28th October 2021
Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.
The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.
The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.
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This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.
There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.
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It was not always like this, of course.
In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:
“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.
But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.
And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.
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As this doctrine of parliamentary supremacy took hold, there were voices of alarm.
In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.
In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.
Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.
All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.
This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.
And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.
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So how did we end up like this?
Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?
Mount’s review provides an interesting explanation.
The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.
Here Mount’s review starts with this wonderful anecdote:
“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”
Mount then explains why we did not take the liberal constitutionalist course we imposed on others:
“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]
“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’
“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.
“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.
“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”
(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)
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In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.
The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.
Translating finance bills in to acts of parliament is the thing.
And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.
Politicians and parties simply want the keys to this efficient fiscal-legal-political state.
And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.
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But.
What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.
For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.
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What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.
And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?
This is a difficult question.
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As usual, a very good post. And the question is pertinent, but perhaps the answer lies in another question: how do states with different constitutional arrangements manage?
. With the monetary system that the UK operates with now and has done since 1971, a sovereign fiat currency system, taxation does not provide the government with any revenue nor does it need to. This pillar for executive power is now nothing more than window dressing for what governments want to do. Taxation, in principle, is now more about redistribution, not revenue acquisition. Whether it is used for that purpose is another matter. This government, irrespective of what it says, does not seem to be interested in redistribution. The reasons Sunak has provided for his recent tax rises are spurious. He had no sound reasons for his tax rises at all.
I don’t think that is quite an accurate representation of the role of taxation. It is there to enable the government to show that it is repaying debt and restricting the amount of money it creates, which in turn helps prevent the inflationary effects of “free” money. It is true that actually money is created by debt, and that the bulk of government debt is held by the Bank of England, and so in theory could just be ignored and not repaid – but it is important to keep the illusion that debt is controlled, repayable and limited.
None of which in anyway negates the point that governments are powerful because they control the Treasury, even if the fiscal control is of little real economic importance.
Your argument is that it is only important to keep this illusion because the government has decided to show that it is following the neoliberal line that they themselves promote? This narrative is beneficial for the rich but no one else, and, besides, it is false in every respect. You may be right that this is what they are doing, i.e., engaged in deception (which is not a surprise); but this is very different from the actual functions that taxation perform of which I mentioned only one.
Fiscal powers are of greater importance than monetary powers. For a number of reasons.
I’ve not read the book either , but it seems to me that the supremacy of parliament in England (and then Great Britain and the UK) is founded on the requirement of clause 12 of Magna Carta – which, notwithstanding the history of that document, has become a foundational principle of the British constitution – that taxes may not be imposed “except by the common counsel of our kingdom” as expressed through parliament. As the Americans might say, no taxation without representation. Or indeed not without a vote by our duly elected representatives.
The attempt to impose ship money more widely without the consent of Parliament was one of the principal grievances in the run up to the Civil War.
As I understand it, Bonham’s Case (1610) has more salience today in the US, where it supports the principles of judicial review and supremacy of the constitution, invented or at least established by the US Supreme Court while it was barely a teenager, in Marbury v Madison (1803) – that “a law repugnant to the constitution is void”.
Can the UK constitution be reformed? A “big bang” may be difficult, but it mutates and shifts all the time. That flexibility is often claimed as one of its benefits.
The UK, Israel, and New Zealand are the only three countries that don’t have a codified constitution.
While you have expressed your opposition to this in the UK in the past, do events such as you describe above make you reconsider?
At the time of the partition of Ireland in the early 1920s, the parliaments of northern and southern Ireland were to be elected by STV. This is still the case in the Republic. In Northern Ireland, STV was used in the first two parliaments, but then changed to FPTP to ensure that the unionist majority was sufficiently large. (The present Assembly uses STV.)
If federal arrangements and STV were good enough to be used in parts of the Empire, and in Germany, why can’t they be used in the UK? Are we looking at double-think?
Codified constitutions can be illiberal or liberal. My opposition is not to codification per se, but to the notion that codification is by itself a liberal panacea. Codified constitutions can be very illiberal things indeed.
I think we all understand that codified constitutions can be illiberal. The point is that at least, if written, the public at large can access them. This contrasts with the nonsense we have witnessed recently – the Supreme Court had to rule on ‘who’ had the right to serve article 50, whether prorogation was ‘legal’ or not – and I have not mentioned Henry VIII (or whatever) clauses, the numerous conventions very few of us know about, never mind understand (which I think is also the case for those in power who abuse them). The historian Linda Colley makes a good case for written constitutions (the Gun the ship & the Pen). What I found ‘moving’ were peoples’ ability to point to their written constitutions in the face of blatant abuses. And do I wonder, where do British people turn to when in need? Their MPs? Statutes? The media?
One of the reasons for ‘leaving’ written constitutions behind post Empire was to make sure that the British Empire would survive in one form or another. All one needs to do is check who were the ‘writers’ of the constitutions in question.
Boris may be king of all he surveys but I think he will soon suffer the Canute problem – the real world will not dance to his tune. Yes I know Canute knew his limits, not sure if Boris does.
I thought the budget was a muddle of Micawberish proportions. The difficulty is that we have moved on from being a well connected middle of the road state into something approximating to one’s Dad dancing after his divorce – before the bills roll in.
The ‘efficiency’ of our fiscal-legal-political structure did mean we could live beyond our means and keep up appearances. Brexit and Covid may leave us a bit more exposed. I fear Boris may find not so many big sources of cash or employment will be available to him. A good dose of inflation may help a bit – but. A few dark clouds on the horizon, Mr Trump is getting ready for Act II, energy costs and inflation are going up and the money has moved East and Science is not coming up with any monetisable miracles. Even Rishi reckons growth may fall come 2023. If I were Boris I would be thinking of a nice little election before too long. Can’t tax property and the oldies until then. As for a constitution – forget it.
Boris doesn’t need access to sources other than the Treasury who can supply to him all that he either wants or needs. The UK operates a sovereign fiat currency system, thus, has access to all the monetary funds it requires. There is, therefore, no sense in saying that the UK may have trouble living beyond its means. Its means, in this sense, are unlimited.
A great post.
Mount has always been worth attending to on constitutional issues.
He concluding paragraph of the review is particularly good “……But Hoppit does not dodge the unhappy underlying condition of this unbalanced collection of kingdoms, in which old resentments fester on the periphery and the English nationalist core, according to the polls, would willingly be shot of the Celts. It is unrealistic in the extreme to expect a sudden flowering of federal spirit any time soon, or to expect Hoppit’s excellent essay to prompt serious attention to the architecture of the British constitution. The actual break-up of the UK may well be staved off for the foreseeable future by makeshift measures. The best that can probably be hoped for is that power in England – real financial power – is gradually prised from the clenched fist of the central state and securely lodged in local and regional authorities, as it has been in Scotland and Wales. And that in Europe, the next British government – or even this one – inches towards acceptance of shared norms and agreed methods of settling disputes. In other words, that the UK – or just England – grows up and moves on from the infantile egotism that is emptying the supermarket shelves and condemning the soft fruit to rot on the plant.”
The best that can probably be hoped for. Time to plan for the worst.
“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.”
“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”
-I think it is worth taking a more nuanced view than this first quote suggests. We should divide the relevant history into three phases. 1) Pre-1688 tyrannical taxation, 2) Post-1688 power with liberal checks 3) at some point in the late 19th or early 20th century the combination or mass democracy, mass communication and more professional political parties has created a confused instutional set up.
-The second quote above sums up well what David Howarth and A.H. Birch terms the ‘Whitehall vision’ of the UK Democracy.
-The novel inputs of the third phase have created an arguable new legitimacy for a strong executive. They derive their power “democratically” from the people in general elections. This seems intuitively attractive but from a liberal perspective is just as much of a threat as the doctrine of divine rights of kings was in Stuart times.
-The Narrow Corridor by Acemoglu and Robinson is an excellent book on these topics from an intuitionalist perspective.
Thank you for this especially informative comment
As always, a fascinating question!
I’d suggest that there may be one more external factor which – since the second world war – has entered the constitutional picture to limit how far governments, including ones with the UK’s successful “Crown-in-Parliament” model, can actually go in exercising unfettered power.
And that new factor is international law, as usually policed (though not very effectively so far) by international organisations. In the case of the UK, the most far-reaching example would be the European Convention on Human Rights and all that it stands for.
It’s one of the oldest political theory questions in the book: when democracy and fundamental human rights clash, which is to take precedence? Do the people always decide, even when they choose to do terrible things to a minority, or can the people’s will be set aside in such a case?
I would suggest that, after the horrors of “democratic” Nazi rule and the Holocaust it led to, a generation of post-war political leaders in effect tried to decide that question – in favour of a few basic human rights.
They understood – with a grim clarity only possible at that moment in history, in turn driving a very rare consensus – that even a constitutional democracy could “go wrong”, and that there needed to be an ultimate brake on what governments could do, a kind of mutual “safety net” to stop any one of them spiralling down into tyranny.
This brake should only apply to a very small and important set of circumstances: a basic set of mutually-agreed rights. And it had to be exercised mutually too – by a club of countries agreeing to monitor (and indeed police) each other over their respect for the rights they had jointly agreed. An external brake, in other words, that each of them agreed to accept.
The Convention was conceived by those war-battered leaders, most notably Churchill, as exactly that “safety net”. And they understood that, by extending rights to everyone – including unpopular sub-groups such as prisoners and migrants – they were in effect opting to protect a minority against the wishes of a rampaging majority.
If the Nazi death camps – or their modern equivalents – were to be banished forever, governments had to be stopped from doing such terrible things, even when their peoples willed it through democratic elections!
Human rights over democracy, in other words. Or arguably a kind of deeper “generational democracy” in which the peoples who lived through the ravages of war – or rather the governments they elected – decided to pass on, via the Convention and its mechanisms, a set of core values to help steer later generations.
75 years on, the Convention is still attempting to keep the lessons of that war alive – though, as we know all too well, it faces increasing headwinds. Not least in the UK.
Little wonder that the current Justice Secretary is reportedly considering watering down that external restriction, by giving UK courts and parliament the power to diverge from the Convention.
Returning to your question, it seems unlikely that the UK Constitution can be reformed in the way you suggest – but we could start by at least trying to hold on to one of the few external checks that still exists.
In “the age of Boris Johnson and Dominic Cummings”, to use your phrase, the Convention’s “deeper wisdom” – and the eyes of other nations upon the UK – are needed more than ever.
Having just sat through Rishi Sunak’s budget, I did smile to hear Mount describe the 7% income tax used to fund the Napoleonic wars as “monstrous”.
And in two hundred years, at this rate, your descendant will smile at your comment here…
Excellent reading, as usual.
But might you revisit the view that the efficiency you refer to ‘makes perfect sense’ from a fiscal perspective ?
Because there’s a lot of evidence that such ‘efficiency’ leads to a colossal waste of money. Anthony King and Ivor Crewe examine in ‘The blunders of our governments’ many cases where the efficiency of the Westminster system has in fact caused billions of pounds to be wasted.
How can this be ? Because in Westminster, the winner takes all voting system leads to one party rule dominated by a small clique of advisers, the culture of secrecy constrains public scrutiny and the weak parliamentary system prevents any serious effort to hold ministers to account. A few exceptions aside, the press is complicit. In some cases, the legal system is the last line of defence. But weakening, as the Good law project’s battles reveal.
So ministers can push through poorly conceived schemes which are driven by political considerations. The ‘efficiency’ of decisive action, quick decisions, and funnelling tax revenue is trumpeted. The minister moving on after a year or so is not. And the waste revealed years down the line is hardly mentioned.
Money can be wasted in every system, of course. But King and Crewe were struck by how much the Westminster system in the UK, more than in countries with other traditions, is prone to this problem. A problem directly linked to the very efficiency that is so admired.