By stewartb – a long read

This is the second blog post commenting on the initial (50 page long) report to emerge from an ongoing Review of the UK Constitution by the Institute for Government (IfG) and the Bennett Institute for Public Policy, University of Cambridge.

Source: Jack et al. (2022) A framework for reviewing the UK constitution. Institute for Government report 50pp. (https://www.instituteforgovernment.org.uk/sites/default/files/publications/framework-reviewing-uk-constitution.pdf )

The aim of the Review is to examine the purpose of constitutions; to assess how the UK constitution fulfils that purpose; to highlight problems with the UK’s constitution that are now being revealed; and to offer views on whether and how it needs to be reformed.

An earlier contribution on TuS considered some of the basic characteristics of the UK constitution and their origins (see ‘The UK constitution – it’s England’s creation and England will decide if, how and when it is reformed!’ – https://talkingupscotlandtwo.com/2023/07/02/the-uk-constitution-its-englands-creation-and-england-will-decide-if-how-and-when-it-is-reformed/ ).

In this second part the focus is on the nature and location of power and who decides how to exercise it.

Concentration of power

There is so much in the IfG/Bennet Institute report that is especially significant when viewed from a Scotland perspective, a perspective conditioned by our severely limited agency over matters in the gift of the Westminster government and parliament. Note in what follows the emphasis, in a constitutional context, placed by the IfG/Bennett Institute report on political power: of course it is specifically political power in Westminster that Scotland always lacks!

Report P25: ’… parliament is at the centre of the UK constitution and the ultimate source of power, but it is the executive that wields much of this power in practice. Any government that has a majority in the House of Commons has considerable control over decisions in parliament, with the House of Lords’ lack of public legitimacy preventing any major challenges to the government of the day. Parliamentary sovereignty also means the courts can only interpret acts of parliament, and not question their validity. (with my emphasis)

‘As articulated by (constitutional scholar) Vernon Bogdanor: “The legal doctrine of the sovereignty of parliament has thus come to legitimise a political doctrine, the doctrine that a government enjoying an overall majority in the House of Commons should enjoy virtually unlimited power.”

The report (P26) notes: ‘.. the nature of the UK’s first-past-the-post electoral system – which has produced single-party majorities in 22 of the 28 elections since 1918 – means the government has considerable control over parliament as decisions are made by a simple majority. The central role of political parties in the UK’s system of governance also means that, while any prime minister has to command the confidence of the House of Commons, they are usually the leader of one political party who has been selected by party members – a very small group of the electorate.’

At each step in the above description of the distillation of power, the contrasting democratic significance of these characteristics for residents and voters in Scotland compared to their neighbours in England becomes more and more stark. For Scotland,  effective agency within the Union is seen to be illusory.

The report goes on (P27): ‘The benefit of strong executive control of the legislature is that it ensures that a government elected by the public is able to deliver its agenda ….’ However, it adds: ’Strong central party control also means that in theory policies can be driven through parliament without broad support. The whipping system – where MPs are ‘whipped’ to vote with the rest of their party – means that there doesn’t even have to be majority support for a policy on the government’s benches for legislation to pass.’

Consider the nature – the remoteness – of democratic influence of a Scottish electorate that votes in only a small minority of MPs to a parliament in which ‘strong central control’ of a party – one which the majority of voters in Scotland may reject – enables that party, once in government, to drive its policies through parliament ‘without broad support’ EVEN in that very parliament. And if that tenuous link to a democracy within this Union is not stark enough for Scotland, it is demonstrated further here:

Continuing on P 27: ’.. there are limits to relying on these political checks on government activity in the Commons. Recent reports from two select committees in the House of Lords have argued that the balance of power has shifted too much towards the executive and away from parliament. In particular, the committees are concerned about the increasing use of ‘skeleton bills’ – which gives ministers broad powers to use secondary legislation, rather than acts of parliament, to introduce policy change – as this greatly limits parliamentary scrutiny.’

P29: ‘Parliamentary sovereignty means that – if the government has a majority – it faces few binding constraints. It is possible that such a government could even pursue a policy agenda that was fundamentally at odds with core democratic values, bringing forward (and, with sufficient party discipline, passing) legislation that restricted fundamental rights, for example disenfranchising parts of the population.’

The authors of the report note such dangers are NOT hypothetical, NOT scaremongering (P30): ‘The UK government is considering plans to create a mechanism to put certain legislation outside the court’s jurisdiction, and allow parliament to overturn judgments it does not agree with on a periodic basis, alongside a new Bill of Rights to replace the Human Rights Act.’

‘Increasing disregard for norms and conventions has also increased pressure on the courts as a constitutional long stop. Although Miller II (Supreme Court case) is one of the examples that (Suella) Braverman used to demonstrate the overtly political nature of court decisions, this was a situation in which parliament was unable to have any say over government decision making, and so normal mechanisms of accountability had broken down. The courts stepped in to fill a vacuum that the executive had never before created; ..’

Scary isn’t it – and recall these cautionary remarks are coming in a report prepared by organisations steeped in the British/English establishment.

House of Lords offers little constitutional protection

P28: ‘Even if peers were to try to oppose legislation, the Salisbury Convention dictates that they won’t oppose any that implements a manifesto commitment and the Parliament Act 1949 allows peers to delay the passage of legislation for only one parliamentary session.’

P.29: ‘Peers also do not propose amendments to, and cannot block, money bills as the Commons has financial privilege – a convention that dates back to the 17th century. But even when peers act within the constraints of the constitutional role, their lack of electoral mandate limits their effectiveness. Attempts to exercise their powers are frequently met with threats to limit them further, or to appoint new members more supportive of the government, as happened, for example, when peers threatened to remove clauses from the UK Internal Market Bill in 2020 that would have allowed the government to break international law.’

In any event, the IfG report acknowledges the obvious: the House of Lords’ ‘lack of democratic legitimacy’ (P8).  

An ‘ill-defined’ constitutional monarchy

P29: ‘The role of the monarchy has also evolved over time and the nature of the monarch’s constitutional role is, deliberately, somewhat ill-defined. The monarch’s constitutional powers are, in theory, an important check on government, but are limited by both the need to remain apolitical and the convention that most powers are exercised on the advice of ministers or on the basis of the will of parliament.’

‘Convention dictates that the monarch allows a prorogation (of parliament) on the advice of the prime minister with little detail on any firm circumstances in which this can be refused. The Supreme Court ruled that Boris Johnson’s advice on this (attempted prorogation in September 2019) was unlawful and therefore the prorogation had not occurred, but the case demonstrated the limits of the role of the monarch in the constitution and raised questions over whether the Queen could have actually refused the original request.’

End note

These insights into the nature and location of power within the UK constitution are being expressed by the IfG/Bennet Institute in terms that paint a troubling picture. As presented, their report should be – arguably it aims to be – a cautionary account for sensible people across the WHOLE of the UK in the 21st Century. 

However, it is when viewed through the lens of residents/voters in the nations of the UK other than England that once again the practical significance for democracy – and yes, for Scotland’s future – becomes most stark. The greater the unfettered power available to the executive in the Westminster system – and according to the output of the Review, executive power is indeed largely unfettered –  the more tenuous, the more dilute the agency of the Scottish electorate and of their elected representatives in Westminster becomes. The extent and consequences of our democratic deficit are laid bare!

Whilst within the Union, Scotland’s future is determined by England’s choices – determined by choices made by the executive of governments that England chooses!