Don't Hobble The House

Richard Johnson writes:

The central rule of the British constitution is the doctrine of parliamentary sovereignty. The Crown-in-Parliament has total legislative freedom, except that it cannot bind its successors. More prosaically, parliamentary sovereignty means that the government can legislate on whatever it would like, so long as a majority of MPs consent.

Nothing is off the table. Parliament can legislate to confiscate the wealth of the richest people in the country, or it can ban trade unions. Parliament can nationalise the health service, or it can close all the mines. Parliament can impose a 100 per cent income tax on the wealthy, or it can abolish the minimum wage. In the British constitution, where there is political will, there is always a way.

Once despotic, the power of the Crown-in-Parliament is today unusually democratic. It affords British MPs a range of political options that in most other systems of government would not be within their constitutional remit — or, at least, such decisions would be subject to ultimate approval by a panel of judges, a set of commissioners, a territorial upper chamber, sub-national legislators or governors, or a veto-wielding president. Whatever comes out of Parliament is ipso facto constitutional. The British Parliament, therefore, is at once a legislature and a continuing constitutional assembly.

Raymond Seitz, US Ambassador in the early 1990s, marvelled at the British constitution compared to his own. “Coming from this kind of fractured, fractious federal background, an American arrives on British shores astonished to find how unfettered a modern British government is,” he reflected. “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.”

The “check” in the British constitution is politics itself. While Parliament can technically legislate how it likes, and while governments have sweeping prerogative powers, both are constrained — but by politics, not by law. The central political check is the necessity of the government at all times to carry the confidence of the House of Commons. At any moment, if MPs feel that the government has gone too far, in one simple act — a vote of no confidence — MPs can bring it down. This is a system which at once maximises political choice and political accountability.

Politics is the only limiting factor on a government’s agenda. I say “only” advisedly because politics is a significant limiting factor. The confrontational, cut-and-thrust style of British politics is of constitutional significance. Unlike in systems with proportional representation which fragment and, therefore, obscure accountability, there is nowhere to hide in the British system. The majority party must “own” its successes and failures. The First Past the Post electoral system tends to generate two big parties, themselves internal coalitions which must be skilfully managed. In doing so it ensures a major party of opposition, which shadows the government’s every move, ready to take the reins of power at the first fatal misstep.

In 1966, the Conservative grandee Quintin Hogg, formerly the hereditary peer Viscount Hailsham, was deeply concerned that the expansion of the franchise and the taming of the House of Lords, two great victories of twentieth-century democratic reformers, had given the House of Commons too much power. He warned, “Of all the democracies, Britain is nearest to an elective dictatorship.” It was a charge Hogg would repeat many times (when Labour was in office) over the next 13 years.

To Hogg’s great chagrin, Labour governments had used their majorities in the House of Commons, sometimes quite slim ones, to nationalise entire industries, reorganise the education system, and strengthen the hand of the British worker against employers. Hogg looked around desperately for someone to stop Labour from implementing these policies, but even the House of Lords — because it was unelected — acknowledged Labour’s mandate and acquiesced to their transformative reforms.

In 1968, Hogg called for a constitutional convention, chaired by “some elder statesman of universally respected character”, to restrict these unlimited legislative powers. Hogg proposed regional parliaments, a British Bill of Rights that would be superior to normal statute, fixed-term parliaments, and the ability of the judiciary to override Acts of Parliament deemed to be “unconstitutional” or passed without “adequate debate”. These reforms would ensure that, if required, judges could overturn the will of a majority in the Commons. For Hogg, the solution to “elective dictatorship” was to take ultimate power away from the elected and hand it to the unelected.

Hogg didn’t get his constitutional convention, but a few years later, the Conservative government elected in 1970 imposed a major change to the British constitution: membership of the European Economic Community. Hogg, having been given a life peerage as Lord Hailsham, was delighted. It was finally an external, legal constraint on the legislative freedom of Parliament.

EEC membership created a new hierarchy of law. European law had primacy. Any law passed by Parliament became conditional on its compatibility with EEC law. For example, legislation that Parliament had passed to require fishing vessels to be 75 per cent British owned was found in violation of Community Law and disapplied.

EEC membership also took away from the UK government some core executive functions, such as the freedom to provide public subsidy to projects and industries of its choosing. Industrial strategy, state aid, and regional development were now in the hands of the European Commission, who, unlike the British government, did not depend on the majority of the House of Commons for continued political legitimacy.

The transfer of these key powers of economic control constituted, in the eyes of the Labour MP Bryan Gould, an act of national “resignation”. Labour’s position was “not for seizing control of and shaping [Britain’s] future but for sub-contracting the management of that future out to others”.

In ending the primacy of EU law, Brexit was a constitutional “revolution” in the original sense of the word — a reversal, a return to what was before. Parliament once again could freely legislate, and governments suddenly became responsible for a whole raft of policy areas — immigration, regional development, agriculture, trade, national economic planning — that had been out of the full control of British governments for decades.

Yet, Brexit was not a complete constitutional revolution because much else had changed in the meantime. From the late 1990s, the British constitution had undergone a series of structural changes — devolved parliaments; a more assertive judiciary; central bank independence; more executive quangos; and referendums — which, although not wiping out the political constitution entirely, placed it under considerable strain. 

In his 2009 book The New British Constitution, Sir Vernon Bogdanor wrote, “The constitutional reforms since 1997, together with Britain’s membership of the European Union, have served to provide us with a new British constitution … [T]he radicalism of the reforms should not be under-estimated, nor the challenge they offer to traditional assumptions about the constitution.”

Many virtues have been ascribed to these reforms. Indeed, it is hard to find dissent among the academics and institutes which provide constitutional expertise in this country. New Labour inventions of devolution in Wales and Scotland, the Human Rights Act, and the Supreme Court — once contingent and contentious — are viewed as sacrosanct, unquestionable features of the “new” British constitution. In a recent book, Sceptical Perspectives on the Changing Constitution of the United Kingdom, my co-editor Yuan Yi Zhu and I have tried to assemble voices of scepticism about these reforms.

Yet, for the most part, to the extent that criticism of recent constitutional reform exists, it has often been to argue that these reforms do not go “far enough”. An elected upper chamber, regional English parliaments, electoral reform, citizens’ assemblies, and a codified constitution are common tonics prescribed by commentators from this point of view, some finding their way into the recent constitutional review by Gordon Brown.

What puzzles me about the constitutional reform debate in Britain is that some of the staunchest advocates of weakening the democratic power of a House of Commons majority identify as being on the left of politics. This was not always the case. Clement Attlee understood that the old British constitution, with its absence of codified checks and balances, provided enormous potential for a democratic socialist party.

A Labour Party which could secure a bare Commons majority (and it was only thanks to FPTP that such a majority was even possible) could bring about sweeping economic and social reforms. Indeed, the National Health Service was really only possible in the form it took because of the peculiar strength afforded to Attlee’s government by the British constitution.

As a lifelong Labour Party member, it saddens me to hear Labour MPs sing the praises of the very devices which would constrain the power of a majority Labour government from implementing a socialist programme. Indeed, many Labour members seem to support reforms, such as proportional representation, that would make a majority Labour government impossible altogether.

Lost is that faith in the power of the British people to act as our constitutional safeguard. I can only explain Labour’s position if it no longer has such faith. To end the legislative freedom of Parliament is to end the political constitution as we know it, and to turn judges into our ultimate political masters. It is, in effect, changing the title deeds of the guardianship over the British constitution from the British public to the judiciary. As the Labour leader Hugh Gaitskell once said, “You may say ‘Let it end’ but, my goodness, it is a decision that needs a little care and thought.”