Soon, this six-week general election campaign will become a memory—though one perhaps associated with various pratfalls of the outgoing governing Conservative party. What will become more significant, however, is the administration to come. The next government (likely this time to be formed by Labour) is widely predicted to have a majority in the House of Commons the sheer size of which is rare in British politics.
Some outgoing ministers and their remaining supporters have taken fright at this prospect. They warn darkly of something called a “supermajority” that will somehow enable one-party rule. One or two even talk of the terror of a socialist state with unlimited power.
Of course, the Conservatives, facing this heavy defeat, are in no lofty position to caution about the misuse of executive power. Twice the Supreme Court has had to strike down attempts by recent Tory prime ministers to exclude parliament from its proper constitutional role. There have been attempts to legislate so that the government can break the law. There have also been efforts to bully the House of Lords.
And there has been the abuse of secondary legislation and of official guidance, and as well as efforts to thwart the rules and disciplinary procedures of the House of Commons. Few if any governments have ever produced such a detailed catalogue of constitutional trespasses and aggressions. And ministers attempted to justify many of these wrongs by employment of the phrase “will of the people”.
What the Conservatives should be more concerned about is not a supposed “supermajority” in parliament—a concept unknown in our constitutional law and practice—but of a government having a large majority, and knowing how to use it. This will be a change from what we have had recently.
In 2015, the Conservatives achieved their first overall majority since the early 1990s, when John Major’s hapless administration went into a Commons minority after defections and byelection losses. It was a long, hard climb back to overall power. And it was in stages: in 2010, the Tories had to form a coalition even to enter government.
By reason of the Brexit referendum a year after that 2015 victory and its comfortable majority, the government became preoccupied with the departure from the European Union, and in 2017 the new Prime Minister Theresa May squandered that majority in an unnecessary general election. In 2019, a combination of special features—“getting Brexit done” and the possibility of a Corbyn premiership—enabled Boris Johnson to win with another good majority.
But the 2019-24 government, like its 2015-17 predecessor, wasted that majority. The Conservatives may well have exploited Brexit for their party advantage, but they were the proverbial dog that caught the car. They had a majority, but no direction.
Instead of working with that majority, and passing fundamental reform by means of acts of parliament, they have achieved almost nothing through their parliamentary majority.
Indeed, ministers and their supporters have spent more energy attacking the other institutions of the state, or with gimmicky projects such as “levelling up” and the Rwanda fiasco, than in taking advantage of that rare constitutional prize: a sustainable, working majority.
And now that prize looks as if it will go to another recipient. All that work in opposition and coalition from 1997 to 2015 will be for nothing. Even their embracing of Brexit seems as if it will lead to long-term disadvantage after the immediate high of that 2019 win.
Keir Starmer is likely to be the new prime minister on 5th July 2024 and it will be he that now gets that great prize. Unlike Tony Blair in 1997, he is unlikely to use that majority to effect constitutional reform (devolution, Human Rights Act, freedom of information—though Blair’s liberal attitude to fundamental rights and constitutional reform quickly changed to illiberalism after 9/11).
The question is instead whether Starmer will be willing to use that majority to effect economic and social policies in a way that Clement Attlee did after 1945—or indeed Margaret Thatcher did with her victories in 1979 and 1983. And it will be a test of will, for with a large majority the incoming administration will certainly be able to do this.
If so, then the outgoing Conservatives may be more struck, not by the use of a “supermajority”, but by the proper use of a majority in passing primary legislation. They had that opportunity, too, with their 2015 and 2019 majorities. They chose to waste it instead.
All that said, the variety of ways to misuse executive power will still be available to the new government. These include inappropriate use of statutory instruments and official guidance. And the one thing about former human rights lawyers such as Starmer is that they are just as able to work out how to lawfully infringe fundamental rights as to assert them.
But the time for the Conservatives to implement and strengthen checks and balances and fundamental rights, so as to prevent the wrongful conduct of a future Labour government, has now passed. They had their chance.
The reality is that their expressed concerns about a “supermajority” mask a sense of failure that their hard-won majorities in 2015-17 and 2019-24 were, to borrow a phrase from Boris Johnson, piffled against the wall.
