How resilient is our constitution? This question is becoming one of increasing pertinence in the UK. All democratic systems have within them protective mechanisms. One objective of these devices is to prevent abuses, such as violations of the rule of law, perpetrated by groups and individuals not committed to the values that underpin the society. In many countries, the chief source of such protections can be found in a so-called ‘written’ constitution. Such texts typically provide legal entrenchment for fundamental democratic rules and principles. The courts have a role in upholding them, and special mechanisms stipulate that they can only be changed on a basis of a higher degree of consensus than that required for alterations of more regular law.
The UK, famously, lacks a ‘written’ constitution (though parts of it exist in writing). In doing so it is in a select group of democratic states internationally, the fellow members of which are Israel and New Zealand. It would be wrong to conclude that ‘written’ constitutions are always effective, or that they have necessarily always proved a better means of upholding key democratic norms than the UK approach. But this peculiar ‘unwritten’ quality is an important feature to take into account when we assess the UK political system, particularly in present circumstances.
It is reasonable to regard the UK, as a consequence of its ‘unwritten’ system, as relying to an exceptional extent upon conventions, understandings and assumptions more than hard rules. The UK constitution relies heavily on self-regulation. Here lies the core of possible concerns about the viability of the UK system under pressure. A more orthodox view of the UK constitution has been that it does not need the rigid framework required by democracies elsewhere in the world. It is, so such arguments run, immune to the threat of governments that compromise the system itself. One component of this school of thought is the so-called ‘good chap’ theory. It holds that people who come to positions of political authority in the UK have an almost innate knowledge of what are appropriate forms of conduct and where the boundaries lie; and that they also have a desire to act in accordance with such protocols. A second aspect to this theory of constitutional stability is the observation that in the UK, partly thanks to its parliamentary electoral system, there is a strong tendency towards dominance by two parties that tend to converge on the political centre, thereby eschewing more extreme programmes.
Present circumstances should cause us to revisit these precepts. As David Klemperer has shown in his recent Constitution Society report on the subject, there is a strong case to be made that, lately, the so-called ‘First-Past-the-Post’ system used for Westminster elections is having a polarising impact upon the two main parties. Furthermore, in a related development, the current political climate seems to be conducive to the ascendancy of politicians who are not only characterised by a lack of regard for the more traditional conventions of the political system, but make a positive virtue out of this disdain.
A range of factors may have played a part in stimulating these tendencies: economic trends of the past decade; public sector austerity; an increased polarisation of social values; changes in party leadership rules; responses to inward migration; the impact of the Internet and social media upon political discourse; interference and manipulation (however defined) from without and within; and the EU referendum and its aftermath. Whatever the precise motives, it is now appropriate to discuss the possibility of a self-consciously ‘anti-system’ politician, at the head of a similarly inclined party, becoming Prime Minister. The over-used label ‘populist’ might at this point be apt. Such an outcome is not inevitable. Similar fears have been raised in the past and proved unfounded. The precise form it might take is difficult to predict. But it now merits consideration, including from a constitutional perspective.
Examples from around the world in different time periods suggest that, while such leaders might not immediately seek to supplant the democratic system in its entirety, it is nonetheless intrinsic to their approach that they behave in ways that are democratically problematic. Their ideology is founded in the idea of powerful, privileged and embedded enemies, whose rules and authority are illegitimate, and whose treachery must be exposed and eradicated. In rejecting sections of the social elite, populist governments may also need to cultivate power bases elsewhere. In a UK context, this perspective could lead to a number of possible activities, which would tend to have constitutional implications. They might include heavy politicisation of public appointments; the targeting of the rights of unpopular minority groups; the creation and deployment of excessively broad delegated executive powers; legislative ouster clauses restricting the potential for judicial review of those powers; attempts to bypass standards of propriety involving the use of public money to the benefit of political allies; misuse of emergency powers; and efforts to curb unfavourable media coverage (perhaps focused on public broadcasters).
Individual cases of many of these kinds of activities have taken place in the past in the UK. The sign of a more clearly populist government would be its pursuance of such approaches in a more concerted, comprehensive fashion. Indeed, they could be central to the programme of an administration that actively presents some of them as a good. At this point, both the ‘good chap’ principle and the supposed tendency towards moderation in the party system will have failed the UK. With these protective devices circumvented, what barriers would remain, and how effective might they prove?
Under the UK constitution, supreme executive authority is, by tradition, not vested in a single leader, but a committee of senior politicians: the Cabinet. In theory, it takes major decisions as a group on a basis of consensus. Furthermore, legal authority to act is not generally vested in the Prime Minister (or indeed the Cabinet, which has no basis in law), but in individual Cabinet ministers, who answer to Parliament for the exercise of their powers. Parliament also votes money individually to these senior ministers. If they are to be effective, prime ministers require the compliance of their Cabinets. Individually and collectively, Cabinet ministers can act as a considerable constraint upon a Prime Minister if that premier is pursuing goals they regard as inappropriate. However, the extent to which create they create such barriers depends to a large extent upon who they are and the circumstances of the time. An important power possessed by prime ministers is the ability to appoint and dismiss ministers, and choose their portfolios. A ‘populist’ type Prime Minister, perhaps having recently won a General Election, might possess sufficient political strength to overcome resistance from within Cabinet (if there is any such resistance). Furthermore, the premier in question might be able to find and appoint Cabinet members who were supportive of a populist project. There might be a significant degree of turnover in office-holders within this kind of Cabinet. Such a phenomenon of churn can be a key characteristic of populist government.
What of the Civil Service, the staff that advises the executive and implements decisions once made? Could it or its senior personnel offer serious opposition to courses of action set upon by a Prime Minister that they judged improper? In the UK, the Civil Service is bound by its code to uphold the values of integrity, honesty, objectivity and impartiality (special advisers, appointed on patronage, are exempt from the objectivity and impartiality requirements). These principles could offer some basis for resistance to initiatives that officials perceived as inappropriate. Civil servants are obliged to give honest advice – even if it is inconvenient – to ministers, who are bound by their code to take this counsel into account. But officials are also required loyally to assist the government of the day. Various procedures exist to enable them to raise propriety concerns. However, ultimately, if these options have been exhausted, civil servants cannot refuse to implement a particular decision reached by a minister. They must abide by it or resign.
Any influence civil servants wield is exercised almost entirely in private, through the framing of options and provision of advice. The clearest area in which the Civil Service can openly and firmly object to the perceived abuse of power involves financial propriety. The departmental accounting officer (usually the permanent secretary) cannot actually block spending in a way that seems to them improper, but can make their objections known to the Committee of Public Accounts in the House of Commons by requiring a direction to be issued by the minister. The Civil Service could create practical barriers to the operation of a populist programme, short of open rebellion. But perceived resistance from within Whitehall could in turn prompt such a political leadership to seek to unpick the core Northcote-Trevelyan principles (referred to in statute since 2010 under the Constitutional Reform and Governance Act) of recruitment and promotion on merit, and politicise senior appointments within the Whitehall management structure.
Other than resistance from within the executive itself, a populist administration would have to contend with the legislative branch of the constitution. Recent and ongoing experience of the Brexit process suggests a need to qualify conceptions about the idea of Parliament being the ‘sovereign’ source of constitutional authority to which all other institutions, including the executive, are subordinate. The power of Parliament is substantial but often exercised in a reactive way. A government cannot pass an Act of Parliament without, as a minimum, the approval of the Commons (and Royal Assent). But it can operate using Royal Prerogative powers and delegated authority the exercise of which is formally subject to lower – or non-existent – levels of parliamentary authorisation. Parliament, moreover, is in practice subject to party-political considerations, even at a time when the two main parties themselves are fragmented. If the executive had a clear and broadly loyal majority in the Commons, then it would be in a strong position to pursue the agendas it wished to. Even if a government lacked this kind of firm support, it would be hard for the Commons simply to displace an administration if there were no clear alternative. The Commons could force a General Election under the Fixed-term Parliaments Act 2011, which might – or might not – hinder populist forces, depending both on voting patterns and the workings of the electoral system. Furthermore, it is difficult – perhaps impossible – for Parliament, and within it the Commons, to take over fully the work of government, even if it wants to. The authority that the Commons could wield independently of the executive would partly rest upon contingencies such as the outlook of whichever individual held the role of Speaker at the time and the ways in which that person interpreted and applied the law and custom of Parliament.
What part might the Lords play? Peers have long taken upon themselves a vaguely defined responsibility for constitutional guardianship, discussed in previous Constitution Society pamphlets by Dawn Oliver and Lucy Atkinson. In this sense, the prevention of populist abuses could fit well within this self-defined remit. Parliamentary bodies such as the House of Lords Select Committee on the Constitution and the Joint Committee on Human Rights could play a part. The Lords might take a close interest in the creation of delegated powers that seemed excessively broad and arbitrary in their potential application. But there would be limits at work. In historic constitutional understandings, there was a tripartite conception of Parliament. The Commons, the ‘democratic’ component, was counterbalanced by the monarchy, and the aristocracy (and Church) contained within the Lords. Clearly such a model is redundant, and rightly so. But this change created an imbalance within the system, which the failure of the two-party moderation/’good chap’ safeguard mechanisms discussed above could expose. The Lords, as a consequence of the Parliament Acts of 1911 and 1949, is limited in its ability legally to restrict a determined House of Commons, and is constrained further by convention.
Nonetheless, at least under the powers it currently possesses, the Lords has the capacity to make difficulties for a government. It can, for instance, slow down bills, work with groups in the Commons to amend them, and veto statutory instruments. Following the appearance of Life Peers and then the removal of most hereditaries, the Lords has become more assertive with respect to government legislative proposals. However, the Lords recognises, with good reason, that it is subject in practice to constraints. Peers are often wary of overplaying their hand. They would probably show a strong aversion to allowing themselves to be caricatured in a populist ‘peers versus people’ narrative. The Commons, for instance, if subject to populist control, could use this type of dispute as a pretext for using the override provisions contained in the Parliament Acts to strengthen its position further, by amending the Acts themselves. It might seek to neutralise opposition through making a mass creation of peerages of its own (rewarding allies in the process), or pursue outright abolition of the second chamber.
What of the third constitutional branch, the courts? Standard accounts of the UK system depict an independent judiciary upholding the rule of law as a key strength. From the point of view of the present subject matter, a crucial aspect of the legal system is that the executive must be subject to the law. The courts are responsible for ensuring that it is. We have recently seen the kind of pressure to which judges can become subject. In September 2016, members of the Divisional Court of England and Wales were denounced as (among other things) ‘Enemies of the People’ when they found against the government in the Millercase. There was counter-criticism of ministers for failing properly to defend the judiciary against such attacks. Under a populist government, rather than failing to respond adequately, the government might be leading such an assault, and trying to compromise the independence of the judiciary through intimidation.
In the scenario of populist ascendancy advanced for the purposes of this discussion, a political leader might do more than simply pressurise the judiciary. Moves might be made to circumscribe its ability to review the actions of the executive at all. A latent tension in the UK constitutional system involves the twin principles of parliamentary sovereignty and the rule of law. Normally, enforcing or obeying an Act of Parliament and upholding the rule of law are synonymous with one-another. However, what if the legislation in question violates key principles of the rule of law itself? What if, for instance, it provides for the arbitrary denial of individual rights? Or if it seeks to prohibit judicial review of the exercise of discretionary delegated power by the executive? At this point, some – but by no means all – jurists might assert that the principle of common law constitutionalism could come into play. According to this doctrine, the courts have a right and a duty to discern and assert fundamental constitutional principles, even to the point of declining to recognise as law an Act of Parliament if it fails to conform to them. Judges might allude to this possibility in an obiter comment, but actually putting it into practice in a heated political atmosphere would be a bold move. As with the Lords, there are good democratic reasons why a court would be reluctant to resist a government in this way, and there is no guarantee it would win the political battle that would probably ensue. If the courts do not wish to be involved in ruling on the Sewel convention – as the Miller judgement showed – despite this rule having statutory recognition, can they be relied on to protect other principles that are not included in legislation? This last line of defence against populist abuse might well not prove effective. Even if it did, a populist movement might seek, in the longer term, to politicise the appointments process and obtain a more amendable judiciary, or to introduce means by which ministers or Parliament could review the decisions of courts.
What other safeguards might there be? The functioning of a government relies in a variety of areas upon the deployment of Royal Prerogative powers. These authorities are technically attached to the monarchy, but in practice largely exercised by ministers and the Prime Minister (or in accordance with their wishes). They include the provision of Royal Assent to legislation; control of the armed forces; the conferral of honours; the issue and withdrawal of passports; and the appointment and removal of ministers. The monarchy has a powerful imperative to avoid involvement in political controversy and appear above party politics. It avoids visibly obstructing the government of the day. Potentially, however, a populist administration could place the monarchy in a difficult position, through attempting to deploy prerogatives for problematic purposes, such as the passing of legislation that compromised democratic values . Yet for the monarchy overtly to resist such an administration would be a bold step. Far more even than the House of Lords, it lacks the democratic legitimacy to do so confidently.
I am not claiming that we are necessarily on the brink of a radical populist government of left or right (or centre). But considering such a scenario and its implications now is an important task. This initial sketch would no doubt benefit from expansion and interrogation. I think it has revealed, however, that close attention should be given to protective and balancing mechanisms, in the event of the failure of the standard protective devices of two-party moderation and self-limitation by good chaps. Our system has been, over time, successful in providing for stable democracy and deserves credit. Yet like any model, it has its weaknesses, which have lately been exposed. At their core is the lack of provision for legally entrenched fundamental rules, that a ‘written’ constitution can provide. It would be no cure-all and would bring with it complications. But it could create an additional barrier to actions of populist ill-intent. Clearly governments can seek to alter ‘written’ constitutions in line with heightened amendment procedures, or try to ignore them altogether. But in so doing, they can generate unwanted controversy, create a focus for opposition, and they might not succeed. Those – including myself – who have argued in favour of a ‘written’ constitution in the past have generally been dismissed. The grounds for doing so have included that there was no need for it, the abuses it might help prevent were not going to take place in the UK, and that such texts are generally only introduced after major upheavals, which do not happen here. My position has been that it is better not to wait for a crisis, by which time it may be too late. If events prove me correct, I will not take any pleasure in their doing so.
This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.