19th October 2022
Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.
Imagine that demonic scheme was as follows:-
First: the test of a supposedly non-binding referendum in what was normally a parliamentary system
Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.
Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.
Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.
Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.
Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.
And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.
I may have missed out some of the tests along the way.
We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.
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The constitution has been through a lot in the last ten years – perhaps too much.
Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.
In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.
The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.
But the constitution needs a rest, on any view.
Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.
And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.
The constitution is not going to get a rest anytime soon.
Brace, brace.
Again.
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Just wondering, is the Constitution as exhausted as I am by this rollercoaster of incompetence and insanity?
I so agree. I think between us on this blog and our posts to it we have covered every word of expression of shock, disgust, weariness and despair. As David more or less says make it boring again!
The difficulty for me – and I suspect for many others – is that I can no longer decide what seems ‘reasonable.
May was a grave disappointment as PM – but she now looks like a shining example of political genius.
But only in comparison to what came after.
The constitution, sadly, feels a bit like a traffic sign – there to be ignored by anybody who wishes to.
This blog reminds me that there are sensible and principled people out there – but not, perhaps, where they need to be.
David wrote, “Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.”
Upon hearing of this – and in response – Home Secretary Suella Braverman resigned her post.
Interestingly, in her response to the resignation letter, Prime Minister Liz Truss wrote, “Thank you for your letter. I accept your resignation and respect the decision you have made. It is important that the Ministerial Code is upheld, and that Cabinet confidentiality is respected.” This was reported to have triggered wild panic among MPs of all parties – although Conservatives in particular – since almost all appear to be involved in leaking something to someone and the thought of the Ministerial Code being actually upheld, for real, has left literally dozens of MPs on the verge or collapse.
Thank you David for putting it so very well. It would be nice to have a book of all your blogs.
https://twitter.com/MattCartoonist/status/1582785322462904320/photo/1
Dear DAG,
We’ve been living through “politics as (bad) theatre” and “fiscal finance as farce”, so how about a blog post on “constitutionalism as comedy”?
Your blog gives me hope that our dear Land of UK still has some mileage left in it.
Best wishes
Michael
You didn’t mention them B word once.
With apparently two whips resigning, sacked, reinstated or not and riotous assembly in the house can you survive the trauma?
Just watched the FT’s Brexit video, almost expected to see you in it.
Remember Montesquieu: Parliament rules – Government executes. If Government cannot execute they have to resign collectively. Not a question of whether a Constitution is written or not, but whether the elected representatives of the people are respecting the democratic and Parliamentary rules they are elected to serve for the people. Not the other way around.
Thank you, absolutely nailed it again…I would if I had the time or if I were as good as you, I don’t and I am not,
Thank you
Graeme Land
”First: the test of a supposedly non-binding referendum in what was normally a parliamentary system”
What support is there for the view that our uncodified constitutional arrangements have fared relatively well in that test?
Putting aside whether it was wise to ask Parliament to legislate for a non-binding referendum after the manifesto had promised a binding referendum, what conceivable constitutional arrangement would allow a non-binding referendum to be optionally treated as binding?
That the Supreme Court insisted that there had to be primary legislation, and that there were two general elections where parties committed to respecting vote won majorities before the UK actually did leave.
Parliament legislated for a non-binding referendum. (That is why no supermajority was specified.) Surely respecting the vote entails respecting the nature of the vote?
After yesterday’s shenanigans does the unwritten constitution allow for 650 random drug tests ?
Can P45’s be issued in Parliament or would such actions be unconstitutional ?
If you have ever employed people there comes a certain point when you have to intervene.
The last Home Secretary refers to “our voters” when what she really should say is “our employers”.
Bravo!
The stunned masses and outside world look on in bewilderment.
The question is, which mad scientists decided to run the experiment, and how do we stop them?
The direction of travel is surely towards more and more centralisation, and less and less tolerance. This means that checks and balances are being eroded, as in Hungary, with the result being DINO, or democracy in name only.
Thank you again David for a brief and good post.
Whether a written constitution for the U.K. is necessary or desirable (and I know your views, with which I disagree), will be debated for some time. However, one of your remarks ‘confirms’ (re-enforces), my own views (that the U.K. needs a written constitution):
“The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament”.
Does no one think it is odd, very odd indeed, that it took one (wealthy) individual to establish fundamental constitutional principles? What if Gina Miller had not challenged the Executive – and won?
You once described Johnson as a charlatan and a fool, and suggested we’re lucky he was not a knave and a fanatic. I haven’t seen anything happen since then to warrant a reclassification.
Truss is, I don’t know. She’s proven herself a fool. She is made to look the fool in so many ways on a compounded basis day after day.
Is she vacant? I’m sure she’s very intelligent. It seems what she really lacks is any sort of political sense. She has made several knee jerk moves intended to shore up her image, which anyone should have been able to see would be disastrous. Who on earth is advising her?
I do not doubt she is intelligent – but one can still be vacant and a fool, even with academic or other intelligence. My own view, as I averred in a previous post, that she is absolutely disengaged with the real world, a character in a portal fantasy.
There’s a difference between being intelligent and being questioning, i.e. using one’s intelligence to question.
Consider the Brexit-related cases – (1) Miller 1 – could PM trigger Art 50 without Act of Parliament; (2) Miller 2 – could PM get Parliament closed down so that he could get his way over Brexit.
Answers. (1) NO. Act duly hurried through to let Theresa May trigger Article 50. (2) Court said no on that occasion but Johnson offered no defence. No such challenge possible now because of new legislation.
The litigation required a citizen willing to take the financial risk and the courage to face the undoubted criticism that flowed from bringing the cases forward.
At the time of all that litigation an amazing number of lawyers thought that the executive could do just what it liked – the only possible control being via parliament.
The Brexit saga shows the struggle and, in general, ineffectiveness of Parliament in the face of the modern executive power. (Remember those sectoral analyses or whatever they were called?)
Major reform is needed of Parliament as well as its ability to control the executive. Why, for example, cannot Parliament recall itself? A toothless but supposedly sovereign body.
If that requires a formal or written constitution then so be it.
Lawyers might love the intricacies of the UK’s supposed constitution.
I, for one, have had enough of one interminable mess after another flowing from the present inadequate system.
Hear hear
I shall say again that the only significant problem with our constitution rests between chair and keyboard.
Everything mentioned above is consequent on acts of criminal misconduct by a series of prime ministers, and the constitution provides for those people to be prosecuted.
Primarily the fault lies with David Cameron for neglecting his duty to prepare for the vote going against him. Everything mentioned above could have been avoided if only he had made the proper preparations.
I completely disagree about how David Cameron failed. The referendum vote was non-binding on either Parliament or government. Had he been a responsible leader having lost that vote, he would have (in the national interest) tried to call a general election. That was his failure, and it allowed Brexit to continue to be treated as a party political problem. I say “tried” because at that point in time he was still bound by the Fixed Term Parliaments Act.
Of course he also failed in other less serious ways. In his naivete, he failed to anticipate that Jeremy Corbyn would screw him over by pretending to support Remain while signalling his ambivalence quite clearly to hard core Labour voters.
Jeremy Corbyn, who has always been a Eurosceptic, engineered the Brexit outcome with the intention of making it look like the fault of the Conservatives, hoping to swoop in and be the guy who could fix it. It nearly worked.
Had anyone else been leader of the Labour Party in the lead up to that vote, I feel confident it would have turned out differently. Some Labour MPs including Jess Phillips have echoed this.
Thank you. It is a relief to read what I have been saying to people for years put so articulately. The Corbyn reign was appalling across the board. And you are right too about Cameron.
At this stage do the bye-laws of the 1922 Committee as arbiter of leadership of a party form part of the nebulous constitution? They seem to codify confidence of the house though their application currently seems as mixed as the fixed term parliaments act.
I do wonder if Boris could give us another example if he wins the member vote but a very large number of “his” MPs have been public about not supporting him. Could this be analogous to a hung parliament where the monarch should not appoint him as not sufficient evidence he has the confidence of parliament?
But maybe I’m just holding out hope for some more constitutional drama to amuse myself…