The Victorians and Edwardians worked out the ground rules of the politics of their day. Our own times require us to be similarly boldby David Allen Green / September 27, 2019 / Leave a comment
A hundred years is a long time in politics. And yet the constitutional and legal framework in which British politics operates has changed little since Victorian and Edwardian times. The regulation of elections is predicated on the constituency model of local campaigns. The relationships between the elements of the state—legislature, executive and judiciary—are still pretty much as Walter Bagehot described and AV Dicey theorised in the late 19th century. If there were a picture album for the constitution of the United Kingdom, it would be made up of black-and-white plates.
But this venerable constitution is at breaking point, and we are only one more foolish or cynical act from Prime Minister Boris Johnson away from a full-on constitutional crisis the outcome of which nobody can predict.
Constitutional law is currently exciting, but constitutional law should not be exciting. A constitution sets out the parameters of political action—which element of state does what, and what happens if there are tensions. It should not need to be litigated often, but in recent months such tensions have become almost routine. Why? Partly because of the mismatch between the UK’s constitutional and legal arrangements and the realities of contemporary political action. We no longer have the appropriate rules to govern the politics of our time.
One case in point is the 2016 Brexit referendum itself, and especially the campaigns for the Leave vote. Another is the recent attempt by the British government to game the constitution by abusing prorogation and precedent, which led to this week’s emphatic and unanimous Supreme Court decision.
First, referendums. They do not sit well in the British constitution and they have rarely been used. There have been only three UK-wide referendums (two on European Economic Community/European Union membership and one on electoral reform). There have also been territorial referendums in Northern Ireland, Scotland, Wales, London and the north east. But we should be glad to have had so few UK-wide ones.
The main problem with a UK-wide referendum is that it creates a mandate which can compete with and undermine parliamentary supremacy. A poison may be injected into the body politic that can only be got rid of if the referendum decision is somehow implemented or else extinguished by a further referendum mandate.…