Power without a right

The Supreme Court of the United Kingdom Photo by David Iliff under licence from Creative Commons
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A constitution based on unwritten rules and gentlemen’s agreements is a poor defence against shameless and determined rule-breakers.

Listening to interminable lectures on UK constitutional law many years ago, I little thought it would be at the forefront of a political power struggle some 40 years later. Yet such is the battleground for the current clash between Boris Johnson’s government in the blue corner, and, in the red corner, the opposition, the Supreme Court and the House of Lords constitution committee.

All those years ago our lecturers would have us believe that our unwritten (or, more accurately, uncodified) constitution was not only unique, but also a valuable tool enabling our democracy to adapt far more quickly and efficiently than those of other countries. Constitutions that were overly detailed – or so ran the argument – stultified change and progress.

Yet if Brexit has revealed one thing about our constitution, it is that its lack of detailed codification and entrenched protection of our rights has enabled those who despise ‘gentlemen’s rules’ and refuse to abide by unwritten conventions to ride roughshod over the wishes of the majority. In On Liberty, John Stuart Mill warned of the “tyranny of the majority”, but the British constitution provides an ideal vehicle for an unscrupulous government to impose what might be called the ‘tyranny of the minority’. And as the great Anglo-American radical Tom Paine wrote in 1791, “Government without a constitution is a power without a right”.

Take, for example, the current push by a small but vociferous minority towards a ‘no deal’ conclusion to our relationship with the EU at the end of the transition period. Few if any supporters of Brexit dared mention such an outcome before the 2016 referendum and even after the last general election our prime minister was boasting of his “oven-ready deal”. Yet now the UK faces the most precarious of futures as a result of his having abandoned his promises – although nobody voted for leaving with no deal.

How did this come about? How could it be that our constitution provided no safeguards for the views of the majority to be protected?

In the debates before the passing of the Referendum Act 2015, much was made of the flexibility that an ‘advisory only’ referendum would provide, as opposed to one that was binding. Indeed, it was assurances about this advisory nature of the vote that persuaded Alex Salmond, then the Commons leader of the SNP, to withdraw an amendment which would have taken full account of a vote by Scotland that differed from that of the rest of the UK.

The rest is history. David Cameron proceeded to nullify those assurances with his undertaking to “respect the outcome” of the referendum. Yet how that outcome was to be interpreted and enacted was never specified, nor was there any requirement for a minimum threshold of votes to be exceeded before the status quo of EU membership could be overturned.

Hence, Brexit supporters (and even the BBC) on the night of the referendum felt able to greet the bare majority of those voting for leaving as “the will of the people”, though nowhere did it state in the legislation that the vote was to be assessed on a first-past-the-post basis. In fact, given the relative populations of Scotland and the rest of the UK, doing so was incompatible with the promise given to Scotland that a different vote there would be taken fully into account.

A written constitution would have required a minimum proportion of the electorate to vote in favour of enabling a change to the status quo to take place and for the individual views of the four countries that make up the UK to be taken into account. The lack of enforceable, entrenched rules gave the Leave campaign free reign to push for a final outcome that they had never disclosed to the electorate. Furthermore, it allowed them to breach electoral and data protection law in the knowledge that conviction for such breaches might (and indeed did) end in fines, but could not invalidate the result.

Our lack of a codified constitution relies upon politicians keeping their promises and abiding by rules laid down for conduct in public life. But when, as now, we have a government with a large majority which cares nothing for such promises and rules, we are placed in a parlous position.

There are now myriad examples of this government’s disrespect for the rule of law and for basic standards of behaviour in public office. Some of the most notable include Boris Johnson’s protection of Dominic Cummings (despite clear evidence of his serious breach of laws designed to protect the lives of others) and the prime minister’s expression of support for the home secretary even before the official investigation of her alleged bullying of civil servants had begun.

Then, of course, there is Johnson’s prolonged failure to authorise release of the Russia report. Had the ‘unwritten rules’ been observed, this would have been released before the last general election, as the then chair of the intelligence committee Dominic Grieve confirmed at the time.

Our ad hoc system provides few means by which aggrieved citizens or even parliament itself may enforce the rules that are meant to protect us from an over-reaching executive. It was not parliament, but a determined private citizen, Gina Miller, who stopped the government’s prorogation of parliament. The Supreme Court’s judgment that this had been illegal led not to contrition, but to threats to ‘reform’ the Supreme Court and to restrict access by private citizens to the courts to challenge the government.

The lack of entrenched rights within a written constitution and the doctrine of parliamentary sovereignty mean there are literally no individual rights which a government with a large majority cannot remove if it is so inclined. Hence, we recently watched Conservative MPs voting to divest parliament of powers which, under a codified constitution, would be impossible to give away.

Worse is yet to come, with the government’s widespread adoption of so-called ‘Henry VIII’ powers in its present legislative programme. As the House of Lords constitution committee points out in its report of 9 June, such powers may be used to create legislation across a wide range of policy areas, from trade and agriculture to immigration and healthcare, and without this being subjected to the usual parliamentary scrutiny. The committee advises that such powers should not be used to enact legislation which would normally be fully discussed by parliament, such as the creation of new criminal offences, the creation of public bodies or for issues not connected with Brexit.

Yet worse is the power that ministers will have not only to direct which UK courts may re-interpret EU law but what their interpretation should be. This is legislation by ministerial edict, not by the legislature.

What was the government’s reaction to the advice of this august committee? Simply to ignore it. While – as the committee notes – the May administration paid some regard to the advice it was given about the dangers of executive over-reach, Johnson’s government is at best oblivious to the dangers into which this may lead us.

So there we have it. In the blue corner, a government described by former Conservative minister Chris Patten as having been taken over by “Maoists”, which is carrying out an extensive power grab under cover of “getting Brexit done”. And, fighting a rear-guard action in the red corner, an alliance characterised by Johnson as the “Islington elite” and by his allies in the right-wing press as “enemies of the people”, comprising the opposition, the Supreme Court and the House of Lords constitution committee.

I wonder what my long-dead constitutional law lecturers would have made of that.