18th March 2021
Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.
So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights?
This is not a trivial or academic question.
The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.
For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.
And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.
In constitutional theory, the next check – once legislation is proposed – is the house of commons.
But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.
And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.
Next there is the house of lords, where (fortunately) the government does not have an in-built majority.
And the house of lords can vote things down and pass amendments.
When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.
This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.
There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.
And that power is that: to delay.
A determined government, with the support of the house of commons, will get its legislative way in the end.
A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.
There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.
But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.
And then we come to the courts.
Here we have another problem.
Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.
The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.
The judgments of the European court of human rights are not binding.
The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.
‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.
Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.
(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)
Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.
Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.
That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.
And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.
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