Category: Constitutional Law

Centralisation is inevitable in the United Kingdom, unless there are radical reforms which no government will make

5th December 2022

The former prime minister Gordon Brown, on behalf of the opposition Labour party, has put forward proposals for de-centralising the state of the United Kingdom.

This is rather ironic in that Brown, as chancellor of the exchequer, was one of the most centralising ministers of modern times.

Under Brown the Treasury dominated Whitehall and the civil service generally, and it also sought to enforce discipline on the public sector generally.

(I know this, as I was a civil service lawyer at Brown’s Office of Government Commerce, which was one of the ways the Treasury sought to control and shape central and local government.)

Perhaps Brown has since had a conversion.

He was, after all, the politician who once gave away the powers of the Treasury in respect of interest rates to an independent Bank of England.

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But the problem of centralisation is bigger than Brown or any one politician.

Centralisation is the gravitational pull of the constitution of the United Kingdom.

The force can be bucked from time-to-time, but it will always be there.

In legal terms, the gravitational pull comes from the doctrines of the supremacy of parliament and the royal prerogative.

All public bodies, other than parliament and the crown, are subject to the ultimate control of law made by the crown-in-parliament.

Even the Scottish Parliament, as the Supreme Court recently decided, is effectively no more than a statutory corporation subject to a strict rule of ultra vires.

Local government bodies are in similar but worse positions.

In policy and political terms, a further gravitational pull comes from the Treasury.

The Treasury dominates public spending and public revenues.

No other public body is likely to be given absolute autonomy over spending and revenues.

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Politicians may go through the motions of de-centralisation, with a token development here and some well-meaning gesture there.

But the fundamental forces generated by the Westminster parliament and HM Treasury will not go away.

It would only be by devolution and regional settlements so radical that the powers of Westminster and Whitehall were vanquished forever that de-centralisation would be sustainable.

Self-denial would not enough – what would be needed would be constitutional self-destruction.

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This self-destruction is never going to happen – at least not easily.

Scotland and Wales are not going to be granted dominion status, like Australia or Canada, with their Parliament and Senedd being co-equal with Westminster’s assembly.

The regions are not going to be permitted to become like American states or German Länder, with powers that no central government can gainsay.

But without such radical constitutional surgery, the relentless force of centralisation will be there.

No United Kingdom government is going to freely give away its legislative power in parliament or its policy dominance with the Treasury.

And so we will just have tokens and gestures of de-centralisation again, only to fail; and then – in a few more years – these motions of de-centralisation will be repeated, and they will fail again.

***

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The secularisation of the United Kingdom state

1st December 2022

If you pick up a constitutional law text of a certain age you may find passages, perhaps even a chapter, setting out the relationship between the government of the United Kingdom and the Church of England.

You may even get passages on the Church of Scotland and the now disestablished Churches of Wales and of Ireland.

Next year at the coronation, there will be a great deal of religious content to the ceremony – and even when Charles III acceded earlier this year, one of the first required acts was to swear an oath in respect of the Church of Scotland.

Meanwhile bishops of the Church of England sit in the House of Lords and in our courts the first thing a judge and a jury will find out about you as a witness is whether you believe in a god or not.

Just over one hundred years ago, the state was even more fused with the church and, before 1828-32, some historians even speak of a “confessional state” which, at least in England, structurally privileged the Church of England.

The established churches were (and to a limited still extent still are) part of the constitution of the United Kingdom – if that constitution is understood descriptively as the answer to the question: how is the United Kingdom constituted.

As a non-militant atheist, I would welcome a state which was suddenly and entirely secularised, that is if it could be done painlessly in an instant of a blink.

But as someone interested in practical constitutional reform, I am less enthusiastic about disestablishment, given the time and trouble it would take.

Yes, get rid of the bishops from their automatic seats in the legislature, and also get rid of the presumption in favour of religious oaths in courts.

But that is about it: the rest can join the long list of constitutional reforms it would be nice to have, but not perhaps yet.

This is, ironically, an Anglican form of atheism: a via media between being religious and militant atheism.

And given the relationship between the Crown and the Church of England in particular under the new King – the defender of faith, without any definite article – there is no likelihood of any disestablishment in the near future.

So the current compromise will continue for a while.

That is: four nations; two established churches; and one of those established churches with seats in parliament.

And it is: a semi-confessional state at a time where there are many religious faiths in society, as well as an increasing amount of us free from any religious faith.

If we were starting from scratch, we would probably not give the Church of England such an elevated position within our polity – just as we would not now build that nice parish church around the corner.

But given that it is there, we cannot be bothered to get rid of it entirely.

And many of the parish churches are quaint to look at, and nice to visit about this time of year.

Let us put disestablishment off to another year.

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Why we should cheer Owen Paterson taking his case to the European Court of Human Rights

29th November 2022

The former member of parliament Owen Paterson is taking a case to the European Court of Human Rights.

There is nothing wrong with this.

Indeed, there is everything right about him doing so.

Paterson is a European human aggrieved about his fundamental rights, and he has the protection of the convention that guarantees his human rights.

It is for such aggrieved persons that the convention exists.

Indeed, the convention protects the rights of all humans subject to the jurisdictions of signatory states, and some of the convention rights even extend to legal persons such as companies.

Paterson has as much right as any other person in a convention state to petition the Strasbourg court.

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But.

Paterson as a politician sought to remove the protection of the European Convention on Human Rights from other people.

In 2014, Paterson argued not only for the United Kingdom to take a restricted view of its obligations under the convention, but for the whole lot to go:

“Much of the problematical immigration into this country stems not just from the EU but from the European Court of Human Rights.

“This is exacerbated by the rulings of judges in the court at Strasbourg and by our own UK courts implementing the Human Rights Act.

“Repeal of the HRA and adoption of a new Bill of Rights, breaking free from the ECHR, would also relieve us of migrant pressure, include such absurdities as not being able to deport illegal immigrants who come to Calais, because – according to our judges – France is not a ‘safe’ country for asylum seekers.”

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Now Paterson – through his lawyers – says he is going to Strasbourg.

Presumably this means he now believes that we should not be “breaking free” from the convention just yet, and that he would rather like a non “exacerbating” judgment from the judges at Strasbourg.

To the credit of his lawyers, they appreciate (and anticipate) the sheer absurdity of their client’s position:

“The irony that Mr Paterson, a vocal opponent of European institutions, should be seeking the help of the ECHR is not lost.”

Well.

You could say that.

And the sentence that then follows in the lawyers’ press release is just beautiful:

“But he has no other choice, as the Government has yet to meet its promise of repatriating human rights law to Britain, hence the application to Strasbourg.”

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He has no other choice.

And that is the very point of human rights law, and of international human rights conventions and international human rights courts.

They are all there as a last resort, for those with no other choice.

When you have a grievance that local forms of law have failed you, and when you believe fundamental rights should mean that your legal position is different from how you have been treated, then this is when you should be able to rely on your human rights in accordance with international law instruments, and seek a remedy at an international court.

And it should not matter if the right you are relying on is about fair trials, or torture, or free expression, or privacy.

Those migrants about whom Paterson complained in 2014 also “had no other choice”.

Various people have “had no other choice”.

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Paterson’s petition to the Strasbourg court may not succeed.

His complaint about parliamentary rules and procedures may not gain the favour of the Strasbourg judges.

The complaint is somewhat ambitious:

“The applicant complains that his Article 8 rights were infringed, as the public finding that he had breached the Code of Conduct damaged his good reputation, and that the process by which the allegations against him were investigated and considered was not fair in many basic respects.

“Communicated under Article 8.”

(Yes, Article 8 – and it is not clear why the complaint is not (also) under Article 6.)

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Paterson deserves a fair hearing of his petition.

Paterson is right to ask the Strasbourg court to apply international human rights standards to the parliament of the United Kingdom to see if our parliament is found wanting.

He is right not to be swayed by notions of “parliamentary supremacy” and “national sovereignty”.

Other politicians have only managed to get the parliament of the United Kingdom to pass legislation giving effect to the European Convention on Human Rights.

Paterson wants to go a grand step further and subject parliament itself to the convention.

He wishes, to adopt some jargon, for our “political constitution” to be judicialised according to European legal standards.

If he succeeds, Parliament will be obliged to change its own processes by a European institution.

Of course: it is a pity that Paterson sought to prevent others from protecting their rights at Strasbourg.

However, if he succeeds in this claim, he may do more to subject our polity as a whole to the European Convention of Human Rights than any politician since the Human Rights Act 1998 was passed.

This blog wishes him luck.

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Will the United Kingdom’s constitutional excitements ever stop?

25th November 2022

The nights draw in, as another year comes to an end.

2022 will soon be over.

Yet, it does not look like the constitutional excitements in the United Kingdom will lessen.

The main opposition Labour party has opted to raise the issue of House of Lords reform or replacement; the third-largest party in the House of Commons – the Scottish National Party – are committed to somehow gaining independence for Scotland, despite (or because of) the Supreme Court judgment this week ruling out a unilateral referendum; and in Northern Ireland the shared power arrangements have long broken down, and there is a real prospect of a border poll.

And that is before we even come to the government of United Kingdom, with its various avowed intentions: to break international law by statute with a Northern Irish Protocol Act; to restrict the right to protest; to repeal the Human Rights Act and replace it with laws to make it more difficult to rely on human rights law; and to suddenly get rid of remaining European Union law without regard to what it does and what impact repeal would have.

This is not a happy polity.

Some of these issues – Northern Ireland and Scotland – are about serious fault-lines in our constitution, and these will need to be addressed, if not resolved.

Others are the sort of self-inflicted, unforced errors that are a feature of our current somewhat frenzied political culture.

But none of these are directly about the social and economic predicament of many of the people in the United Kingdom, or directly about health or education.

Or directly about the war in Europe or the energy crisis.

(Please note the “directly” before you type out comments saying “Actually there is a relationship…”.)

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As this blog has averred many times, constitutional law should be dull.

This is not because constitutional law is unimportant – it is fundamentally important.

It is because constitutional law sets the parameters of everyday political (and legal) action.

If those parameters themselves become the constant issue then there will be inefficiencies in that everyday political (and legal) action.

Few if any people want to watch a sporting contest where there are continual arguments with the referees and umpires, and eternal confrontations with the governing bodies.

Similarly, constitutional matters – that is, how public bodies get along and resolve tensions, or the boundaries between officials and those who are governed – are not themselves interesting to most normal people.

The opportunity cost of this post-Brexit preoccupation with constitutional matters, and this government’s infantile obsession with stoking culture war issues, is that insufficient thought and effort is going into many other areas of public policy.

These are the sorts of policy topics – the economy, welfare, defence – that should be the priority for public debate and political scrutiny.

Yes, from time to time, serious constitutional matters need to be attended to – and the futures of Scotland and Northern Ireland, and the relationship with the European Union – require careful consideration and realistic arrangements.

But otherwise our body politic seems rather worn out, and it needs a rest.

Our body politic cannot always be in a brace, brace position.

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Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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For and against changing the electoral system

27th October 2022

Here is a brief post on a constitutional topic that I have avoided on this blog: the electoral system.

This is a topic on which many of you will have Very Strong Opinions – and, as with a codified constitution and membership of the European Union, it may be difficult for you to comprehend why someone could possibly not be in favour.

But.

The value, at least for me, in the current system is twofold.

First, I think there is merit in one person being the representative for a distinct, meaningful area – for example, Birmingham Edgbaston, or the Isle of Wight, or the Western Isles, and so on.

This is especially so given the convention that Members of Parliament refer to each other by their constituencies.

It means that parliamentary debate is itself a congress of places and local identities.

One member constituencies also mean we have by-elections, which provide a form of accountability between general elections that can be surprisingly effective – for example, Johnson’s fall from office followed two huge by-election defeats.

Second, many systems of proportional representation seem to give disproportionate power to party lists and party managers, breaking the direct link between the voter and the candidates.

But, but.

Those two factors are not overwhelming, and perhaps can be offset by other factors.

It cannot be right for certain parties, such as the Green Party, to have so low a parliamentary presence given their national share of the vote.

The current party system is also somewhat artificial, and the parties are themselves faction-ridden coalitions kept together by the needs of the electoral system, and this just causes different political problems – as we have seen with both the Conservative and Labour parties in recent years.

The current system has not even avoided hung parliaments – for example, in the late 1970s, the mid 1990s, and between 2010-15 and between 2017-19.

And the powers of party managers and party lists is just exercised in different ways, with certain candidates benefiting from safe seats.

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So my mind is not made up, and recent experiences have tested my assumptions in favour of the current system.

(I do not have Very Strong Opinions on every constitutional issue!)

Can a case be made for electoral reform which (a) does not involve name-calling of those opposed, (b) keeps the geographic links without giving party lists and managers too much power, and (c) keeps the possibility of by-elections as a potent political device between elections?

I open to persuasion – and so may be many others who have hitherto been wary of electoral reform.

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Re-visiting the “codified constitution” debate after the Johnson and Truss premierships

26th October 2022

From time to time it is worth revisiting the question of whether we should have a codified constitution.

For many the answer is self-evident.

Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.

The view of this blog, as you may know, is more sceptical.

There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.

In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.

Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.

The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.

And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.

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So: are our current constitutional arrangements liberal?

Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.

But.

Take a moment.

Here are three counter points to consider.

First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.  And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.

Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.

And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.

If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.

We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.

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That said, there are problems.

For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.

And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.

Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.

And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.

The counter-case is strong.

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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.

The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.

We cannot always trust illiberal ministers to make easy mistakes.

And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.

Brace, brace.

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Here we go again: Raab returns to the Ministry of Justice

25th October 2022

When Dominic Raab left the Ministry of Justice when Elizabeth Truss became Prime Minister, the blog teased that the Human Rights Act was still there and Raab was not.

Well.

Raab has today returned to the Ministry of Justice as Secretary of State and Lord Chancellor (and Deputy Prime Minister).

And this means things do not look good for the Human Rights Act.

As this blog has previously averred, the Human Rights Act is Moby Dick to Raab’s Captain Ahab:

And so when Raab went, it seemed the Act was safe.

The new Truss administration dropped the “Bill of Rights”, a dreadful mess of a Bill.

That reversal was, it seems, the price exacted by Robert Buckland, the former Lord Chancellor, for serving as Welsh Secretary in Truss’s cabinet.

But earlier today, Buckland announced he was leaving the cabinet under the new Prime Minister Rushi Sunak:

Buckland’s letter refers to a meeting, and one wonders if he again asked for an assurance about the Human Rights Act – and, if so, what the answer was.

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While Raab was away, his replacement Brandon Lewis had the confidence and sense to negotiate a resolution to the strike by criminal barristers.

It is unlikely that resolution would have happened had Raab stayed on, and it should not be taken for granted that action by criminal lawyers has come to an end.

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As this blog has previous stated, those who sneer at Raab for not understanding human rights law are wrong.

It is that he does understand it – he just does not care for it.

And this makes him a more formidable opponent to liberals and progressives than someone who is merely ignorant of the applicable law.

We do not know yet whether Raab will now seek to revive the “Bill of Rights” many of us had assumed would pass into oblivion.

There are at least two years left of this parliament and so there is perhaps enough time for him to have a go at forcing the Bill through if he can, regardless of any backbench worries.

He may have difficulty in the House of Lords, however, as the 2019 Conservative Manifesto stopped short of promising to repeal the Human Rights Act.

But for Raab this is unfinished business, and so such an attempt is more than likely.

And for those who have a liberal or progressive interest in the law, we are again that fabled bowl of petunias:

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was Oh no, not again.”

Oh no, not again.

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So this is what happens when we do not have a functioning Prime Ministership

20th October 2022

I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.

But I have never seen political chaos like yesterday – which is carrying on into today.

On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.

There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.

All pretty normal in these not-normal political times.

But.

The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.

Even Wikipedia could not keep up:

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Well.

All the drama from yesterday points to one thing.

There has been an absolute collapse of Prime Ministerial power.

The details from yesterday (and today) are effects, not causes.

They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.

One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.

But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.

We can now see.

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This is not – yet – a constitutional crisis.

It is certainly a political crisis – indeed, it is an exemplar of a political crisis.

And it certainly is a constitutional drama.

But not all political crisis tip into constitutional crises.

This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do

The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.

Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.

Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.

And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.

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Brace, brace – as this blog often says.

But alas that warning is too late for the Prime Ministership of Elizabeth Truss.

That has already crashed.

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How the constitution of the United Kingdom has been tested continuously for over seven years

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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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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