More Bonaparte than Bagehot 

By: David Klemperer

Review of Richard Johnson and Yuan Yi Zhu, Sceptical Perspectives on the Changing Constitution of the United Kingdom (Bloomsbury, 2023)

It is by now a truism that the Brexit referendum of 2016 brought constitutional issues to the fore of UK politics. In the turmoil that followed the public vote to leave the European Union, relations between government, Parliament, electorate, and judiciary came under substantial pressure. Such pressure generated ad hoc constitutional innovations, as well as increased calls for more thoroughgoing reform of the UK’s political system. 

It is in response to such innovations and calls for reform that a new Bloomsbury anthology – Sceptical Perspectives on the Changing Constitution of the United Kingdom – has been published. Co-edited by Queen Mary American politics lecturer Richard Johnson and Oxford international relations scholar Yuan Yi Zhu, this volume brings together essays from twenty contributors, ranging from current and former ministers and parliamentarians, through constitutional historians and political theorists, to activist law academics associated with a radical branch of America’s conservative legal movement. Professing their admiration for the UK’s historic constitutional system, the editors’ stated aim is to provide a corrective to a perceived pro-reform bias in academic discussion of the constitution, and to defend what they (drawing on the late legal theorist J.A.G. Griffith) term “the political constitution”.

Such a corrective is welcome: constitutional scholars are as liable as anyone else to fall into groupthink, and the key strengths of UK’s historic constitution are worthy of reiteration: in the absence of constitutional “checks” and legal constraints, parliamentary sovereignty (combined with the primacy of the House of Commons) minimises the number of veto players, gives elected majorities wide scope to legislate freely, and ensures key decision-makers are democratically accountable. As Johnson and Zhu rightly argue therefore, the existing constitution has important democratic advantages. Constitutional reforms are not “self-justified on their face”, and any that would risk undermining the basic principles of the system require – at minimum – careful scrutiny. 

However, the essays in this book do far more than sound notes of caution. Rather, taken as a whole, and framed by Johnson and Zhu’s introduction, the volume amounts to an articulation and defence of a specific constitutional outlook – one forged in the crucible of Brexit. 

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In their introduction, Johnson and Zhu claim that “This is not a partisan book”, citing their membership in opposing political parties. However, despite their differing party allegiances, the editors (like many of the contributors) are both avid partisans of Brexit, and their shared partisanship on this front does much to shape the contours and content of their volume. It is no accident that the only governments whose constitutional policies are explicitly defended are those that have been in office since 2016, nor that the only contribution focused on Northern Ireland is Baroness Hoey’s tirade against the Good Friday Agreement (a Brexiteer bête noire). Moreover, the book’s contributors are hardly squeamish about identifying their antagonists (whether “opportunist opponents of Brexit”, “Irish Nationalists”, “the electoral reform lobby”, or simply the vague spectre of “progressive liberalism”) and some of the writing at times risks slipping into the culture-war timbre of the media outlets to which the editors frequently contribute.  

What then are the defining features of this Brexiteer constitutional outlook? The first is a scepticism towards the devolution introduced by New Labour, and to the current relationship between devolved institutions and Westminster. In nuanced contributions, former Vote Leave Chair Gisela Stuart and legal researcher Joanna George argue that the existing devolution settlement is ill-constructed for a post-Brexit UK, while constitutional historian Sir Vernon Bogdanorcritiques the largely unplanned nature of the devolution process, and Edinburgh researchers Peter Reid and Asanga Welikala sensibly urge unionist politicians to shift from a posture of ad-hoc “secession diplomacy” to one of pro-active “Union statecraft”. In her rather less nuanced contribution on Northern Ireland, Hoey disappointingly neglects to consider the important question of what constitutional arrangements might be necessary in the context of a divided society (a context, crucially, in which a majoritarian “political constitution” might prove disadvantageous), instead choosing to spin a betrayal narrative on behalf of the Unionist community.

Most pertinently, in his chapter on Parliament’s “legislative freedom”, Richard Ekins takes aim at claims that the Westminster Parliament has abnegated its right either to legislate for areas of devolved competence, or to modify what those areas of competence are, asserting instead the continued primacy of parliamentary sovereignty. Such arguments are reflective of recent battles between Westminster, Holyrood, and Cardiff. During the Brexit process, the devolved Scottish and Welsh administrations both unsuccessfully attempted to claim that the Sewel Convention (that Westminster will not normally legislate on matters of devolved competence) was a justiciable constitutional statute. In the last year, the government in Westminster has (in part on the advice of one contributor to this volume) invoked Section 35 of the Scotland Act to veto a piece of controversial devolved legislation, while prominent Conservative grandee Lord Frost has (in two of his frequent “rare public interventions”) called for devolution to be reversed entirely. 

A second feature of the constitutional outlook represented by this volume is a scepticism of judicial authority, and a hostility to judicial encroachment into politics. In this regard, the volume follows in the wake of right-wing think tank Policy Exchange’s Judicial Power Project (with which several of the authors are involved), Lord Sumption’s 2019 Reith Lectures, and the manifesto on which the current government was elected. Indeed, within the volume Sir Robert Buckland (Boris Johnson’s Lord Chancellor) defends what he saw as the Johnson government’s efforts to “strike a balance in our constitutional arrangements” over the question of on what issues courts should be adjudicating. Additionally, Richard Ekins (the head of Policy Exchange’s Judicial Power Project) complains that New Labour’s Human Rights Act created an “unconstitutional convention” in which MPs are expected to legislate in compliance with European Court of Human Rights judgements, distorting deliberation and restricting legislative freedom in practice. In their own opening essay, Johnson and Zhu point to the example of America to paint a disturbing picture of a potential future in which constitutional reform leads to “judges ruling against democratically enacted social legislation”, suggesting (somewhat unfairly, one might think) that today’s reformers would ultimately be willing to sacrifice the ability of Parliament to pass laws in favour of workers or racial minorities. 

It is far from clear, however, that this alarming vision (which is perhaps primarily reflective of the North American preoccupations of both Johnson and Zhu) bears much resemblance to the UK reality. Indeed, as Carol Harlow’s measured essay makes clear, judicial encroachment into UK politics has, although real, been highly circumscribed in both instances and scope. She cites the Evans Case (in which the Supreme Court prevented the Attorney General from blocking a Freedom of Information Request relating to Royal interference in politics), the Privacy International Case (in which the Supreme Court followed Parliament in establishing a right of appeal against the Investigatory Powers Tribunal), and the UNISON Case (in which the Supreme Court struck down a ministerial order imposing staggeringly high fees on employment tribunal claimants on the basis that it restricted access to justice and interfered with the application and enforcement of parliamentary legislation). Although these cases were a new departure, Harlow notes that the replacement of Lady Hale by Lord Reed as President of the Supreme Court has brought about a “reversion to restraint” in the Court’s approach, meaning that such judgements are unlikely to serve as “a benchmark for the growth of judicial power”.  

Tellingly, the key cases cited both in the introduction and across the volume as examples of judicial encroachment are Miller I and Miller II – the successful suits brought by anti-Brexit activist Gina Miller that secured (respectively) the right of Parliament to a meaningful vote on any Brexit deal, and the reversal of Boris Johnson’s unlawful prorogation of Parliament. The primary “threat” currently posed by judicial power thus appears not to be unelected judges usurping the role of Parliament, but Parliament itself being free to either pass or reject legislation against the wishes of the government.

Indeed, despite the opening essay’s rhetoric of parliamentary sovereignty, the volume as a whole is shot-through with hostility towards parliamentary power – and in particular as it manifested itself during the Brexit process. With the exception of Hayley Hooper’s balanced critique of increasing ministerial use of delegated legislation, parliamentary accountability is largely treated as troublesome, and parliamentary authority as a constitutional problem. In a carefully-argued contribution, Robert Craig contends that the Fixed-Term Parliament Act upset the delicate balance of power between legislature and executive by removing the ability of the prime minister to call an election if faced with an uncooperative Parliament, and he points to the assertive behaviour of MPs during the Brexit process as proof of the problems this can bring. For Craig, the repeal of the FTPA is to be celebrated, and he rejects the idea that calling an early election should require a parliamentary vote. In a similarly vein, Tony McNulty lambasts the Wright Committee reforms to the House of Commons that were introduced under Gordon Brown’s premiership to empower backbench MPs. For McNulty, while deliberation and scrutiny is important, Parliament is above all a “legislative factory”, and “primacy needs to be given to the facilitation of the government’s ability to govern”. He therefore sees proof of the reforms’ iniquity in the successful efforts by backbench MPs during the Brexit process to seize control over the parliamentary timetable from the government.

Harvard political theorist Richard Tuck would therefore appear to speak for many of the contributors to the volume when he opines that Parliament’s efforts to shape the Brexit process were both “farcical” and constitutionally improper. Dismissing “The idea that Parliament is a deliberative assembly” as “fantasy”, Tuck even goes so far as to suggest that Parliament has “forfeited the right to decide our constitutional arrangements”. Ultimately, it is the authority of the executive, rather than of Parliament, that the editors of the volume are keen to defend. In the chapter on electoral systems therefore, Jasper Miles defends First-Past-the-Post on the (increasingly empirically shaky) grounds that it produces clear parliamentary majorities, since this majoritarianism, it is argued, generates powerful executives free from the constraints of parliamentary wrangling. 

This anti-parliamentary attitude is further reflected in the fundamental constitutional innovations that the book chooses to exempt from sceptical examination. Over the past few decades, parliamentary democracy in the UK has been increasingly challenged by plebiscitary versions of democracy, both in the form of referenda (whether over devolution, electoral reform, Scottish independence, or Brexit), and through the “presidentialisation” of politics giving rise to claims of personal electoral mandates by party leaders and prime ministers. Indeed, it is in many ways as a product of the tension between these two forms of democracy that we can best understand the political and constitutional turmoil that has defined much of the last decade – including many of the parliamentary and judicial developments this volume laments. However, despite citing Bogdanor’s distinction between the “old” and “new” British constitutions, which includes referenda as a key feature of the latter, the editors (perhaps influenced by their enthusiasm for the outcome of the 2016 vote) pointedly choose to largely eschew discussion of the new plebiscitary features of British politics. The volume therefore contains startlingly little reflection on how referenda have impacted the broader workings of the celebrated “political constitution”, and no discussion at all of the important questions (on which the Constitution Unit in particular has produced valuable work) relating to the processes by which referenda should be called and conducted, and their outcomes put into effect.

In fact, in an almost comedic display of motivated reasoning, Ekins attempts to blithely dismiss the idea that referendums interfere with Parliament’s legislative freedom. Whereas he argues that passing a Human Rights Act that encourages MPs to consider the rights-compatibility of legislation was “foreclosing parliamentary deliberation” (bad), Ekins claims that in legislating for a referendum on an (ill-defined) withdrawal from the EU and promising that the result would be implemented, Parliament merely “exercised its freedom responsibly” (good). By contrast, those parliamentarians who interfered with the Brexit process “wrongly sought to leverage Parliament’s freedom to legislate into an absolute freedom from constraint” (a distinction that Ekins would have us believe to be meaningful). Tuck meanwhile takes it for granted that “referendums, at least on constitutional matters, are going to be an accepted feature of British politics”, and even claims that the logic of the UK constitution should be seen as having a plebiscitary, rather than representative, basis. Parliamentary elections, he suggests, should be treated as de facto referenda: “The question to be put about any proposed system of representation in a modern democracy must be, how far does it resemble a referendum?”. 

In the clash between Britain’s historic parliamentary democracy and the new plebiscitary variant that has emerged, it is therefore clear which side this book takes. It would appear that some constitutional innovations are “self-justified on their face” after all, and do not require sceptical consideration. Indeed, despite their fondness for lauding the constitutional wisdom of post-war Labour prime minister Clement Attlee, the editors obviously have little regard for his famous statement that he “could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum”. It would of course be eminently fair to argue that Attlee’s statement applied to a different time, but – in a volume that proclaims its scepticism of constitutional change – this is a case that should be explicitly made. Likewise, there is no overt discussion of the role of member ballots within political parties, which, by subjecting MPs to external constraint in their choice of Prime Minister, have (like referenda) profoundly impacted the processes of representative and responsible government, as demonstrated by the premierships of both Johnson and Liz Truss. (Tuck’s theoretical disquisition into representation, in which he lauds “mandation” as a democratic practice, suggests this may be viewed as a positive.) One need hardly be an absolutist opponent of either innovation to find such lacunae striking.

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In all, what the book ends up putting forward is a constitutional vision more closely resembling Bonaparte than Bagehot, in which parliamentary representation is subordinate to both plebiscitary democracy and the untrammelled authority of the executive. (It is thus perhaps notable that two of the contributors – Conor Casey and Michael Foran – are intellectual acolytes of Adrian Vermeule, the illiberal American theorist of Schmittian sovereignty and “unbound” executive power.) This is not the old British constitution, but rather a “Brexit constitution” – one whose constituent act of sovereignty was the 2016 referendum, whose outcome the government should have been empowered to interpret and implement in any way that it saw fit, with minimal legislative involvement.

This kind of Brexiteer constitutionalism is far from being an academic curiosity. Rather, in its assertive defence of executive authority, its uncritical attitude towards referenda, its disdain for devolved autonomy, and its hostility towards parliamentary power, the arguments of this volume reflect to a striking degree the constitutional statecraft adopted by UK governments since the 2016 referendum. (Tellingly, in the acknowledgements, the editors thank Nikki Da Costa – legislative affairs manager for both Theresa May and Johnson, and architect of Johnson’s unlawful prorogation – for her input.) Moreover, executive disregard for the rights and role of Parliament in particular remains strikingly evident today: even as amended, the Retained EU Law Bill is set to hand ministers yet more sweeping powers to make as-yet-unspecified delegated legislation with little parliamentary oversight, while the Illegal Migration Bill has been rushed through the Commons with unprecedented levels of haste. Some recent Conservative ex-cabinet ministers now even take the extreme view (advanced in this volume by Tuck) that Parliament should lose its freedom to legislate on constitutional matters, and that any constitutional change must henceforth be approved by referendum.

In bringing together such an erudite collection of academic essays that largely reflect this strain of thinking, Johnson and Zhu have provided an admirable public service. By setting out so clearly and cogently some of the intellectual underpinnings for the constitutional politics of recent governments, their book will doubtless enrich discussions of the constitutional issues and debates that have emerged over the past decade in particular. Moreover, many of the individual contributions (such as Gillian Peele on ethical standards, John Bowers on public appointments, or Conor Casey on the role of the Attorney General) are incisive interventions in their own right, drawing attention to underdiscussed aspects of the UK’s constitutional system. 

Nonetheless, it is a shame that the editors’ polemical approach has ultimately prevented them from casting their sceptical eye more even-handedly over the constitutional developments of the past decades. Preserving the great strengths of the UK constitution while adapting it to new circumstances means carefully balancing between Parliament, executive, and judiciary, between Westminster, Holyrood, Cardiff, and Belfast, between pluralism and majoritarianism, and between plebiscitary and parliamentary democracy. Johnson and Zhu are right to argue that gung-ho reformers often get the balance wrong, and that we should be wary of steering too heavily in the direction of legal constraint at the expense of democratic power. However, their own substantive commitments to Brexit, and their inflated fears of a wholesale importation of American-style judicial supremacy, have led them to put forward a constitutional doctrine no less unbalanced than that of the reformers they critique. In particular, celebration of the UK’s “political constitution” sits uneasily with antipathy towards its central institution. It is Parliament, not the executive, that rightly remains the primary locus of democratic sovereignty in this country. It is legitimate to want to protect that sovereignty. It is wrong to think that one can do so at the expense of Parliament itself.

David Klemperer.

David Klemperer is currently a PhD student in History at Queen Mary University of London and a contributing writer for the Constitution Society. He was previously a Research Assistant at the Institute for Government.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.