181 | Talking Politics Guide to ... The UK Constitution

We talk to lawyer and constitutional expert Alison Young about the current pressures on the UK constitution, from Brexit to devolution to political polarisation. Is parliamentary sovereignty still the linchpin of the system? What changed with the arrival of the Supreme Court? Can the constitution survive in its current form?

DAVID: Hello – my name's David Runciman and this is Talking Politics. Today's Talking Politics guide is with Alison Young, Professor of Public Law, talking about the UK Constitution: why it's under so much strain at the moment and whether it might actually break. We should probably start with parliamentary sovereignty because it's usually said to be what defines the British constitution, and yet that creates a puzzle which is, that means parliament can change the thing that it defines. How should we think about the role parliamentary sovereignty plays in our constitutional order? 

ALISON: I think we need to think about it by understanding the consequences it has for how we structure the Constitution. So what it's trying to get across is the idea that legislation enacted by parliament is, in a sense, the highest form of law in the land. So it's not just looking at this idea that parliament can make legislation on anything it wants to. It's also this idea that one parliament can't say to future parliaments, ‘This is off grounds you can't legislate in this area.’ So it means legislation is at the top, and it allows parliament to change things as it goes through. And that has the consequence that, unlike most other systems, we don't have a constitution that is above legislation. We don't have a written constitution that's entrenched, that says, ‘Well actually these are things you can't do, parliament.’ We allow parliament itself to say, ‘We can enact whatever we want, including on constitutional issues.’

DAVID: So how does that change when we get other parliaments? We are living in an age of devolution. We have complicated relations, and these parliaments are in complicated states. But in Northern Ireland in Wales and in Scotland, can the Westminster parliament in this context essentially override anything that they do? 

ALISON: In a nutshell, yes, and that's what makes it complicated because on the one hand you're saying, we have these devolved parliaments. So we have the legislatures in Scotland, Wales, and when it's there Northern Ireland. But in essence we're saying, the Westminster Parliament is still in charge. So it has decided to delegate powers, to say, ‘Well you can enact laws in these areas,’ but Westminster itself can then enact legislation in those areas and also to take away those powers. So we've come up with what we call a convention, this is kind of a rule of practice, the way in which these parliaments interact with each other. And so the convention, which we call the civil convention, is this idea that the Westminster Parliament is not going to legislate on something in the devolved areas or change the devolved structures without the consent of the devolved bodies. But we don't always comply with it because it's not something we can legally enforce.

DAVID: And is it genuinely something that's delegated? I mean is that how we should think about it: it’s given and it's taken back? Because the idea of it being given doesn't really sit well with the idea of genuine devolution.

ALISON: Absolutely, and this is why it's so complex. When you're looking at most multilayered systems, you have a kind of federal structure. So the idea is that you have legal limits on the centre and legal limits on the devolved bodies. We’re not in that situation. There aren't the same legal limits on the kind of federal level, if you want to kind of compare the analogy, the sort of Westminster level, but there are legal limits on the devolved bodies. Where it becomes more complicated is we also have in legislation in Westminster a statement that we recognise that the devolved bodies are permanent institutions of the Constitution and that if they were to be removed or modified that would be because the people of, say Scotland, had decided that it didn't want a Scottish Parliament anymore and then Westminster would respect those wishes. But these are odd in that they're kind of statements of, ‘We recognise that they are permanent institutions.’ But it's difficult to see them as saying, ‘And so, therefore, Westminster is legally stopped from doing this.’ It's more an element of, constitutionally, in the sense of it wouldn't necessarily be the right thing to do, and politically because we have this political state and that's what makes it so odd. We don't have legal limits, but it's more kind of what we feel, what we think is politically acceptable, and what we think is constitutionally acceptable. And that gives it this odd kind of element of, ‘You’re permanent, but at the same time we can take your powers away,’ which is an odd imbalance between the two.

DAVID: In a way the oddity is that the institution is permanent but the powers aren't. I mean that's what that's what it sounds like. It's not hard to imagine scenarios where this is going to be put to the test. So for instance, the classic one, if the Scottish Parliament legislates for a referendum and the Westminster Parliament says no… How does that play out? Does that go to the Supreme Court? Because we're going to come on to the question of the other constraints on parliamentary sovereignty. Are these clashes in future likely to reach the Supreme Court. [5:10]

ALISON: They are, and they already have. To take your first issue, the could Scotland go and hold its own referendum, the way it was resolved last time was to assume that it would be in what we call the reserved powers. So constitutional issues are reserved to Westminster. So it was assumed that, as this would be to do with separating potentially Scotland from the UK, this was a constitutional issue, so it resides with Westminster. So Scotland asked Westminster for special order to transfer the power down, and then there were negotiations between the government, and the referendum was held. That was how it took place last time. That works well because you have a political discussion of how it works. The difficulty is it hasn't resolved the issue legally, and so there are lots of questions about, well, if you have a referendum that is just politically advisory, so it's not legally binding, are you really changing the constitutional structures or are you just holding an opinion poll? And if you're just holding an opinion poll, wouldn't that be within the powers of the Scottish Parliament? And if they went down those lines then of course you would have the issue going up to the Supreme Court to determine is this, or is this not within the devolved powers of Scotland? And the determination the Supreme Court would resolve that issue.

DAVID: And in that context, is it plausible that the Supreme Court… we don't know what's going to happen… but is it plausible that the Supreme Court doesn't say, ‘Well you were allowed to do it because it's just an opinion poll.’ But in the end decides that there is some aspect of what we think of as the ability to change our constitution that does now reside in the devolved parliaments? 

ALISON: I think it would be unlikely for them to conclude that the constitutional issue was part of the devolved powers because, if you look at more recent cases… So the most recent case that went up to the Supreme Court is on the Scottish Continuity Bill. It's fantastic, named case. It doesn't give much away. But this was to do with Brexit. So we have the European Union Withdrawal Act. Originally Scotland did not give its consent to the European Union Withdrawal Act and enacted its own special legislation to continue EU law in Scotland. That was then challenged before the Supreme Court and it went up to the court to determine whether they had the power to act or not. If you look at how they argued that case, I think it would be very unlikely that the Supreme Court would say that constitutional issues can be within Scotland. But I do think that they might be willing to look at it and say, well if it's just an opinion poll and it's just an aspect of finding out the opinion of the Scottish people, which would then trigger perhaps in future the Scottish Government to liaise with the UK Government about what to do in response those opinion polls, that might be something that would be within the powers of Scotland, because they wouldn't be changing per say… they would be initiating the responsibility to negotiate with Westminster. But I think if you went down the lines of saying Scotland could decide this in and of themselves, I don't think that would fit the way the Scotland Act is structured because constitutional provisions are reserved to Westminster. 

DAVID: Then on the wider question of the relationship of the Supreme Court to the legislature, should we be thinking now that this thing called parliamentary sovereignty is significantly constrained by the powers of the Supreme Court. That parliament in creating this court has actually genuinely limited its sovereign powers? 

ALISON: It hasn't necessarily limited its sovereign powers in terms of creating the court.

DAVID: It could abolish it.

ALISON: It could abolish it… I think it would be interesting to see them try. I think if you wanted an example of a potential constitutional crisis, I think you'd have one right there.

But I think what has happened is, partly because the Supreme Court now has independence, it's clearly distinct, it's no longer the highest court sitting in essentially a chamber of the House of Lords. It has its own distinct building, has its own distinct presence, it's reaching its tenth anniversary… And what is happening is that there are other aspects that are potentially putting limits on the sovereign powers of Parliament but it's not necessarily the court in and of itself that's triggered that. So the main one has been through European Union law. The EU has what we call primacy, and it has direct effect. So it means normal individuals can go away, look at an aspect of EU law, think, ‘Well I want to rely on EU law.’ I go to court, I see a piece of legislation that's in my way, but actually EU law can disapply that legislation, and I can still rely on my EU law rights in UK courts. So obviously that for the UK is not something we are used to because we're not used to this aspect of a hierarchy, and we're definitely not used to something disapplying legislation in order for someone to align EU rights. And that does in a sense, you can see how that limits parliamentary sovereignty. The way we like to get around that is to say, ‘Well Parliament itself enacted the legislation that said it was going to join the EU. So Parliament said the EU law can override national law, and if Parliament changes its mind, then it goes back again.’ [10:19] So this is how we try and square the circle. So EU law has been a restriction. The Human Rights Act doesn't operate in the same way. So there, if you have legislation that contravenes Convention rights, you can have what we call a declaration of incompatibility, and the declaration is a bit like saying, ‘I'm not compatible but I'm still there, I'm still in force, I still have legal effect, and it puts political pressure on parliament to change the law.’ Where others have seen potential restrictions on parliamentary sovereignty is how the courts are beginning to interpret legislation. So they will look at general words in legislation, and there's something called the principle of legality, which is where a court will look at general words, and say, ‘Well these general words might empower the executive to do something which is contrary to fundamental common law rights. So we'll take these general words and we'll read them down and say although you've got a general power to do something, you can't use your general power to harm individual human rights.’ And then look at the action of the executive and say, ‘Well you used your power there to harm individual rights, so we'll say, well actually you don't have the power to do that.’ And that is another potential tension to parliamentary sovereignty because parliament has said the executive has this broad power, and the courts have come along and said, well I know you've got a broad power but we're not going to allow you to use that broad power to harm individual rights. And that's another tension that is emerging between parliament and the courts.

DAVID: So in that broad context, how significant was the Gina Miller case? What did we learn from that case about this evolving relationship between the Supreme Court and the sovereign Parliament?

ALISON: What's interesting about the Gina Miller case is it's one of the cases where, although it's a hugely important constitutional case, a lot of it rests on the importance of the sovereignty of Parliament. So what was going on in the Gina Miller case was a tension between the government and parliament, and the question of whether the government could trigger Article 50, or whether Parliament had to empower them to do so. And in restricting the powers of the government, the court actually empowered parliament because it said, ‘Well the government can't do this alone. It doesn't have a perogative of power. So therefore parliament has to empower it to act.’ You can see the Miller case is actually reinforcing parliamentary sovereignty, even though there's a lot of criticism of the court's going too far. They weren't going too far by saying, ‘Well actually we don't think Parliament can do something.’

DAVID: They’re saying the executive can’t do something. 

ALISON: Exactly. We want to restrict the executive, and instead Parliament has to empower them, which means in turn Parliament, if it had wanted to, could have put restrictions on how to trigger Article 50. It chose not to. But it was empowered to do so by the courts if it had wanted to do so.

DAIVD: This leads to what is probably the big question because in that context there are two ways in which leaving the European Union may look as though it is...  for want of a better word, restoring some aspect of parliamentary sovereignty. Partly because through the process, and the Gina Miller case is one example of this, we are seeing the assertion of the legislature against the executive. And then there is the hope, the dream, of people who are in favor of Brexit that what they are doing is rescuing the British parliament from the kind of… as they see it, the being ensnared by European law that Parliament itself enacted but now wants to get out of. And yet these two things are in tension in a way because the assertion of Parliament is often in order to slow down or maybe even stop the Brexit process against the executive, and then we've got the hope of the Brexiteers… So can you untangle this? Because I find it really hard to know… is it plausible for anyone in this context to say that at the end of it all, parliament’s sovereignty will have in some sense been reasserted? [15:20]

ALISON: What you're picking up on is a different tension, an attack on parliamentary sovereignty. Because we've always had this system of Parliament being sovereign, we see ourselves very much as a representative government. So you go away, you have an election, the people elect the government, and the government goes away and implements what the people wanted when they voted. And that's how we see it. And so we see it very much as a representative democracy. We suddenly put a referendum in the mix, and we put a referendum in mix… and because we don't have an entrenched constitution, we didn't have a provision that said, ‘Oh we can only have referendums on certain issues,’ or when you have a referendum you need a certain percentage majority or an agreement across all the different component nations, or you can only have it… it triggers a legal responsibility or it doesn't. So all of that depended on the legislation enacted to empower the referendum, which then leads to an interesting scenario because we had a politically advisory referendum… because the European Union Referendum Act of 2015 didn't say, ‘And the government is legally obliged to implement the referendum.’ So you suddenly have this tension between the sovereignty of the people, as expressed in the referendum, and the sovereignty of Parliament. And we're still trying to work that out. And that is becoming a real problem in a sense because we have never really thought about… we have parliamentary sovereignty. We have parliamentary sovereignty through a sense of representative government. But do we have parliamentary sovereignty because that enhances the will of the people, And it's just the people have expressed their will in the election and then Parliament goes away as it implements it? Or do we have parliamentary sovereignty for other reasons? Because we recognise that there are values to having representative democracy because there's value in having MP’s who are professional, who have expertise, and can debate in different ways? We're sort of in a situation where that tension is currently being played out, which is why you've got this aspect of, does the referendum mean the government goes away implements the referendum outcome, and that's the end of it, and parliament should have no say. Or do we need parliament to have a say to ensure parliament is still there to enhance its sovereignty against the executive? And how does that play out when the executive is essentially saying, ‘We're not just the executive. We’re the executive implementing the will of the people.’ And this is what's becoming such a mess. I'd love to be able to untangle it for you but I think until we take a step back with the tension between, ‘I'm a remainer or a leaver,’ then I think it’s going to be very difficult to untangle this on constitutional terms. So I think you're just going to see constant tension in that area until it's resolved. 

DAVID: Part of the context here is both because of the rise of nationalist parties in Scotland and in Wales, and because of the devolved, increasingly devolved, nature of our Constitution, and also because the main two established political parties are in trouble. We can say that... even when this goes out I would be surprised if it's still not true that they're facing challenges. So it's a more fragmented political landscape. And yet this constitutional order has depended, maybe depended on is too strong a word, but it's worked through a strong executive that commanded the support of the legislature because it had a majority in parliament. And the age of parliamentary majorities may be over. And we may be entering the age of coalition government. Does that pose… it poses a political challenge, but does it pose a constitutional challenge? 

ALISON: I think it does pose a constitutional challenge because it's putting under pressure a lot of the assumptions on which the Constitution is based. So we have, as we said, this uncodified constitution. It has a plethora of written sources, but one of the sources of how the Constitution works are the internal rules of Parliament. Parliament's own standing orders of how it runs itself.

DAVID: And we've learned more about this recently…

ALISON: We’ve learned a lot more… as a constitutional lawyer, standing orders were always something that kind of hid in a box in the back corner, and suddenly we’re all running away to the library, rediscovering them again because they've become hugely important. And the one that's become so important Standing Order 14. Standing Order 14 essentially says, ‘Well the government gets to set the order of the day.’ So the government sits down and decides what the business is going to be in parliament, and its business takes priority. Now that works fine when you have a government with a majority because you look at it and say, ‘Well the people have voted. They voted for this particular political party. They have majority of seats. It’s only right that they should have priority over business because they've got this backing, and they push it through.’ But does it work when you've got a minority government? Because you can't make the same claim. And I think this is why this tension is coming through at the moment. And there were discussions even before Brexit about whether we should move to a different committee structure, where you could have a committee that ordered the business parliament, and you could say, well even if that committee prioritized government because it reflects the composition of the house...  And so when you had a strong majority the government's business will be pushed through. In those scenarios where you have a minority government, there will be more of a discussion on how to prioritize business, rather than the system we have been getting at the moment, which is motions to try and modify Standing Order 14 in order to then put other pieces of legislation to push it through… Which is causing all sorts of tension as to, can the speaker permit this? Can he not permit this? I think it's because we’re showing that this assumption on which these rules are based isn't necessarily there. I think that's making us take a step back and question, can we continue to have this adversarial system, this first past the post system, if we're moving away from clear party structures? And if we're not having these debates, if people aren't taking part in political parties and debating about different issues, then the party firms that often comes up with policies… then should we start questioning the whole way in which we have a voting structure. The whole issue is raising deep foundational aspects of our Constitution that we've just assumed work, and suddenly we're realizing that in certain circumstances they don't. [21:33]

DAVID: At the end I'm going to come on to what needs to change first. But another thing that's often said about the British constitution is its great merit is its flexibility, its adaptability. And unlike codified constitutions, in fractious times, actually the constitution is designed to accommodate social and political forces. So you've written about this, some people have said that actually our advantage in this country is that we're slightly protected from some of the populist pressures—that's the phrase it's often used—because our Constitution can accommodate the pressure. In other countries where the Constitution is a barrier, the populism kind of ramps up against the Constitution. You're skeptical. That’s a leading question why… why do you think that our Constitution does not… its flexibility does not give us some safeguards? Because you do hear it. I mean, actually Theresa May's great claim was that she'd killed populism in this country.

ALISON: The reason I'm skeptical is, I think, one it misunderstands where the danger of populism lies. And once you understand that in more depth, you then delete the second point that you kind of misunderstanding how the Constitution works, if that makes sense. So the reason we're not skeptical is because often we see populism as a way of counterbalancing aspects of either boundary issues… So when you think that the right groups aren't being represented properly in politics, so things like should we have Scottish independence, is a classic boundary issue. Or should we be part of the EU? Are we sufficiently part of the EU polity or are we UK is another boundary issue. And the other aspect it tends to do with is when we don't think there's sufficient representative democracy because of the voting system. So I'm a working class Sheffielder by birth. So if you go back to my hometown you can see this kind of element of bifurcation, and there’s very much a feeling that working class northern cities aren't necessarily represented in Westminster. And often we see populism as a way of saying, populist movements will spot that tension, and say, ‘Well really these groups aren't being represented.’ They will then get sufficient support to try and change things. And then it becomes almost self-correcting because one aspect of populism is to criticize elites. So you get some power, you say, ‘Well these people are being ignored.’ You get momentum. You get into power. And then you become the elite that gets criticized. And so our flexible Constitution works very well. I think what that ignores is some of the aspects of the dangers of populism. One aspect of the danger of populism is when we homogenize the will of the people. We pretend that there is just one will. So there's just one answer. And referendums can add to that because you might vote for or against remaining in the EU for a variety of reasons, but once you get the outcome it, homogenizes it around, ‘Well the majority said Leave, so obviously the will of the people is Leave.’ And so it's homogenizing a range of different views for why you might want to leave. And it's homogenizing why you might want to remain into, ‘Well now this is the will of the people.’ And that can become dangerous because you miss the nuances and it becomes difficult to debate. The other danger of populism I think is that we focus too much on emotion, not enough discussion of expertise, and not enough deliberative democracy. It's all about grandstanding and snap statements. If you then transfer that across to what happens in the UK, we have what we call an arena… So we grandstand, we make big statements, we argue against each other, and there is deliberation that goes on but we don't necessarily see it. And so it's easy in that circumstance for populist movements to sort of catalyse within parliament and for MPs to pick up on them and use them for grandstanding statements and pushing down deliberation. Tie that to a referendum and it can become even more problematic if you can't push back against that, and then ultimately, we then get back to what I discussed earlier about this problem about sovereignty of the people and the sovereignty of Parliament. And the more we just say, ‘Oh Parliament is sovereign or the people are sovereign,’ without understanding why, the easier it is for populism to gain ground. And that's why I think it can be problematic in the UK constitution. [26:00]

DAVID: So to finish in that context, and you've touched on this, there are two possible fundamental reforms that we might undertake. One is a political reform, which is of the electoral system. Parliament can do that. And indeed we had a referendum on that, and the people said no, but there was only one and there are lots of other options out there, and indeed you could run that referendum very differently. The other might be to codify the Constitution. Now the thing that is always said for First Past the Post is that it keeps the populists out. I mean that's not the only thing that is said for it, but one of the things that is said for it is that UKIP, or whoever it is, gets a large number of votes. UKIP’s only ever had two MPs and only one that's ever won an election. The problem with it is it builds up the pressures because then it’s just fundamentally unfair. So that's one way we can do it. Another way we could do it is for future referendums to codify a set of rules, to have things that.. You don't just make it up each time you legislate for the referendum what the rules are, there are fixed rules. So it’s false choice but I'm going to make you pick one. Which one would you do first?

ALISON: First I would reform the voting system because I think that is more reflective of the deeper tensions of the feeling that often people feel like they throw their votes away. Although I can see this might open the door for populist movements. I think for me the real danger is when you get rid of deliberation, rather than necessarily allowing these populist movements that we might want to criticise, as having some form of representation. I think if you move the voting system and have more aspects of a facilitation of deliberation, I think that is better. The second reason for choosing that over reforming the constitution is I don't think necessarily having a written constitution will be the deciding point as to as to how you deal with the dangers of populism. You have populist movements in systems with written constitutions. So what's important is what you put in there. I don't think the time is right at the moment to deliberate about what goes into that constitution. But I do think eventually, as a second stage, we need to go through the process of thinking about what our Constitution is and how it works. And whether that leads to a written constitution or not, for me it's kind of not the main point. For me the real issue is having this discussion and this deliberation about why we have parliamentary sovereignty. Why do we think it's valuable? Why do we have representative governments? Why do we think that's valuable? Why do we think we want a pluralist society? What is valuable in having multicultural societies? I think those discussions, for me, are more important than whether we entrench a constitution or not.

DAVID: And is the implication of that that if we were to codify the Constitution, it would have to be done in assembly or with a formal representation that was not parliamentary. As it were, this is something we need a convention, essentially.

ALISON: Absolutely I'd want to go through a constitutional convention process. I don't think it should be done by parliament alone, no. 

DAVID: Alison Young is co-editor among many other books of a recent volume called, The UK Constitution after Miller: Brexit and Beyond. The next guide is to ideas of European Union before the EU: How we got from the 18th century to where we are now. My name is David Runciman and we've been talking politics.