A Crisis of Legitimacy – Parliamentary Democracy in Historical Perspective

 

In December 2018, the British Army took control over a large area of common land in Cumbria. According to the Financial Times, this was the first ‘enclosure’ of commons in England for more than a century. But it happened a long way from London, where the media were already obsessed with the Brexit-related goings on at Westminster. So it was not widely reported, and left almost no imprint on the national consciousness.

That was a shame. The enclosure of common land was one of the major events of English history, and its recurrence in present-day Cumbria should have triggered deep historical resonances. It went unremarked at the very moment at which, if properly understood, it had the potential to shine a light on an important fact of contemporary British politics.

A conventional explanation for the UK’s current political turbulence, much favoured by political commentators, is that it arises from a clash between two types of democratic ‘method’ – representative democracy (through Parliament) and direct democracy (in the form of referendums). Igor Judge, a former Lord Chief Justice, writing in Prospect, says that the current Brexit impasse is simply the outcome of this conflict – ‘when both systems are employed simultaneously to resolve the same problem, the risk of accident is obvious‘.

On this view, the UK’s current crisis is one of constitutional mechanics. The mistake was for David Cameron to have employed the essentially alien mechanism of a referendum, which sits ill with the British tradition of parliamentary democracy. This led to a grinding of the constitutional gears which can only be resolved either by Parliament reasserting control or via a second referendum. Had Cameron avoided the unnecessary innovation of the first referendum, none of this would have happened.

This would, if correct, be comforting. Mechanical problems can be fixed by technicians. A constitutional problem caused by politicians can also be resolved by them. But in truth, the crisis is deeper, wider and more fundamental. It is a crisis of legitimacy, going at its heart to the question of public trust in the UK’s democratic institutions, and indeed to the matter of their essential trustworthiness. It is here that a very brief history of the English enclosures offers a pointer to the source of the malaise.

Continue reading A Crisis of Legitimacy – Parliamentary Democracy in Historical Perspective

A Constitutional Land Grab – The UK Supreme Court and Prorogation

In its judgment in two cases relating to the prorogation of Parliament, in which it struck down the prorogation order issued by the Queen on the advice of the Prime Minister, the UK Supreme Court made what Lord Sumption has rightly called a ‘revolutionary’ move, placing itself squarely in the middle of territory previously regarded as exclusively political. This is an unwelcome constitutional development with long-term negative consequences, and is unsupported by any of the legal analysis on which the Court attempts to rely.

Two common features of a constitutional crisis – there should be no doubt that this is what the UK is currently experiencing – are now fully in evidence.

The first is the tendency of small events to have large effects beyond their original scope or purpose. The Fixed-term Parliaments Act 2011 had the pragmatic aim of binding the Conservatives and Liberal Democrats into a full five-year term of coalition government (2010-2015). Its function was to make clear to both parties that neither could bail out in mid-term as soon as they sensed a politically advantageous moment to force an election.

The political need for this was exhausted by the coalition coming to the end of its natural life, and the Conservatives proposed in their 2017 Manifesto to repeal the Act. However, failing to win a majority in that year’s election, they could not carry it through. So the Act remains on the statute book, where it now stands as one of the most consequential pieces of constitutional legislation in recent times. By depriving the Prime Minister of the traditional power to call an election at a time of his choosing, it is major contributor to the current sclerotic state of Westminster politics.

The second feature is that constitutional actors seek to take advantage of the prevailing disruption of established norms in order to arrogate power either to themselves or their institutions, so redrawing the boundaries of constitutional authority in their own favour. The UK constitution, with its significant unwritten elements – the maintenance of which relies heavily on conventions of moderation in behaviour – offers fertile territory for this kind of constitutional land grab. The Speaker of the House of Commons has previously ripped up the rule book which constrained him (see here). And now the Supreme Court has chosen to do the same.

The opportunity for the Court arose in the combined cases of Miller v The Prime Minister and Cherry v Advocate General for Scotland (together Miller No. 2, to distinguish the case from earlier litigation by the same claimant). The Court’s judgment is one of the most significant and controversial in its brief history.

The controversy is well-justified, because the Supreme Court has overreached itself. Viewed as a constitutional intervention, the substance and effect of Miller No. 2 is that the Court has taken occupation of territory formerly regarded as lying exclusively within the sphere of politics, and done so without even the virtue of being transparent as to its intent or that outcome. Viewed purely on a legal-analytical basis, the judgment fails on its own terms.

It is, in short, a poor judgment. And it will have important, and negative, implications for the future both of the Supreme Court itself and the UK constitution more generally.

Continue reading A Constitutional Land Grab – The UK Supreme Court and Prorogation

Developments in Legitimate Expectation – Secrets, Politics and Inquiries

In two recent cases, Jefferies and Finucane, the courts have considered key themes in the modern doctrine of legitimate expectation, including whether an expectation can be created in conditions of strict confidence, and the circumstances in which the government can resile from expectations created in a macro-political context. 

The Leveson Inquiry into the behaviour of the British press was originally intended to take place in two parts. The first would inquire into the culture, practice and ethics of the press, and make recommendations for more effective regulation (Leveson 1). This occurred during 2011 and 2012. It generated a 2000 page Final Report, which in turn spawned a new regulator, IPSO.

Following this there was to be a hiatus, during which criminal prosecutions arising from the conduct of the News of the World could take place. Once these were completed, it was proposed that Leveson would reconvene to inquire into the corporate governance of the press, and the conduct of the police, politicians and other public servants in relation to it (Leveson 2).

On 1 March 2018, the current government announced that Leveson 2 would not proceed.

R (Jefferies) v Secretary of State for the Home Department was a judicial review of this decision brought by four people whom Leveson 1 found to have been treated badly by sections of the newspaper industry – a group which included Gerry and Kate McCann, parents of the missing Madeleine. They challenged the decision not to hold Leveson 2 on the ground that they had a legitimate expectation that the second stage of the inquiry would go ahead.

Shortly after Jefferies, the Supreme Court reached a decision in the long-running case of Geraldine Finucane, which also turned on the question of whether the claimant had a legitimate expectation of a public inquiry, in this case into the murder of her husband in one of the most infamous episodes of the Northern Ireland Troubles.

Both cases deal with important themes in the law on when legitimate expectations arise, and when (having arisen) they can lawfully be frustrated.

Continue reading Developments in Legitimate Expectation – Secrets, Politics and Inquiries

A Very British Coup – The Speaker of the House of Commons and the Brexit Crisis

The Speaker of the House of Commons, John Bercow, has indicated that, in accordance with a longstanding rule of Parliamentary procedure, the government is unable to bring the EU Withdrawal Agreement back to the House for a third vote. In doing so, he has strayed beyond the limits of precedent, and therefore of his authority, and has provoked a minor constitutional crisis.  

The Brexit policy of the UK government can be stated simply: to keep bringing back to Parliament the Withdrawal Agreement it negotiated with the EU until the House of Commons eventually decides to accept it. So far, the Agreement has been voted on and rejected twice. The government wants there to be a third vote. And, if it loses that, there will certainly be a fourth, and even a fifth.

The announcement by the Speaker of the House of Commons on 18 March 2019 that no further vote can take place in this session of Parliament is of constitutional significance because – while superficially a decision on an arcane point of Parliamentary procedure – it amounts in substance to a veto by him of the main policy of the elected government, with which he has now placed himself in direct opposition.

To justify his approach, the Speaker appealed to historical precedent and Parliamentary convention. But he has strayed far beyond the limits of any legal or constitutional map. Whatever his motives, he is now engaging in procedural innovation for which there is no basis in law or past practice. In doing so, he runs the risk of turning the current political sclerosis over Brexit into a genuine constitutional crisis.

Continue reading A Very British Coup – The Speaker of the House of Commons and the Brexit Crisis

Dial B for Brexit – The Government’s Conference Call with Big Business, and the Brexit Endgame

Shortly after Parliament voted down Theresa May’s Brexit deal by a record margin, three Cabinet ministers spent about an hour on a conference call with executives from major UK businesses. The call was transcribed, and it offers a good insight into the relationship between business and government, and what this means for the Brexit endgame.

The House of Commons voted on the EU Withdrawal Agreement shortly after 7.30pm on the evening of 15 January. The government motion to approve the Agreement was defeated, as everyone knows, by the historically unprecedented margin of 230 votes.

After the vote, three senior Cabinet ministers went straight back to Whitehall where, at 9.30pm, they held a conference call with around 330 executives representing businesses with major operations in the UK.

Inevitably, given the number of people involved, someone recorded the call and leaked a transcript to the press – in this case to the Daily Telegraph, which promptly published the text on its website (here, sheltering behind its paywall).

Aside from the pleasure of feeling like an eavesdropper at the Davos conference, reading the transcript offers a genuine insight into the relationship between government and big business, and the likely next steps in the ongoing Brexit saga.

Continue reading Dial B for Brexit – The Government’s Conference Call with Big Business, and the Brexit Endgame

The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals

The Withdrawal Agreement in which the UK has negotiated the terms of its exit from the EU is, according to Angela Merkel, a ‘diplomatic piece of art’. And so it looks from the perspective of most European capitals, given how favourable it is to the long-term interests of the EU. Viewed from the UK, however, it represents one of the most abject failures of statecraft in modern British history. This is the story of how and why it got to be so bad that it has achieved the remarkable feat of uniting both ends of the political spectrum against it.

As is now widely acknowledged across political party lines at Westminster, the EU Withdrawal Agreement, in the form that was endorsed by the Council of Ministers on 25 November 2018, amounts to a strikingly bad deal for the UK.

Less coherent than any other available option, it leaves all of the fundamental issues as to the future unresolved, while committing the UK in international law to processes and outcomes that ought to be unacceptable to any democratic nation state. It concedes most of the UK’s original bargaining positions in return for no permanent benefit, and creates a fatally weak basis for negotiations on a future trade deal. In consequence, its adverse political and economic effects are likely to be worse in the long term than the disruption of a ‘no deal’ Brexit would be in the short term.

Moreover, these defects are not the product of the usual give-and-take of negotiation – a tolerable compromise, acceptable to everyone because it fully satisfies no-one. Instead they are the outcome of a series of avoidable decisions, the most important of them made in No. 10 Downing Street by the Prime Minister personally. As a result, the Agreement represents one of the most abject failures of statecraft in modern British history.

The things that are wrong with this deal can be summarised in four main points. But to understand them, and the Agreement itself, it is important to describe briefly how the UK got itself into this mess.

Continue reading The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals

Evaluating Regulation in the Brexit Debate

Placing a value on the UK’s regulatory flexibility after Brexit should be key to informing the policy choices that need to be made by Parliament. But the government has adopted conflicting positions. It has told one story for general consumption and another in the Brexit debate. Which is right? 

What is the value to the UK economy of the ability to set its own rules after Brexit? How much could be saved in costs to British business if unnecessary regulations were repealed and bad regulations replaced by better ones?

These questions are fundamental to the debate about what type of Brexit the UK should be working towards – or, for some people, whether it should still be working towards Brexit at all – but it is hard to find any convincing answer to them. The UK government appears to have no coherent position on the issue.

Continue reading Evaluating Regulation in the Brexit Debate