14th September 2020
For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.
By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.
That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.
The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.
But that resignation has made no difference: the process has continued anyway.
A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.
Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.
So much for the civil servant gatekeepers.
Now for the politicians.
The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.
The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.
And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.
So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.
These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.
And all have failed.
So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.
And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).
If so, that would be an example of a working constitution.
But for this proposal to have even got to this stage, parts of the constitution have not worked.
The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.
Only at the margins should constitutional tensions be resolved by litigation.
But what happens when the conventions do not work or are flouted?
The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.
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