Big Ben

The End of the Whig Constitution

Published: 5 September 2019

The British constitution has long been admired around the world for stability and consensus. Forged in the civil wars across the three kingdoms in the seventeenth century, it has often been presented as an effective balance between executive and legislative power. Originally the instrument of oligarchy, it gradually adapted to democracy and universal suffrage. So widely was it supported that it was never necessary even to write it all down.

This ‘whig’ version of our constitutional history was always misleading. Constitutional development since the seventeenth century left large powers in the hands of the monarch, merely ensuring that these were exercised on the advice of ministers, themselves accountable to Parliament. The rise of party politics then ensured majority governments so that it was ministers who controlled Parliament rather than the other way round. Monarchical and parliamentary authority, rather than balancing each other out, were merged, leaving little room countervailing power. Such a system was always ill-equipped to deal with constitutional crises such as those in the years leading up to the First World War, or the present.

The last twenty years have seen  what looked like a constitutional revolution in response to growing discontent with over-mighty and centralised government. The European Union offered an alternative source of law, based on negotiation among states. Devolution transferred legislative power to Scotland, Wales and Northern Ireland. The European Convention on Human Rights was incorporated into law, in various ways. A Supreme Court was established. The hereditary peers were mostly removed from the House of Lords. Referendums have become part of our constitutional practice. The Fixed Term Parliament Act took the decision to call an early election out of the hands of the Prime Minister.

Yet, for all the flurry of reform, the fundamentals of the constitution were unchanged. The UK political class never really got its mind around pooling sovereignty in Europe, insisting that the sovereignty of the Monarch-in-Parliament was unabridged. Devolution left Westminster with the right to legislate in devolved matters at will, as the Supreme Court insisted in dismissing the Sewel convention. Westminster is only guided, not bound, by the European Convention on Human Rights. The Supreme Court largely confines itself to narrow interpretations of statute law and has declined to engage in larger constitutional reasoning. Bishops of the Church of England and hereditary lords ‘elected’ by their peers continue to sit in the second chamber of Parliament.

The scope of prerogative powers exercised by ministers, remains sweeping. The Government’s position was that there was no need for parliamentary approval either for starting the Brexit process or concluding it. The first was frustrated by a court ruling and the second by an unusual parliamentary rebellion and manoeuvre.

For all the talk of parliamentary sovereignty, the House of Commons does not control its own procedures or even when it sits. When it tries to do so, it is described as a coup.

The Prime Minister is nominated by the Monarch, not elected by the House of Commons. The Commons can dismiss the Prime Minister and so force an election, but the choice of election date is then in the hands of that very Prime Minister.

Referendums are ad hoc, without a consistent set of principles. Some are advisory, while others mandate ministers to act. We now have a third category, an advisory referendum that is then said to be binding on both Parliament and the executive.

Since the monarch has been taken out of politics, we do not have a constitutional arbiter in times of crisis. When there was a hung Parliament in 2010, the civil service intervened to broker a coalition. Nobody is available to mediate in the current crisis. Contrast this with Italy, where the President has intervened to prevent an opportunistic attempt by one of the coalition parties to engineer an early election. The Fixed Term Parliament Act, which requires a two-thirds majority to call an early election can, strangely, be repealed by a simple majority.

Much still depends on convention and practice but not all conventions are equal. The Sewel convention is described as merely ‘political’ and set aside at will but the convention that the Monarch will prorogue Parliament on the request of the Prime Minister is binding. The convention that the Lords ultimately gives way to the Commons was binding in the passage of the EU Withdrawal Bill but now it seems that the Lords can kill a bill by talking it out in a filibuster.

In these circumstances, the constitution is less an agreed system of rules for the conduct of politics than a set of claims which succeed or not depending on the politics of the time. It is a game without rules and with no referee. Of course, no constitution can provide for every contingency and there has to be flexibility in the application of rules. Yet without clear rules and enforcement mechanisms, our informal and flexible constitution reveals itself as a powerful tool for executive power and centralisation. The Brexit saga has not itself changed the constitution but has demonstrated its inadequacies in the age of modern politics when governments and parties are prepared to push it to its limits and beyond.

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