Audit 2017: How democratic is the basic constitutional law of the UK?

The foundations of any liberal democracy lie with its constitutional arrangements, which in the UK are famously diverse and uncodified, with no single written ‘constitution’ document.  As part of our 2017 Audit of UK Democracy, Michael Gordon looks at how to assess the democratic basis of constitutional law, and how well recent experience suggests that the UK has been performing.

supreme court brexit

Demonstrators outside the Supreme Court during the Miller case, December 2016. Photo: Garry Knight. Public domain

What would a democratic basic constitutional law look like?

A democratic basic constitutional law should meet a number of formal and substantive requirements.

  • Formal democratic requirements
  • The rules of the constitution need to be – so far as possible – clear, accessible to, and understandable for citizens and officials.
  • Some generally accepted processes (both legal and political) are needed through which inevitable ambiguities or disputes about the rules can be settled in inclusive and transparent ways.
  • There must be a genuine possibility of the rules changing to enhance the democratic quality of the constitutional system. Processes for constitutional change should be transparent and underpinned by the democratic agreement of citizens.
  • Substantive democratic requirements
  • The actors allocated governmental power must be democratically chosen and removable, with effective processes of accountability for the exercise of constitutional authority (both political – to ensure responsibility for official action; and legal – to ensure the legality of official action).
  • A variety of institutions will exercise a range of overlapping functions – including those of a legislative, executive and judicial nature. But institutions with democratic legitimacy must be allocated ultimate responsibility for crucial decisions.
  • Opportunities for citizen engagement with and influence over those in power must exist. A range of channels should be established. And civil liberties which allow people to engage in individual and collective political activity must be ensured.
  • There must be recognition and accommodation of different democratic desires in different parts of the state, with devolution or decentralisation of power so that decisions can be taken at the most appropriate levels of government.

Recent developments

The basic constitutional law of the UK is in the midst of a period of fundamental change.  Perhaps this has been the case for over 20 years, since the election of the New Labour government in May 1997, which began an unprecedented era of constitutional reform. But the electorate’s decision to exit the European Union at the 2016 national referendum, rejecting the pro-Remain position adopted by the largest groups inside the UK’s three main political parties, will see a further transformation of constitutional law in the UK.

For 43 years the UK constitution adapted to accommodate membership of the EU, and the obligations which it imposes.  Now Brexit will see domestic constitutional law reshaped to reverse many of these changes.  The supremacy of EU law over domestic law will be removed by the ‘Repeal Bill’. And we will very likely see the return of law-making competence from the European Union institutions to the UK Parliament, and to the devolved legislatures in Scotland, Northern Ireland and Wales.  Depending on the nature of any future relationship agreed with the EU, and the obligations that may flow from a possible free trade agreement, this may include the reacquisition of authority in areas including agriculture, fisheries, consumer rights, workers rights, product standards, competition, public procurement, immigration and trade.

This will be a significant change to the constitutional authority of the domestic institutions, which had previously opted to combine their decision-making power with that of other member states in a process of EU-wide cooperative law-making.  But it will also represent a major challenge for the UK constitution, as the institutions of government attempt to deal with this unprecedented shift, across multiple strands of activity. There is the legislative challenge of preparing the UK for the withdrawal of EU law; the diplomatic challenge of negotiating exit and potentially a new relationship; the policy challenge of making effective decisions in areas of reacquired competence; and the scrutiny challenge for Parliament and the courts in ensuring that all of this is done in a legitimate manner.

Yet Brexit is just one of a number of high profile constitutional developments in recent years with potentially far-reaching implications.  We have seen an independence referendum in Scotland in 2014, a national general election in 2015, the EU referendum in 2016, and a further general election in 2017.  The UK constitution is facilitating repeated high-level democratic exercises – some easily anticipated, like the 2015 election, others less so, like Theresa May’s snap 2017 election. In different ways, the two referendums might perhaps be viewed as inevitable, given the political environments cultivated by successive UK and Scottish governments, both from positions of weakness and strength.

This political turmoil has also left the UK constitution exposed to very rapid change.  While the 2014 independence referendum did not lead to the departure of Scotland from the UK, it did prompt further far-reaching devolution of powers. It also raised expectations in other devolved governments, leading to further devolution for Northern Ireland and Wales.  The 2015 election created the conditions for the 2016 referendum, which led to the end of one government, the formation of another, and in less than a year a further general election.  The major changes that will flow from Brexit have also therefore been complicated further by the hung Parliament which resulted from the 2017 election, and the uncertain authority of Theresa May as Prime Minister.

We might therefore have reached (or passed) the point of constitutional fatigue – with radical change occurring at an intense pace both to the rules of the constitution, and to the position and authority of those allocated constitutional powers. And while fatigue may be setting in, the pace of change is only likely to accelerate, with new constitutional challenges resulting from the reshaping of the UK which is underway.  For example, Brexit has great potential to trigger further change to the union, as we calls are made for a second independence referendum in Scotland, or a border poll on the reunification of Northern Ireland with the Republic. The confidence and supply deal negotiated by the Conservatives with the DUP to sustain the minority Tory government in office has the potential to destabilise efforts to restore devolved government in Northern Ireland, with a return to direct rule from Westminster  for a considerable period a serious prospect. Given the instability of the present government, a further election before 2020 also looks more likely than not.

While the UK’s constitutional politics have reached a level of almost peak unpredictability, there has been a less obvious, gradual shift in the position of the courts.  The expansion of judicial powers made necessary by EU membership were supplemented considerably under the Human Rights Act 1998 – which gave the judiciary new powers and duties to assess the compatibility of official acts with human rights. In the twenty first century this has been accompanied by the development of a striking constitutional self-confidence amongst judges. The most senior judges were relocated from the archaic Appellate Committee of the House of Lords to a new Supreme Court, by the Constitutional Reform Act 2005. On the face of it, this did little to change the pre-existing substantive independence of the judges. But this significant  ‘rebranding’ exercise has profoundly reinforced the judges’ willingness to engage with constitutional questions in bolder ways.

The Supreme Court has recently begun exploring common law constitutional frameworks in novel ways (HS2), challenging the otherwise clear language of statutory provisions (Evans), and gesturing at the possibility of exceptional limitations on the UK Parliament’s sovereign law-making power (Moohan).  The peak of the judges’ new prominence was the Miller case, on the constitutional requirements for commencing withdrawal from the EU. There was a furious academic and public debate about how this could be done, as these legal issues were considered in the High Courts of England and Wales, and Northern Ireland, before progressing to the Supreme Court.  By a majority of eight Justices to three, the Supreme Court held that a new Act of Parliament was required to authorise the Prime Minister giving notice of the UK’s intention to leave the European Union. This was an affirmation of the decision of the High Court of England and Wales, albeit on somewhat different grounds, based ultimately on the premise that Brexit would cause a change to the legal sources of the constitution of such magnitude that it could not be commenced by the government using its royal prerogative powers to conduct international affairs.  The majority decision by the Court might be criticised as being high on constitutional principle, but lacking in rigorous interpretation of the relevant statute establishing the status of EU law within the UK, or sensitivity to the broader political framework allocating different institutional responsibilities. Yet even aside from the major results of these cases, the shift in judicial power is both a complex and important phenomenon.  It raises fundamental questions about the changing role of non-democratic actors in the UK’s constitutional system, especially within a period of extraordinary realignment.

Strengths, Weaknesses, Opportunities, Threats (SWOT) analysis

Current strengthsCurrent weaknesses
The era of reform to the UK’s constitutional law started by New Labour in 1997 has had generally positive results. Those changes have either been extended, e.g. the further devolution of powers to democratic institutions in Scotland, Wales and Northern Ireland, or proved resilient to retrenchment, e.g. the Freedom of Information Act 2000.Despite the era of reform, non-democratic institutions remain, and wield considerable power. The House of Lords is only partially reformed and growing in size, and is increasingly relied on as a check on government and the House of Commons. Public debate about the monarchy is absent, even though the Queen has been ever more insulated from key political decisions (such as that relating to the formation of a government in a hung Parliament by the codification of rules in the Cabinet Manual.
Frequent opportunities exist for the electorate to freely express their will, both in parliamentary elections and referendums, and for citizens to shape the policy agenda, e.g. via the parliamentary petitions website.The rapid extension of devolution has also posed challenges - notably the pace of change in Scotland; difficulties achieving consensus in Wales over the new reserved powers Act of 2017; recent problems in establishing a government in Northern Ireland; and some inconsistencies in the Combined Authority deals in England. There has been a lack of transparency or citizen engagement in the process. Moreover, establishing English Votes for English Laws in the Westminster Parliament may have consequences for the equality of MPs, and for the wider UK union across countries.
Only limited critical or considered debate has taken place about the increasing prominence of the courts, especially given longstanding concerns about the total lack of ethnic diversity and dramatic under-representation of women among the senior judiciary. Also important are the increasing powers over moral-political issues that judges now exercise as a result of the Human Rights Act 1998, without being subject themselves to regular accountability processes.

Future opportunitiesFuture threats
Further strengthening and broadening of devolution across the UK may be achievable. Continuing decentralisation of aspects of decision making can create and reinforce new sites of democratic activity to challenge and compete with the Westminster institutions. (However, there are also real concerns about the democratic engagement of citizens in the process of deciding what to devolve).The scale of the Brexit process will test the capacity of the UK’s political institutions to the limit. There will be a strong need to ensure the Westminster government is held to account for the array of decisions it will take as it becomes paramount. The all-encompassing nature of withdrawal from the EU will leave little time for any other democratic reform. Yet it may also represent a complacency about the superiority of UK’s exceptional constitution that should be challenged and dispelled.
The inadequacy of the first-past-the-post voting system for elections to the Commons is increasingly clear. It has difficulties in accommodating an increasingly plural approach to politics, and recently has also failed to achieve its supposed purpose of delivering decisive election results. The result of the 2017 election may present a further opportunity for critics to press the crucial case for reform to the voting system, to establish a system of proportional representation.The result of the Brexit referendum, and its potentially damaging consequences, may have a chilling effect on the use of direct democratic decision-making, or engagement with other kinds of democratic innovation in future. If Brexit has poor consequences, the lesson drawn may be to stick to conventional representative government only. Rather than reverting to such pure representative democratic systems, ways of deepening the electorate’s involvement in democratic methods of democratic reform should be further explored, such as via a constitutional convention or citizens' assemblies.
The lack of social diversity amongst judges has gone beyond the point of being indefensible. However, there will be opportunities to begin to address this when half of the Justices of the Supreme Court are due to be replaced by 2018. The recent appointment of a new Lord Chief Justice offered little hope in this regard, although Lady Hale is now the President of the Supreme Court. Formal quotas may therefore be required to alter substantially the dynamics of judicial appointments.Any debate about codification of the UK constitution, or establishing a formal legal federal order in the aftermath of Brexit is likely to be a distraction. Its democratic salience is also disputable. A legalised constitution is not necessarily democratically superior to an (‘unwritten’) political constitution, especially when there is much to seek to reform, rather than to entrench, in the UK’s present arrangements.

 

Brexit

Brexit will dominate constitutional discussions during (and well beyond) the process of exiting the EU, running to 29 March 2019.  Parliament needs to ensure that democratic scrutiny and accountability is as effective as possible during this period of unprecedented change.  The European Union (Withdrawal) Bill (albeit necessarily) delegates a great deal of subordinate law-making authority to the government. But this delegation needs to be subject to strict and appropriate limits on the use of the powers. Thorough and detailed parliamentary scrutiny will be needed to ensure their exercise does not instigate major changes in legal regulation for which a democratic mandate has not been obtained.

As a matter of political principle and constitutional convention, if not by law, the interactions between the UK institutions and the devolved legislatures and governments will also be key. The consent of the Scottish Parliament, Northern Ireland Assembly, and National Assembly for Wales will be required to the legislative changes to the devolution statutes.  The 2016 referendum result may provide the government with a mandate to deliver the UK’s exit from the EU. But if the process and its results are to be regarded as legitimate, then the nature of that exit, and the means by which it is achieved, will have to be negotiated in a constructive, transparent way in a much more complex democratic landscape.

The nature, extent and process of constitutional change

 Away from the immediate challenge of Brexit, the impact of the dramatic programme of constitutional reform commenced by New Labour in 1997, but continued by the 2010-2015 coalition government, and the Cameron government after the 2015 election, must be assessed.  The pace and scale of change has been rapid, and hard to keep up with – this is not an argument against considerable change, for much was needed in 1997, and much still is now, but we must also try to take stock to establish future priorities.

Where is the UK constitution now?  This is not a straightforward question to answer, given the constitution is still changing, and further change is to come.  Nevertheless, there remain particularly important questions to consider concerning the manner in which we have changed the law of the constitution.  New Labour had no overarching vision to structure the constitutional reform programme it carried out, and this may explain why a systematic approach has subsequently proved elusive. The constitution that New Labour produced is one that we think about explicitly, and are prepared to change in a proactive way. But if the goal of constitutional ‘modernisation’ simply becomes an end in itself, rather than directed to achieving other values, we can end up (and perhaps, to some extent, have ended up) lacking the ability to work out exactly what has been successful, and where further efforts must be targeted.

A structured, value-oriented approach is important to constitutional reform – that may be the key lesson to emerge from the changes of the last two decades.  Whatever the pace and possibilities for change over the coming years, there is a need to think holistically about constitutional reform, and at least to attempt to sketch some kind of coherent vision of the overall constitution we ultimately want for the UK.  In so doing, we can try to develop a clearer sense of how we can make the constitutional law of the UK more democratic, both in substance and procedurally.

A vision for a democratic UK constitution?

The UK constitution is at a crossroads – partially reformed, but with further change imminent.  The process of reform – through the abundance of new statute law, and written constitutional documents – has made the constitution more formalised. Yet the UK’s arrangements are still fluid, and stand far apart from a traditional codified constitution. For some this may be a democratic deficiency.   As the UK constitution has become more overtly ‘constitutionalised’, calls have increased for a codified, written constitution to be established.  This could more clearly define, and also limit, the powers of Parliament and the government.  Such a model could more firmly federalise the powers of the devolved institutions in Scotland, Wales and Northern Ireland.  The increased accessibility of such a constitution may appear attractive.  Yet a decisive shift from a political to a legalised constitution would also have many costs. It would likely entrench inadequate existing arrangements, create potential barriers to further reform, along with accomplishing the (further and greater) empowerment of the judiciary, who would be tasked with enforcing its rules in increasingly contentious political circumstances.

The crucial (and enduring) idea of parliamentary sovereignty at the heart of the UK constitution can (rightly) attract criticism if it is used as a rhetorical device signalling the centrality of Westminster politics, or the international superiority of the UK. Yet it is a fundamentally democratic foundational principle of UK constitutional law, in allocating ultimate law-making power to the elected and accountable actors in the UK’s system of government. Rather than displacing parliamentary sovereignty by pursuing the distraction of codifying the UK constitution, a better vision for democratic constitutional change involves exploiting that unlimited legislative authority to complete substantive institutional reform: to the House of Lords, the voting system, the monarchy and the royal prerogative powers, the funding and election spending of political parties, voter registration and age limits, the ownership of the media, among others.

Such an orientation would be accompanied by consideration of the process and methodology of constitutional reform, and its democratic components. How can we use democratic instruments more effectively and constructively, and deepen levels of citizen engagement and deliberation?  Can we regularise and enhance the use of direct democracy, which is at present irregular and under-informed, so therefore potentially erratic?  Being aware of the limits of the constitutional means recognising that effective citizen engagement is a function of political culture and education, as much as it is a product of legal institutional arrangements.

Yet the engagement of the people in reshaping the basic constitutional law of the UK is something of intrinsic democratic importance, while also crucial in the present age of political distrust and citizen alienation. Further democratising the constitutional law of the UK – both in substance and in terms of the process of reform – is no doubt a goal that poses great difficulties, both in general and especially in the age of Brexit. Yet greater difficulties would be caused by allowing this era of democratic change to stall at a point when there is much more to be done.

This post does not represent the views of the LSE.

Michael Gordon is a Senior Lecturer in Constitutional Law at the University of Liverpool.

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