The constitution of the UK had, until recently, seemed to be a robust old thing. Governments came and went but the primary arrangements of the British state remained in place. The Queen (or King) was sovereign, parliament was supreme, judges judged and ministers decided. One had to go back to the 1680s for any real constitutional excitement, at least in England.
There are two main reasons why, until now, the British constitution has endured.
First, there is little constitutional law. Instead, a great deal of the practical functioning of the UK state depends on convention. There are scores of conventions, from the prime minister being chair of the cabinet and cabinet collective responsibility to the House of Lords not blocking manifesto commitments and judges not participating in political controversies. The ultimate political balance between the UK government and the devolved assemblies also rests on convention.
These rules of practice may be recognised in statutes and in the courts, but they are rules of practice with no legal force. One cannot get an injunction to enforce a convention and nor can one obtain a remedy if the convention is breached.
Second, the little constitutional law that exists is subject to self-restraint.
The royal prerogative gives legal effect to certain decisions by the prime minister, but the expectation is that the power will not be abused, and in turn the UK courts will not intervene. The courts will also not make orders (or “develop” the law) where the issue is essentially political not legal, even if there is an arguable legal case. Parliament has ultimate legislative power but will tend to not legislate so as to constrain the executive or the courts from fulfilling their constitutional roles.
However, such a constitution is robust only in certain climates and with certain types of weather. A change of environment will expose its fragility. What once seemed solid can suddenly look precarious.
This is what has now happened in the UK. The new prime minister Boris Johnson and his principal adviser Dominic Cummings care nothing for the conventions and customs that have hitherto curbed executive power. And the legal powers of the prerogative are there for the taking. It is a startling stance for the executive to adopt, though it can be explained in terms of both parliamentary arithmetic and the legal box in which parliament has placed the executive with Brexit.
The new approach is not, however, entirely novel. Mr Johnson’s predecessor Theresa May also disregarded conventions and sought to rely on the prerogative (and to obtain wide discretionary powers by statute). And the source of the problem lies in the use of a non-binding referendum on Britain’s EU membership in the first place. This conferred a “mandate” for Brexit that is now seen by many as irrevocable. The body politic was injected with a radical and unfamiliar agent, and it is perhaps no surprise that the constitution cannot cope.
Some supporters of the prime minister will be delighted at his strident approach. But wiser heads will realise the dangers. The ability of the UK state to function requires harmony between its executive, legislative and judicial functions. Any tensions need to be resolved before they harden into contradictions. Messrs Johnson and Cummings will be gone one day, but the wreckage may still be there.
Until recently, a fair-minded observer would have said that the prospect of conventions being disregarded and prerogative powers abused was hypothetical. But we now have a parliament shut down by the misuse of the prorogation power, with Downing Street sources boasting that it could be used again. We have seen the convention that the Queen follows her ministers’ advice abused by those who see such a custom as an opportunity for cynicism.
It does not follow from all this, however, that there should be a codified constitution, for codification itself carries illiberal perils as well as liberal hopes.
Rather, every convention that can be abused by the executive now should be placed on a sounder footing, with legislation if necessary. Each prerogative power that can be exploited by the prime minister needs to be made subject to formal requirements such as the approval of parliament. The trust that prime ministers would never misuse their rights and powers has now gone.
The UK constitution now needs to be made Johnson-and-Cummings-proof.
The writer is a contributing editor to the Financial Times
