The British constitution divides opinion. While some laud its gradualism, stability, and flexibility as having served the country well over centuries, others criticise it as both outdated excessively malleable, and now creaking at the edges as it is tested by those in power.
Like many Governments before them, most members of Boris Johnson’s administration are firmly in the first camp, equally happy to appeal to the historic basis of constitutional principle to defend the status quo where it works to their advantage. Just think of Jacob Rees Mogg’s approach to the role of Leader of the House, and to exploit the constitution’s flexibilities where it suits them to explore its limits; think of Boris Johnson’s willingness to test the duty of ministers to uphold national and international law.
But a growing and increasingly vocal number of people outside government, and even some – privately – within, allege that the Government has eroded previously established norms and principles – lacking a supply of ‘good chaps’ inclined to respect those principles, to the point where the constitution is under serious threat. Do such concerns about the health of the constitution reflect an alarmist overreaction by those opposed to the Government’s policy agenda or are they legitimate and well-founded concerns?
There is no absolute answer to this question, but it is worth reminding ourselves of the purpose of a constitution. A constitution is a set of rules which deals with where power lies within a state, who can exercise it, and under what conditions. Some see the fundamental purpose of a constitution as placing limits on the power of the state and protecting citizens from the exercise of arbitrary power. Others tend to emphasise the way in which constitutions empower the state to act on behalf of citizens. These ideas are not mutually exclusive – proponents of either would agree on the main objectives of the UK constitution, as enshrining the role of the UK parliament as the key source of power, embedding key rights and principles, and maintaining checks and balances to prevent power from accumulating in any single institution.
What is the evidence that these objectives are no longer being met? Critics point to the Government’s attempts to sideline parliament – a theme I examine in my new book Held in Contempt: what’s wrong with the House of Commons?- and Ministers’ revealed preference to avoid scrutiny – the latest symptoms being a series of yelps from peers about the inadequacies of secondary legislation and from Commons Select Committees about the Government’s casual attitude to accountability. They highlight attempts to stretch or disregard previously established principles: the Prime Minister’s attempt to prorogue Parliament for an extended period, his willingness to ignore his adviser on the ministerial code, and his removal of the references to the Nolan Principles from the most recent edition of the Ministerial Code. They question whether the Government – through a programme of legislation, for example increasing government control over the Electoral Commission, and more-than-usually-partisan appointments to public bodies – is attempting to weaken the checks and balances that constrain executive power. Supporters of the Government would argue that this approach is not only legitimate but necessary to enable it to deliver on its agenda. Ministers might suggest that their actions have been no different from those of previous Governments. Tony Blair, for example, was happy to transform the role of Lord Chancellor practically overnight and eject the Law Lords from the House of Lords while defending a high degree of executive control over Parliament.
Today’s critics, however, discern a qualitative difference between previous Governments’ willingness to abruptly change the rules of the constitution, as is the right of any Government with a Commons majority, and the current Government’s readiness to contest the legitimacy of any rules and conventions that constrain government action. As the Cabinet Secretary, Simon Case, told a parliamentary committee at the end of June 2022, this is a Government which “believes it has a mandate to test established boundaries.”
One useful test of whether you believe the current Government has gone too far in challenging the boundaries set by the constitution is to imagine a scenario where the flexibilities that Ministers have made much use of were put in the hands of their political opponents. Historically, a consciousness of how new powers, mechanisms, or precedents might be deployed by a Government of a different hue had proved a powerful constraint on constitutional adventurism by the governing party. But under the Johnson Government, elation at having won a substantial majority for the first time in a decade appears to have dissolved any concern about how their changes to the rules of the game might come back to bite them under a future Labour administration. This is not a Conservative Government that is worrying too hard about the long-term conservation of the constitution.
Hannah White OBE is the Director of the Institute for Government. This article first appeared in our Centre Write magazine State shifting? Views expressed in this article are those of the author, not necessarily those of Bright Blue. [Image: Francais a Londres]
