The UK’s constitution is not working

The writer is an FT contributing editor

Despite all the political excitement and drama of the past five years, the UK has not so far had a constitutional crisis. Every fundamental tension between the elements of the British state has somehow been resolved rather than hardened into a contradiction.

But we should not congratulate ourselves, for Brexit and now the response to the Covid-19 pandemic have revealed many structural weaknesses of the British state. There may not (yet) have been a crisis but the constitution of the country is in a damaged and precarious condition.

Three main constitutional crises have been averted. The first was when the government sought to make the Article 50 notification without parliamentary approval, but the Supreme Court insisted otherwise.

The second was when the government then sought to close down parliament for five weeks without any stated reason, but the Supreme Court again said no.

And the third was when the government sought to take the UK out of the EU without a deal, but parliament legislated to ensure this could not happen.

Each time either the judiciary or the legislature prevented over-reach by the executive. The current controversy about the government seeking the power to break the law may be resolved in the same way: either the proposals are withdrawn or defeated during their parliamentary passage, or — if they are enacted — they are curtailed or even quashed by the courts. Another crisis may be averted.

But the constitution is not healthy, for against these high-level examples of the constitution working, there are many cases every day where the institutions of the state are failing properly to perform their respective functions, and check and balance other institutions.

Parliament, for example, has been unable effectively to scrutinise the prolific and confusing law- and rulemaking of the government over the coronavirus crisis. Decrees are issued at short notice, sometimes just hours before they take effect. This month’s “rule of six” provision was published just half an hour before it had legal effect.

Such decrees impose onerous legal obligations and create broad criminal offences, often going to the heart of social and business life. Yet parliament is often not even informed in advance — and there appears to be nothing members of parliament can do about this. The government has wide unchecked legal powers and is using them to the full.

The courts are similarly indifferent to policing the use of the government’s rule by decree. Access to the courts to challenge government rules and decisions is constantly being limited. But even those that do get to court do not get very far. The courts are generally deferrent to the executive, especially during an emergency.

In Dolan vs Department of Health, a challenge to the coronavirus regulations, the high court held that it would be “academic” to review onerous provisions because the government had replaced those measures with others. As long as the government can keep switching laws around, the judges will let them get on with it, leaving those adversely affected with no remedy.

And when there is no proper accountability and transparency, government policymaking becomes sloppy. From the summer’s A-level fiasco and the botched procurement of health equipment, to the current failure of the testing regime and confusion about the trade implications of Brexit, the general condition of British public policymaking is appalling. 

Ministers and their advisers want more unchecked power but the executive is not competent at using the powers that it has. The ongoing assault on an impartial civil service and diplomatic corps — like its loud complaints about pesky “activist lawyers” who act in judicial review challenges to government decisions — is not based on the superior performance of the executive function of the British state.

The ultimate cause of this, of course, is the UK’s weak constitutional arrangements. There is no codified constitution, so much rests on convention and self-restraint. In extreme cases — as over prorogation — parliament or the Supreme Court can put a stop to the arrogance of government, but such heady events make little difference to the overall activity of the executive.

The UK constitution is drifting into the arena of the unwell, even without the desire of the prime minister’s chief adviser Dominic Cummings and others to further remove or limit checks and balances. The problem, however, is that few politicians and voters care about constitutional issues; some immediate policy matter is always more important.

So the executive will continue to both accumulate power and resist scrutiny. Brexit and coronavirus have together shown up many of the structural problems of government. And, until effective checks and balances are returned to the British constitution, the standard of policymaking will deteriorate. The state is in a bad state, and it is unlikely to improve.

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