The Elective Dictatorship

In his 1976 Richard Dimbleby lecture at the BBC, the late Quentin Hogg (later Lord Hailsham) warned against the dangers of the British state being captured by an elective dictatorship. He rightly noted that the only limitations on the sovereign will of Parliament are political and moral, not legally binding. Alluding to the UK’s political constitution, he pointed out that the only limitations on this power “are found in the consciences of members, in the necessity for periodical elections, and in the so-called checks and balances inherent in the composition, structure and practice of Parliament itself”.

This power to which Hogg was referring is of course the Sovereignty of Parliament; the foundational principle of British constitutional law which, although the subject of debate, remains, in theory at least, absolute. Hogg was more concerned with what he perceived to be the anti-democratic nature of governments with slim majorities being able to control Parliament (not least the Wilson government at the time of his lecture). However, it is suggested that his borrowed term, “elective dictatorship”, is an apt description of the British constitution from top to bottom immutably for all time, not a fleeting epithet applying to one government at a particular point in history.

The British state is one of the most centralised in the Western world. All ultimate sovereign power is concentrated in and exclusive to the singularity of the Sovereignty of Parliament. Like a democratic black hole, all power, control, and checks and balances in the body politic are swallowed up by the Crown-in-Parliament. Nothing can escape its authority, and no one can challenge it.

One may argue that in a parliamentary democracy, this is the way it ought to be. A democratically elected legislature with supreme and unassailable law-making power should be sacrosanct (leaving aside the absurdity that is the House of Lords). The trouble with this theory is that in practice the chokehold the government has on Parliament means that Parliament’s will is effectively the government’s will and a British Prime Minister with an overall majority in the House of Commons has in effect untrammelled constitutional power. In a time when the thought of a government with a conscience smacks of farce and when the hope of a Prime Minister following any moral code whatever (other than ruthless self-interest) looks tragic, an elective dictatorship has taken root and will

inevitably lead to the withering of the British state. It is not now enough to trust the morals and consciences of politicians, if it ever was. Major surgery is required.

Prorogation, Parliament and the Rule of Law

Even when the Prime Minister does not have Parliament in the bag, our democracy remains under threat. The lack of a codified and legally entrenched constitution and the inherent institutional weaknesses in our system of government make it uniquely vulnerable to abuse and eminently amenable to the autocratic tendencies of some our contemporary political leaders. We need not look far for examples.

Amid the night fog of the Brexit uncivil war and the smell of napalm in the morning, the current tenant of No. 10 Downing Street, Mr Johnson, unlawfully advised the Queen to prorogue Parliament on a whim for an unprecedentedly-long five-week period during the autumn of 2019. Even in normal times, any state that allows the executive branch of government to arbitrarily suspend the democratically elected legislature when it feels like it would surely earn the colonial slur, “banana republic”. But it appears when it comes to the Mother of all Parliaments, not so much as an eyebrow is raised. We have a gentleman’s agreement, after all. Nonetheless, the autumn of 2019 was not normal times.

The UK was facing the most significant constitutional change in the last half century and arguably the most important political decision since the Second World War as it exited the European Union and mulled over its future relationship with the bloc. Parliament was deadlocked and in uproar as the UK hurtled towards a no-deal Brexit on the “do or die” Halloween deadline. The Leader of the Opposition considered tabling a motion of no confidence in the government. Johnson said he would simply ignore it and refuse to resign, hold the nation hostage, crash out of the EU without a deal, and call an election the following day. MPs threatened to pass legislation preventing a no-deal outcome. Incredibly, the man who is now responsible for the constitution, Michael Gove MP, suggested the government might ignore the law and crash out anyway. Not one gentleman was to be seen.

Thanks to the royal prerogative, however, Johnson did not really have to worry about democratic process getting in his way; he couldn’t win over Parliament so instead he muzzled it by shutting it down. Happily, in Miller and Cherry (2019), the Supreme Court set the record straight and ruled Johnson’s advice to the Queen to prorogue was unlawful. But too little too late for the jeering and booing hordes of MPs who were forced to chaotically vacate the Palace of Westminster to renditions of Scots Wha Hae and Calon Lan.

Still, it’s not the first time the UK Government has acted unlawfully in exercising the amorphous royal prerogative. This is old hat for the current crop. The administration of Theresa May attempted to circumvent Parliament by triggering Article 50 TEU to commence the Brexit withdrawal process using prerogative powers, bypassing the need for any parliamentary vote or scrutiny. Thankfully, again, the Supreme Court in the Miller case (2017) reminded the government that Ministers of the Crown are still accountable to Parliament and primary legislation was therefore required. Phew. Unfortunately, the case presents other problems for the constitution. More on that later.

The abuse of prerogative powers, the shutting down of Parliament, Prime Ministerial threats to refuse to resign, and suggestions that ignoring the law may be legitimate by members of the Cabinet are only the tip of the iceberg. More recently, the Northern Ireland Secretary, Brandon Lewis MP, admitted to the House of Commons that the Internal Market Bill as introduced would break international law, but “only in a specific and limited way”. Astonishingly, and shortly before resigning, the Advocate General for Scotland attempted to argue that it did not breach the rule of law. It was a very odd interpretation. Apparently it’s acceptable to break the law so long as you do it in a way that is limited and specific. I’ll remember that one.

All credit where due, in a sense Lewis was right. The Bill would have given Ministers powers to make regulations about state aid and customs procedures for trade from Northern Ireland to Great Britain, and would allow Ministers to make regulations inconsistent with the UK’s obligations under the Withdrawal Agreement. The existence of those powers was a breach of Article 4 of the Withdrawal Agreement, which provides that the UK must use primary legislation to give full effect to the Agreement in domestic law. However, unless the powers were actually used, the UK would not be in breach of the state aid and customs provisions of the Northern Ireland protocol.

Notwithstanding this, the Bill did break international law and laid the foundations for more serious infractions that were not so specific or limited. If the powers under the Bill had been used to override the state aid and customs provisions of the NI protocol, these would have been breaches of substantive obligations undertaken by the government, which the EU may have considered to threaten fair competition and the integrity of the single market. Moreover, even breaking the law in a “specific and limited way” was hugely damaging. The UK has traditionally stood up for international law on the world stage. Calling into question the UK’s commitment to the rules-based order, even in the abstract or in principle, and even over a “limited” issue, undermines democracy and the rule of law at home and abroad.

Existential Crisis

The over-centralisation of power in an elected dictatorship in Westminster, the abuses of the royal prerogative, and the cavalier disregard for the rule of law are all merely symptoms of a much deeper malaise. The post-imperial relic that is the British state faces an existential crisis. As the largest set of elections in living memory approach in May 2021, the prospect of a second Scottish independence referendum is back on the horizon and support for independence sits comfortably and consistently above 50% of voters. It is hardly surprising that support for independence has increased. Not only is the UK leaving the EU which in itself is damaging enough to the case for the Union, the elective dictatorship in Westminster has treated the devolved nations with contempt throughout the Brexit process.

Turning our attention back to Miller (2017), while the Supreme Court corrected the abuse of the royal prerogative, the court also held that the Sewel convention has no legal effect, nor is its use or non-use subject to judicial review. Reflecting the Sovereignty of Parliament discussed earlier, the court said that the convention is a rule of political practice, not a rule of law, all this despite the convention being enshrined in the Scotland Act 2016. This means that the UK Parliament is able to legislate even where the legislative consent of the Scottish Parliament is withheld. The UK is in a bizarre position, therefore, where Acts of Parliament may be unconstitutional but nevertheless still lawful. The effect of this is that the devolved nations have had no real say in the Brexit process from the start.

But that was just beginning. The UK Government has sidelined the devolved nations throughout the Brexit negotiations. In June this year, the Committee on the Future Relationship with the European Union noted that there has been just one meeting of the Joint Ministerial Committee (EU Negotiations) since the UK left the EU on 31 January 2020. The Committee concluded that the JMC (EN) is not being used as a serious forum by the UK Government and that the devolved administrations have had no genuine opportunity to input into the overall strategy of the Brexit negotiation talks. When it comes to the repatriation of powers too, the elective dictatorship in Westminster has bullied the devolved nations and dictated the way forward.

Rather than powers currently held by Brussels falling within devolved competence being repatriated on a direct route to the devolved nations, initially the plan was that some of those powers were to be pocketed by Westminster in a cynical power grab, with no consultation with the devolved administrations. Now, the proposal appears to be that the powers will be relinquished by Whitehall and given to the devolved nations but with a caveat: the Internal Market Bill. The principles of mutual recognition and non-discrimination under the Bill mean that regulations from one part of the UK will be recognised across the whole of the UK and that there will be a level playing field for companies

trading anywhere in the UK. There may also be the creation of an independent body to monitor regulations passed in the four home nations to ensure that they do not diverge in a way which would create barriers to trade.

However, the devolved nations are concerned that such provisions may lead to a lowering of standards in certain policy areas including in food and drink and the environment against the will of the Scottish Parliament. An example would be the minimum pricing on alcohol in Scotland which may be considered a barrier to trade under the Internal Market Bill. While this would all be subject to Sewel, as we have seen, this does not provide a real constitutional safeguard. In the absence of institutional architecture to resolve disputes and reach collegiate decisions, this looks to be a sure-fire route to further constitutional collisions.

A New Settlement

All of the above demonstrates the agonising need for radical constitutional reform and democratic renewal to redistribute power across the country and to ensure better governance across the UK. Power is hoarded in an elective dictatorship in Westminster, our lack of a codified and legally entrenched constitution makes our democracy and the rule of law especially vulnerable to attack, and the devolved nations need greater powers and a stronger voice at Westminster, perhaps through a Senate of the Nations and Regions and a Council of Ministers. The English regions also have been bullied and marginalised by Westminster for too long, as has been evident in the recent handling of the COVID-19 pandemic. Any new constitutional settlement must also therefore address England and its place in the UK. Failure to act now could spell the end for the United Kingdom.

Seán Patrick Griffin December 2020