anyone who lives in a town can see how many billboards a party has paid for, but there is no easy way to see what paid-for messages are reaching somebody else’s Facebook account.
There were many concerning irregularities during the referendum campaign. But three years later, and with various agencies doing a number of investigations, there has not been any real resolution. Nobody has been brought to justice in any meaningful sense. And even if civil or criminal liability was found, the referendum result will still stand. There is nothing any court could do about this, even though had the result been binding at law it probably would be quashed. Much of what happened in the referendum will be replicated in the next general election. The constituency-based model will again be a nonsense. The laws on national political campaigning need to be overhauled completely. Election law is no longer fit for purpose.
The supposed referendum mandate converted the government into a conduit for the “will of the people.” It matters not that the people then voted in 2017 for a hung parliament that required a Brexit done by consensus. The prime minister and his supporters believe the referendum result entitles them to break any inconvenient constitutional convention and misuse the prerogative powers, regardless of a hung parliament. And as the greater part of the UK constitution rests on conventions and prerogative powers, this creates a fundamental problem.
Here the legal system has done a better job than with the referendum campaigns. In its landmark judgment, the Supreme Court made a couple of modernising moves, so that such errant behaviour will be more difficult for future prime ministers. The first was to insist that, regardless of the source of power being prerogative rather than statute, the prime minister’s exercise of discretion still has to be based on reasonableness. The PM can still seek prorogations but the greater the effect on parliament, both in its legislative and supervisory functions, the more compelling the reason has to be. It is no longer at the personal fiat of the prime minister.
“There now needs to be a Johnson and Cummings test for every part of the constitution”The second was to impose on the prime minister a “constitutional” duty when exercising the power to have regard to the effects on parliament as well as the selfish interests of the government. This is radical, as British constitutional jurisprudence has until now pretended the special role of prime minister hardly existed: he or she was just first among equals, the chair of the cabinet and servant of the crown. A century and a half after Benjamin Disraeli dared to explicitly sign an international treaty as “prime minister,” the role is now at last being properly considered by the courts.
But what the Supreme Court did is not enough. These questions should not depend on the unpredictable outcomes of litigation. There now needs to be a Johnson and Cummings test for every part of the constitution: what would a malevolent No 10 operation do with this privilege or right? And if the answer is scary, then there needs to be legislative or other legal reform.
Law is politics by other means. The stuff of law is the formulation and application of binding rules to shape human conduct, to provide who has and does not have powers over others, and to determine disputes. As such the realms of law and politics are not separate and distinct. Judges dealing with political questions is as old as law itself. But the ground-rules should be framed and law written so as to make fewer properly political issues a matter for judicial determination.
Politics in the era of Trump and Brexit, and of Bannon and Cummings, presents the legal system with new challenges, some of which can be answered by the courts and due legal process, but there are others it will fail to address. The Victorians and Edwardians were themselves often profound constitutional innovators, sometimes by writing new laws (such as the Parliament Act which allowed the Commons to override the Lords), sometimes by establishing new precedents and sometimes by crystalising ideas (arguably including the sovereignty of parliament itself). They were unafraid to meet the challenges of their own times, and we need the same confident outlook. The need is now for our legislators to be similarly unafraid in making laws that meet the political predicaments of our own times.
