The unique character of Britain’s constitution can make our politics great again
When a new government convenes in Downing Street, they are confronted with a reality not found in many other democratic systems: they have the authority to carry out their policy programme with few legal limitations. There is no court that can strike down their legislation; no sub-national or super-national body with the authority to thwart them; no elected senate or president to block them. An Ambassador in London once marvelled, “It took me a long time to understand that a British government, with a simple majority in the House of Commons, can do pretty much what it wants to…. I kept looking for the constitutional checks and institutional balances that could stay the will of the British government. But I could find none”.
And yet, governments today do not feel very powerful. For many Britons, government feels sclerotic and listless. Rather than a powerful ship of state steaming through choppy waters at a great clip, government feels more like a chaotic flotilla, fragmented into a multitude of impotent little sailboats and leaky old steamers, drifting into different directions or slowly sinking.
In a new volume of essays published by the think tank Policy Exchange, I have drawn together a group of academics, politicians, lawyers, and political experts to make the case for using the British constitution’s unique character to make government work again. Entitled Strengthening the Political Constitution, the collection covers a wide range of topics, including the election of party leaders, the Ministerial Code, the war prerogative, law officers and government lawyers, repealing the Fixed-term Parliaments Act, the central importance of the House of Commons, the value of the unelected House of Lords in general and hereditary peers in particular, devolution, international law, the European Convention on Human Rights, and more. It connects with Policy Exchange’s longstanding commitment to the primacy of politics in our governing arrangements, through the Judicial Power Project and its new “Future of the Left and Right” projects.
Our constitution is not a single legal document but a mix of written and unwritten elements, whose key principles ought to make it possible for governments to implement their policies and to be responsive to the British people. Four key principles stand out.
First, Parliament is sovereign. There is no higher legal authority. What Parliament enacts is ipso facto constitutional. Second, no Parliament can bind its successors. There is no hierarchy of law. What one Parliament enacts can be undone by another. The past cannot bind the future. Each generation inherits from the past but is ultimately the master of its own destiny.
Third, the British state is unitary. Parliament may choose to devolve or lend its powers to other bodies, but it cannot surrender these in perpetuity. The authority of other bodies to act is ultimately conditional on the forbearance of Parliament, and Parliament can override their decisions, should it wish to do so. Fourth, the House of Commons enjoys primacy within Parliament. The House of Lords may revise, amend, and delay, but it cannot ultimately thwart the will of the elected chamber of Parliament.
This is the “political” constitution of the United Kingdom. The boundaries of government are not limited by a legal document. They are set by politics itself: the Official Opposition, robust parliamentary debate, intense scrutiny from the media, public protest. They are the choppy waters through which the government must navigate, knowing that it will inevitably face the great squall of a general election, which could potentially sink the whole operation.
The Labour Cabinet minister Peter Shore once said, “I did not come into socialist politics in order to connive in the dismantling of the power of the British people”. Yet, over the past generation politicians on all sides have been engaged in such a tawdry connivance. There have been many attempts to dilute, fragment, and castrate the power of the Crown-in-Parliament. New institutions and quasi-legal regimes have been established which mimic many of the institutional constraints placed on governments in more legalistic constitutional orders.
Even if Parliament remains technically sovereign, supreme, and unitary, many institutions give the opposite impression. Politicians have divested practical power to unelected officials in regulatory bodies, courts, banks, and expert committees. Often, the claim is that such bodies will do a better job than the people’s representatives. But what if they do not? Who are they? How do we hold them accountable? How do we get rid of them?
Political constitutionalists see the clash of ideas as central to democratic politics. They are inclined to see politics as war by other means, and Parliament is the body which contains and facilitates these great fights. While the governing party holds profound legal authority, its power is always contingent and faces sustained political challenge by opponents. Conservative prime minister Benjamin Disraeli wisely advised, “Above all, maintain the line of demarcation between parties; for it is only by maintaining the independence of party that you can maintain the integrity of public men, and the power and influence of Parliament itself”.
This is a vision of politics which was prized deeply by both Margaret Thatcher and Aneurin Bevan. According to his biographer Michael Foot, Bevan had “acquired a deep respect, almost love, for the House of Commons”. It was “a place where given proper use of its possibilities, poverty could win the battle against property without bloodshed”. Bevan “came to regard Parliament as the most precious political instrument in the hands of the people”.
Foot, himself, was a great believer that politics was a battle of ideas. The Labour leader celebrated the adversarial nature of British politics. He warned, “Above all, we must not take measures which will drain away the political vitality from this place. If that is done, something will be destroyed which it will be very difficult to recreate”. This outlook, connecting Disraeli and Thatcher with Bevan and Foot, is very much the spirit that animates this new Policy Exchange volume.
