The UK’s constitutional model relies upon there being senior figures able to show the kinds of self-restraint, historical awareness and grasp of the rationale behind the main conventions that guide its operation. But it seems that all these attributes are in short supply.
As Boris Johnson’s time in office demonstrated, this model is vulnerable to a determined leader with a large Commons majority. This was an administration which believed it had “a mandate to test established boundaries”, in the words of the Cabinet Secretary, Simon Case. That experimentation included legislating to contravene international law, attempting to suspend parliament and ignoring conventions about parliamentary accountability.
Equally telling is that those who were so keen to pronounce on the need for reform during Johnson’s tenure have now gone quiet about the power the constitution affords to majority governments at Westminster as the prospect of an emphatic victory in the general election looms. And those Conservative voices who complained about any potential blockage to the exercise of executive authority may well soon be voicing constitutionally rooted objections to the prospect of a Labour government with a large majority pursuing policies that relate to the rules of the political game – like, for instance, establishing the vote for 16-year-olds.
Johnson and some of his ministers appeared to believe that the executive had the right to implement its plans without challenge. Bills were bulldozed through parliament without any concessions being entertained. High-level “skeleton” legislation was introduced without policy detail, preventing parliament from examining government proposals. And Johnson showed a disregard for the peace and stability established in Northern Ireland in order to get his version of Brexit through the House of Commons.
On these, and other, occasions, the checks and balances of the British system crumbled. Johnson may be gone but the constitutional question he posed remains. What is there to stop any other government taking a similar tack?
Politicians need to engage with the risks of this model and to find ways of stepping back from party tribalism when considering these issues. At a time where attachment to democratic norms is weakening and trust in institutions collapsing, sustaining a degree of “forbearance” is one of the duties of democratic leaders, as the political scientists Steven Levitsky and Daniel Ziblatt have argued.
This is where the UK model is particularly vulnerable. Without a conception of higher law, sitting above day-to-day politics, there is little to stop governing parties changing constitutional processes to suit themselves. And the sense that the rules of the game are set by the political winners is likely to corrode public trust yet further. Nor is this trait confined to government in London. Remember the Scottish National Party’s insistence that securing a majority of Scottish seats in a UK general election would hand it a mandate for independence, merely because it declared it would be so.
The lack of engagement with these questions is a telling reflection of the secondary status of constitutional issues in British political culture. And yet, cutting against this assumption is the clear interest that all political representatives have in making sure that the system has sufficient credibility in the eyes of an increasingly sceptical public. They would do well also to keep in mind that an unchecked executive may be an asset when your party is in power but could be a nightmare when in opposition.
A major recent review of these issues we recently conducted at the Bennett Institute for Public Policy, in partnership with the Institute for Government, concluded that there is a need for enhanced checks on power to be institutionalised if the UK’s political constitution is not to be further – perhaps fatally – eroded.
One solution would be to set up a cross-party committee to provide authoritative views on constitutional questions, operating at some remove from the government. Another would be to establish as a new orthodoxy the idea that a category of constitutional legislation can sit outside day-to-day politics. Legislation that amends the fundamentals of the political system could be placed in a category of its own, with greater scrutiny provided and a higher bar established for its subsequent repeal – as has been the case in New Zealand since 1956. There is also a real need to do much more to incorporate citizens’ voices within arguments about constitutional change.
Labour’s election manifesto does not offer much in the way of constitutional and democratic vision, and its silence on voting reform for the Commons is deafening. But there are important commitments on Lords reform and a full-throated commitment to extending and deepening the existing model of English devolution.
These kinds of proposal suggest an acceptance that different aspects of the governing model are in need of overhaul. But the spirit behind them needs to be applied more widely if the UK is to save itself from the damaging consequences of the polarised constitutional politics that has taken hold in the US, and the rising tide of popular disenchantment that is eroding the trust upon which democracy rests.
This article is part of the series “How to fix a nation”
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