11th December 2019
If the Conservatives win the general election tomorrow, or continue to govern without an overall majority, then there should be genuine concerns for all who care for the constitution of the United Kingdom.
It was not always like this: for many years the Conservatives were the party of quiet, practical constitutionalism.
The party inspired by Edmund Burke (although himself a Whig); the party of Lord Salisbury and Lord Hailsham and Norman St John Stevas; the party responsible for life peerages, the Police and Criminal Evidence Act (in everyday terms the most important civil liberties legislation ever passed in the United Kingdom), the select committee system.
It is even the Conservative party of all parties that can take the most credit for the European Convention on Human Rights (through David Maxwell-Fyfe) and the Single Market (Lord Cockfield).
But then something changed.
The change predated the leadership of Boris Johnson and even that of Theresa May.
Under David Cameron and his immediate predecessors, the Conservatives shifted to explicit but hostile ideological positions on constitutional issues complemented by casual disdain.
Cameron, for example, insisted that the United Kingdom should repeal the Human Rights Act as a matter of principle.
When Cameron was faced with a defeat in the House of Lords in respect of a welfare proposal that was then dropped, he threatened to “reform” the upper house.
And when faced with a Speaker of the House of Commons who was not sufficiently obliging to the Conservatives, Cameron and his colleagues sought to get the Speaker replaced.
A pattern began to emerge: strident and populist statements in public and cynical manoeuvring in practice.
Under Cameron, May and Johnson the Conservatives were not the party any more of Burke, where wise heads would avoid pushing the constitution too far, in case the ship of state capsized.
The combination of Brexit (where the Conservatives persist in pretending that complex problems have easy solutions), the notion that a referendum result trumps parliamentary supremacy, and minority government for all but two years since 2010 have accelerated this anti- constitutionalist trend.
Just to take some examples:
- Secretaries of State repeatedly misled the House and its committees over the extent and existence of Brexit sector analyses reports;
- the Conservatives prolonged a parliamentary session over two years, so that there would not be a Queen’s Speech;
- the Conservatives packed committees with majorities, even though it was a hung parliament, by procedural sleight of hand;
- the Conservatives repeatedly ignored and did not even participate in votes on opposition motions, and then disregarded the motions passed;
- the Conservatives sought to make the Article 50 notification without any parliamentary approval whatsoever, and forced litigation to go all the way to the Supreme Court so that parliament could have that approval;
- the Conservative government became the first administration in parliamentary history to be held to be in contempt of parliament;
- the Conservatives deliberately broke the pairing convention, in respect of an MP on maternity leave, so that the government could win a vote;
- the Conservatives government gave serious consideration to blocking a duly passed Bill from obtaining Royal Assent.
There are many more examples one could list.
And all these examples in addition to being the government that sought to impose an unlawful five-week prorogation.
And all that in addition to the current manifesto commitments to limit any checks and balances on the government if elected – the now infamous “page 48“.
So distant has the Conservative party travelled from its Burkean heritage, and so radicalised by Brexit and its experience of minority government, that the party’s approach to constitutionalist issues is indistinguishable from that of any populist nationalist authoritarian party (for more on this see here).
This observation should not be understood to be a partisan point – as set out above the Conservatives had a rich constitutionalist background that can be applauded or at least respected – but the current party are now strangers to that tradition.
The best instance in showing this alienation was the decision of every single Conservative MP to vote for a programme motion providing that the complicated and hugely consequential Brexit withdrawal legislation would have had only a few days to be considered before enactment.
Former Conservative MPs sitting as independents or for other parties voted against it.
But the Conservatives all voted for this complete abdication of their parliamentary responsibilities.
One can point to that vote as the sad moment that showed that the constitutionalist tradition in the Conservative party came to an end.
If elected to power, the Conservatives will be emboldened by Page 48 and will continue the trash the conventions and practices of the constitution.
And that is why if the Conservatives win the general election tomorrow, or continue to govern without an overall majority, then there should be genuine concerns for all who care for the constitution of the United Kingdom.
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