Two Approaches to Constitutional Vulnerability

By: David Klemperer

Over the past few years growing concerns have been expressed about weaknesses in the United Kingdom’s constitutional arrangements. In response to the upheavals generated by Brexit, the draconian measures necessitated by the Coronavirus pandemic and the behaviour in office of now-discredited former Prime Minister Boris Johnson, scholars and activists of varying stripes have highlighted ways in which the political system is open to abuse by bad actors. 

The Constitution Society in particular has published important contributions by (amongst others) Andrew BlickPeter Hennessey, and Vernon Bogdanor, all calling attention to the vulnerability of the UK constitution in the face of populist political forces and potentially unscrupulous governments. Moreover, in March of this year, the fourth report of the UK Constitution Monitoring Group pointed to a “continuing degradation of constitutional standards”, and identified over 100 incidents of concern.

Far from being marginal or confined to academia, such concerns are increasingly reflected in wider public discussion of politics. However, the increasing consensus on constitutional vulnerability perhaps obscures some conceptual disagreements as to the source of the problem. In this blog, I will argue that there are two distinct ways of both understanding and addressing the UK’s constitutional vulnerabilities. By setting out each in turn, I intend to disentangle ideas and approaches that are frequently conflated, and thus make clear a key question facing political reformers.

The “constitutional” approach

The first way of understanding the vulnerabilities of the UK’s political system is to focus on the absence of the constitutional checks on the power of parliamentary majorities. Adherents of this “constitutional” approach identify inherent dangers in the principles of “parliamentary sovereignty” and Parliament’s “legislative freedom” – the doctrines according to which parliamentary majorities are able to legislate as they see fit, with no constitutional limits other than that they cannot bind their successors. Since governments normally command parliamentary majorities, critics see these principles as empowering governments to a dangerous degree, and thereby leaving few means by which a determinedly unscrupulous Prime Minister can be prevented from disregarding constitutional norms or violating democratic standards. In this conception then, it is the absence of legal and constitutional constraints on the legislative power of parliamentary majorities that leaves constitutional conventions insufficiently protected and the political system vulnerable to abuse. 

Although reinforced by recent events, such concerns are longstanding. In 1976, the Conservative politician Lord Hailsham famously argued that parliamentary sovereignty had rendered Britain an “elective dictatorship” – a formulation that retains its currency in constitutional parlance. For Hailsham, this “elective dictatorship” centralised power in the hands of the Prime Minister, who faced few practical checks on his or her conduct. To rectify the situation, he argued for constraints on Parliament’s legislative freedom, and in particular for a codified constitution. Today, political reformers who share Hailsham’s broad diagnosis advocate a variety of different methods for constraining the power of parliamentary majorities. Recent proposals include the political and legal entrenchment of specific constitutional statutes, the suggestion of a new constitutional body to provide a check on governments, plans for a strengthened upper house with new constitutional powers, and, of course, ideas for producing an entirely new codified constitution

Such proposals tend to be met with a standard set of criticisms: constitutional conservatives argue that any constraints on parliament’s legislative freedom would not only threaten the basic principles on which UK politics operates, but also undermine the democratic nature of the political system by impeding the wishes of the electorate. Defenders of existing constitutional arrangements further argue that imposing constraints on parliamentary majorities would risk generating gridlock, by establishing additional veto-players within the political system. Although criticisms of these kinds are frequently exaggerated or misleadingly deployed when it comes to specific proposals, the basic idea that constraints on the legislative freedom of elected parliaments carries a democratic cost is not one that should be too hastily dismissed. 

The “electoral” approach

An alternative approach to constitutional vulnerability would root the problem not in the powers of parliamentary majorities, but in the way in which such parliamentary majorities are elected. Specifically, this “electoral” approach focuses on the fact that the First-Past-the-Post (FPTP) electoral system used at general elections tends to produce single-party parliamentary majorities, despite no party having won a majority of the vote since before the Second World War. In this view, it is these single-party majorities derived from FPTP, rather than the doctrine of parliamentary sovereignty per se, that centralises power in the hands of the prime minister and that produces over-mighty governments. In this “electoral” understanding of the UK’s constitutional vulnerabilities, the danger does not primarily lie in the lack of constitutional constraints, but in electoral majoritarianism. The risk is not that the UK system could potentially enable a “tyranny of the majority”, but that it already allows for a “rule of the minority”, in which electoral coalitions representing only a narrow slice of public opinion are able to wield disproportionate authority. It is only this that creates the conditions in which an extreme or unscrupulous faction could succeed in obtaining and misusing power. 

From this perspective, the solution is not to impose constitutional constraints, but to impose greater electoral constraints through replacing FPTP with a more proportional electoral system. This would increase the electoral threshold for obtaining a parliamentary majority, and make it significantly harder for any single party to do so. In practice, elections would most often produce coalition governments, in which the parties in government could be expected to act as political checks on each other. This would limit the centralisation of power in the hands of the Prime Minister, and reduce their ability to flout constitutional convention for either personal or partisan advantage. 

Rather than constraining the formidable powers of a House of Commons majority, the “electoral” approach would simply make them harder to obtain. It would thus not eliminate the unchecked power that the “constitutional” approach identifies as a danger. However, while this may render it uncertain as a guarantee of constitutional propriety, it avoids the democratic critiques of constitutional conservatives, as it does nothing to impede the legislative ability of electoral and parliamentary majorities. 

Conclusion

These two approaches to the vulnerabilities of the UK political system are of course ideal types. In practice, few people subscribe exclusively to either one or the other approach, and most political reformers advance some combination of elements from the two approaches described. As a result, they are all too frequently conflated, and the theoretical differences between them ignored. By both advocates and critics, constitutional and electoral reform are lumped together as efforts to constrain and disperse power, with insufficient consideration for the potential differences in approach they could reflect.

As this blog has hopefully shown however, there are distinct causal stories at play – one emphasising the concentration of sovereignty, and another pointing to electoral majoritarianism. “Constraining the power of parliamentary majorities” and “making the acquisition of a parliamentary majority more difficult” are therefore different projects, responding to different perceived problems. Although they can easily be combined, they cannot be straightforwardly conflated, and there is no reason they must necessarily be pursued in tandem. When pushing for change, political reformers should reflect on precisely which problems they are trying to address and adopt their proposed solutions accordingly. 

David Klemperer.

David Klemperer is currently a PhD student in History at Queen Mary University of London. He was previously a Research Fellow at the Constitution Society, and 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.