How have the British ‘improved’ their constitution over the last 100 years. I have a look but conclude with how the Government is riding roughshod over what puny safeguards exist. I look at parliamentary sovereignty, suffrage, the parliament acts, the impact of the EU on the constitution, human rights act, the House of Lords and supreme court, and finally the Prime Minister. I conclude with a sad cry to do better.
Parliamentary Sovereignty
One, if not the central, plank of the British Constitution is that of Parliamentary Sovereignty. This means that Parliament can change its mind and cannot bind itself or its successors. It also means that its decisions i.e. statute law cannot be challenged in the Courts, although Minister’s decisions can be so challenged. i.e. Judges not Ministers have the last word on what the Law says.
Universal Suffrage
The UK’s route to universal & equal suffrage has been slow. In 1918, the UK abolished the property qualification for men over 21 and allowed some woman to vote, based on a property qualification. It interests me to learn that Parliament considered proportional representation which lost by only 7 votes. In 1928 all women over 21 were given the vote. This status quo was amended in the 1948 Act which abolished the University seats. Previously graduates got to vote in one of four additional constituencies; this was stopped. In 1969 all over 18-year-olds got the vote. [1]
The mechanical primacy of the House of Commons is based on the fact that only the House of Commons can initiate spending and taxation bills. This dates from the restoration in 1660. The House of Lords remained able to veto proposed legislation; this was reduced to delay for three sessions in 1911, after a dispute about the budget, and in 1949 to one session after disputes about the Labour governments’ nationalisation plans.
Judicial Review
Another major influence on the UK constitution was, the EU Communities Act 1972 which impacted the way in which laws were made, particularly using secondary legislation but also permitting the ECJ/CJEU to intervene in broad areas of law, related to the implementation of Directives and Regulations. The UK’s accession to the Lisbon Treaty with an effective date of 1 Dec 2009 also meant the UK adopted the EU’s Charter of Fundamental Rights and allowed the CJEU to act in cases where the CFR was engaged. The other constitutional impact was the introduction of elections for the European Parliament, the extension of suffrage and the eventual mandatory implementation of proportional representation.
The Blair government introduced the Human Rights Act (HRA) and significant and important internal constitutional reforms inc. Scottish and Welsh devolution statutes and the reintroduction of London-wide local government. The HRA made the European Convention on Human Rights part of the British common law corpus but subordinate to statute law. Since then, the UK hasn’t done so badly at the ECtHR; I wrote about it here , despite the constant braying of the Tory qualified but legally illiterate backwoodsmen. The House of Lords judicial committee latterly the Supreme Court cannot strike down legislation but can declare it incompatible with the ECHR.
The UK split the judicial committee of the House of Lords out into a Supreme Court in 2005. The Prime Minister still appoints its members. I am unclear how real this new found independence from the legislature is; some will argue it was just a New Labour paint job, yet again adopting US nomenclature but changing little, others feel that having premises separate from Parliament is an important platform for its burgeoning independence.
Another of the Blair Govt’s ‘reforms’ was to restrict access to legal aid, via the Orwellian named Access to Justice Act 1999; by the end of the New Labour Govt., only 27% of people were eligible for legal aid. The Tory administrations that followed attempted to cap the legal budget culminating in Legal Aid, Sentencing and Punishment of Offenders Act 2012 and restricted access to Judicial Review in the Criminal Justice and Courts Act, stopping 3rd party organisations acting for plaintiffs. They are consulting again and consulting on replacing the Human Rights Act.
Devolution and parliamentary sovereignty
Parliamentary Sovereignty has been politically challenged by the devolution laws and by the three recent referenda. The Devolution laws tried to guarantee to the Scottish and Welsh people that these new constitutional settlements would not be removed at the whim of an English parliamentary majority. The Scottish Act was confirmed by referendum. Both assemblies use proportional representation.
Since 2010, the UK has run referenda on Proportional Representation, Scottish Independence (for Scottish Residents only) and most disruptively Brexit. The post Brexit referendum debate about whether Parliament could exercise its sovereignty to set aside the referendum was vicious and, in many cases, induced great cowardice in many MPs as the ‘popular will of the masses’ was deployed to delegitimise a political elite. Legally Parliament could have done overturned the result[1], and morally it should have confirmed that the deal negotiated was what people wanted although many will argue that the 2019 general election was that popular mandate.
The House of Lords
The Blair Administration also reformed the House of Lords in the 1999 Act they removed all but 92 of the Hereditary Peers. The rest of the House are government i.e. prime ministerially appointed Life Peers. Any further attempt to reform the House of Lords, and they have been numerous, have failed. The lack of a popular mandate for membership of the second chamber is one of the key failings of British democracy, the UN Declaration of Human Rights, says, in Article 21.1,
“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” The House of Lords cannot be considered to represent the people.
The Prime Minister
The Prime Minister is the inheritor of powers of the monarch and from their own mandate as having the confidence of the House of Commons. The key constraints on a Prime Minister, with a majority in the House of Commons are based on convention and sometimes government policy documents such as the Ministerial Code although this is issued in the name of the Prime Minister and its enforcement is internal to the Government i.e. accountable to the Prime Minister. In some cases, the Government’s interpretation of royal prerogative can be challenged in the court as was the case where Johnson prorogued Parliament to stop it voting him down on Brexit although it seems the current from this control. One should note that most recent major uses of military force overseas have been subject to parliamentary votes although the control of the military remains a government prerogative, but these are merely precedents in the gift of the Government which is appointed by the Prime Minister.
Another breach of convention was in 2017 when May’s Tories took majority shares of all the select and business committees despite not having a majority in the House.
Since the repeal of the Fixed Term Parliament Act, the House of Commons cannot bring down a government as the decision to hold an election exclusively belongs to the Prime Minister. Even a vote of confidence or a budget defeat, previous triggers, would not cause a shameless government to resign and go to the country.
We should note that under Queen Elizabeth (II) every potential use[2] of the royal prerogative requested she has taken the advice of the Prime Minister; it would seem they wish to depoliticise the monarchy over these government forming, uber-political powers presumably to maximise their survival chances. I believe it is highly unlikely that she would fire a Prime Minister even if they lost a vote of confidence.
We may have developed a constitution where a Prime Minster is accountable to no-one, except possibly their own Party’s recall mechanisms. This was predicted, among others, by Lord Hailsham, a Tory Lord Chancellor when criticising the Callaghan Government (76-79), probably over nationalisation. It was also predicted by De Toquville, when he coined the phrase, the Tyranny of the Majority.
Conventions
Johnson’s administration proves what everyone knew, that the British Constitution only worked while politics was a monopoly of gentlemen. Firstly none of the controls are law, they are all based on conventions and Parliamentary Sovereignty means that they are not permanent. (The recent habit of once prohibited retrospective legislation and emergency parliamentary/legislative schedules also strengthens a Govt. and thus a Prime Minister’s hand.) But secondly, it’s the shamelessness of Johnson and his Government which is the danger to democracy.
The US Constitution seeks to embed a separation of powers and an inertia against change. In the US, the judiciary can act as a brake on the actions of an ambitious and corrupt executive because they have a basic law, a written constitution. The US Constitution was amended 4 years after it was ratified introducing the Bill of Rights, guaranteeing to citizens specific protections against the state. Japan & Germany had their constitutions rewritten after WW2 and both had entrenched commitments to human rights written into them. Human Rights and a basic law are now common place and must be considered one of the foundations of democracy.
It fascinates me that other constitution that one might consider as similar to that of the UK is Iran, which has a seemingly almighty supreme leader with massive powers of patronage; in my second brief review of the Iranian constitution, (Medium) I came to the conclusion that the British Prime Minister was more powerful than the Iranian President and this was before Johnson’s ultimately unsuccessful attempt to prorogue Parliament to stop it holding the Government to the law.
Human Rights a basic law i.e. a written constitution superior in authority to the parliament and an independent judiciary are now common place and considered one of the foundations of democracy. The UK is protected neither by a constitution nor by a Human Rights guarantee, it has none of these protections and Brexit, involving the exit from the Charter of Fundamental Rights weakens what we had.
Is it worse under Johnson? The short answer would seem to be “Yes”. Since the election, there have been number of breaches of the ministerial code and statute legislation, involving money, influence, vote buying or plain personal convenience. See also my posts ( Medium | Blog ). This growing corruption would seem to be a mandatory corollary of ‘strongman’ government, a growing worldwide phenomenon which is challenging democracy (Medium | Blog) in too many places. The countervailing forces of a strong civic society, and a free and independent press are also missing in the UK as for too long we have permitted press publishers to write their own regulation.
We have no basic law/constitution, nor it would seem today a police force willing to pursue wrong doing in Whitehall.
ooOOOoo
[1] It was told by the High Court that they could not instruct a rerun because the referendum was legally made to be advisory but was criminally flawed.
[2] The 1974 and 2010 transitions, and the 2019 prorogue, maybe lessons learned from the Suez crisis although it seems hard to believe that the crisises for the monarchy during her reign have been replays of the Edward VIII, marriage and divorce.
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