Hopes that the worst has passed will soon be dashedby Thomas Poole / December 22, 2019 / Leave a comment
They say prediction is a mug’s game. But invoking the spirit of Dickens, who knew better than anybody that this time of year lends itself to reflection on both past and future, I hope I might be forgiven a seasonal spot of divination.
There’s certainly much to mull over when it comes to the constitution, in a febrile state since the Brexit referendum.
In political terms, the election produced clarity, if not harmony. It delivered a solid Commons majority for the Conservatives, something of a rarity in contemporary British politics. And it represented a decisive victory for pro-Brexit forces, routing what remained of the Remainer factions. This most likely resolves at least for the time being the political crisis triggered by Brexit.
Reading the constitutional tea-leaves is trickier. One plausible reading is that the constitutional situation will track the political. A move into somewhat calmer, or at least clearer, political waters should bring with it less troubled constitutional politics.
There are sound reasons supporting this sanguine reading. A British government blessed with a working parliamentary majority comes as close as should be possible in a functioning democracy to plenipotentiary power. The Johnson administration has no need to push the constitutional envelope, for instance by resorting to royal prerogative (non-statutory executive powers). It can get pretty much whatever statutory authority it needs. Besides, the exigencies of delivering Brexit within an incredibly tight timeframe, together with other social and economic reforms, simply won’t leave the time and energy necessary to force constitutional change.
This reading side-steps Conservative commitments to constitutional change—notably in page 48 of the election manifesto—interpreting them as noises off, red meat for the party’s more fervid support. So far, it is true, little has been committed to beyond establishing a “Constitution, Democracy and Rights Commission,” a move that normally means that the matter has been kicked into the long grass.
This all sounds rational. But the chastening experience of so much that sounds rational failing to eventuate in recent times should give us cause to pause. All the more so given that Brexit is supported by some—including the PM’s Chief Special Adviser, Dominic Cummings—precisely because its destabilising effect makes root and branch reform easier to effect.
Especially in this context, there seems no reason why Johnson’s government cannot do both social reform and constitutional reform. The latter can occur as a considered item of a political agenda—as with the Blair government’s programme of “constitutional modernisation.” Or it can occur more as a by-product of social reform—as with the transformation of central/local government relations under Thatcher.
My sense is that the sanguine reading fails ultimately because it misunderstands the character of contemporary right-wing politics, or at least the revolutionary-reactionary variant represented by the Johnson administration. This is a political unit that shows every sign that it does not just want to function. It wants to win. And this means, perhaps above all, inflicting defeat on opponents. Especially those institutions and groups seen to have “betrayed” Britain when it comes to Brexit.
Not only would a pretty forthright platform of constitutional reform be what (some) supporters expect (especially if it is seen to be putting the “liberal elite” back in its box). It would also serve as a useful distraction when it becomes obvious that Brexit takes far longer to deliver than all its supporters have been promised.
Predicting the future may be a mug’s game but, as Douglas Adams said, any game is improved when you can actually keep the score. So what to look out for? The targets, all well known, include the “political” use of judicial review, the Human Rights Act and the UK’s membership of the European Convention on Human Rights. More interesting is the strategy through which these constitutional ambitions are to be pressed. A “normal” government would just legislate. But this government might be more inclined to provoke. It may make use of skirmishes with opponents, including the courts, on favoured grounds as a means of facilitating broader transformations.
I’ll hazard three specific provocations. The first—which I see as highly likely—is to contest the inclusion of the armed forces within the scope of the Human Rights Act, in part as a prelude to a broader assault on that Act. The second—fairly likely—is to issue instructions to courts on how to exercise their judicial review powers. The courts are likely to ignore such instructions. But such a set-back may facilitate larger incursions into the court’s public law jurisdiction. The third—less likely but possible—is to provoke a fight over prerogative (eg by an extravagant use of the prerogative of mercy, used to grant pardons) in an attempt to reassert executive power in its most untrammelled form.
For once, I hope that my instincts, and the corresponding analysis, are wrong. Otherwise we’re in for a prolonged, and fractious, period of constitutional struggle.