27th August 2025
Only good fortune has prevented previous governments from misusing our constitutional arrangements more than they did
The constitution of the United Kingdom provides for two – perhaps three – super-powers for governments with a firm majority in the House of Commons.
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The first super-power is the doctrine of parliamentary supremacy.
(Some call this ‘parliamentary sovereignty’ though this blog tends to avoid that phrase, as parliament is only sovereign in its capacity to pass primary legislation, and not in other ways. Parliamentary resolutions and other motions have no real outside force, and secondary legislation can be quashed by courts.)
Under this doctrine an Act of Parliament – that is, a Bill with Royal Assent and which is, when applicable, passed in accordance with the Parliament Acts – cannot be gainsaid by anyone anywhere.
When the United Kingdom was in the European Union a court could (and did) strike down an Act of Parliament, though the polite fiction was that was because the European Communities Act had priority over legislation to the contrary. But since Brexit, that is no longer exception to the doctrine.
A government with a firm majority in the House of Commons can (even if with a year’s delay under the Parliament Acts) force through the House of Lords any legislation it wants.
Yes, there are conventions – but conventions can be freely discarded and if, say, a Reform Party manifesto was explicit in what it wanted to do, the Salisbury Convention, for example, would not even apply.
Under the doctrine of Parliamentary Supremacy, a Reform Party government could do exactly what it wanted with primary legislation.
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The second super-power is the so-called Royal Prerogative.
This means the Prime Minister of the day can exercise certain powers with legal effect, free from any statutory basis.
A Prime Minister can sack ministers (and perhaps others) and make or break treaties and grant pardons and so on,
The main limits to this power are that the Royal Prerogative cannot be extended to new areas and that if there is a clash with an Act of Parliament then the legislation has priority.
There are also other legal limits such that it needs to be exercised “rationally” and fairly in certain circumstances, and it cannot be used to make fundamental changes in the law – but in practice the courts are very deferent to the Prime Minister.
In theory this is a power of the Crown, but in constitutional practice the power is exercised by the government of the day.
And these powers of the Royal Prerogative will be at the disposal of a Reform Party government.
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The possibly third constitutional super-power is the sheer range and wealth of discretionary powers of the government not under the Royal Prerogative but already existing under perhaps thousands of legislative provisions.
Some of these provisions under Acts of Parliament even allow ministers to change the law by ministerial discretion, as well as to issue statutory instruments and other instruments (such as statutory guidance) with legal effect.
Every successive government has added more of these provisions, even if they complained about them in opposition.
And it would be open to a government under the first constitutional super-power – the doctrine of parliamentary supremacy – to add even more of these powers
One suspects various “think-tanks” are already collating the discretionary powers that already exist, ready to arm – DOGE-style – an incoming radical and illiberal government.
Such an incoming government would not need to break the law – for the law already will provide almost all the powers such a government could want.
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That no previous government has used these super-powers to the hilt is because of one thing alone.
Luck.
The governments of Boris Johnson and Elizabeth Truss, for example, were too incompetent to see through many of the radical notions of some of their advisors and cheerleaders.
Fortunately Johnson’s and Truss’s hubris met a constitutional nemesis, and the body politic spat them out of office.
But we will not always be so lucky.
As with the passage quoted on this blog a few days ago about crushes in football stadiums, those nominally in charge will not always save us.
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The potential for abuse by a government with a firm majority has long been spotted by observers.
In 1929 the then Lord Chief Justice Lord Hewart published The New Despotism, warning of the implications of the doctrine of parliamentary supremacy.
In the 1970s the Conservative politician Lord Hailsham warned of an elective dictatorship – though he did nothing as Lord Chancellor in the 1980s to counter this threat.
We cannot say we have not been warned.
This has been a possible danger since the modern doctrine of parliamentary supremacy became constitutional conventional wisdom.
(Even the main theoretical proponent of parliamentary supremacy – A. V. Dicey – wanted to have referendums built into the legislative process so as to stop governments doing as they wished with primary legislation – though in his case his fear was Irish Home Rule.)
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So a competent, prepared and briefed incoming illiberal and radical government – either under the Reform Party or otherwise – would have nothing to stop them.
The only limits would be (currently) theoretical ones.
Perhaps the King could refuse Royal Assent – though no monarch has done this for three hundred years.
Perhaps the courts could impugn the doctrine of parliamentary supremacy – though one has to go back perhaps to the early 1600s to have authority for this now heretical view.
But that would be it.
The House of Lords would only have a power of delay.
Nothing would check or balance such an incoming government, short of the King or the courts doing something drastic, which in turn would no doubt lead to a constitutional crisis.
The gatekeepers and the “good chaps” and their counsel and practice of constitutional self-restraint would count for nothing, if any such people would be around at all.
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Those now in government and parliament know all this (or should know all this).
If an illiberal radical government obtains a firm majority at the next general election, and is competent, then as the law currently stands nothing would hamper them in what they want to do and much would help them.
But those now in government and parliament are doing nothing to limit the scope of such potential damage.
They know this could happen (or should know), yet they are doing nothing to stop it in advance.
And so all we have to rely on is one thing.
Luck.
Brace, brace.
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I think your fundamental analysis is quite correct, but I also think that the competence issue you identified with the Johnson and Truss governments would only be amplified in a Reform regime. Farage doesn’t strike me as in intellectual colossus, and the people he surrounds himself appear to be even dimmer. Heaven help us tho if an Orban or Erdoğan figure ever emerges in this country.
I don’t doubt that the public face of Reform would be pretty incompetent, at least until smart opportunists realised it was a quick route to power. But the Trump/Project 2025 experience shows that the behind the scenes people can be very wily and smart, making irreversible changes while hiding behind the buffoons in office.
We have Farage saying to petrochem companies “prepare for fracking!” (‘Welcome!’)
And we have the Reform-led Lancashire local council saying “no fracking here” (or ‘frack off!’)
A lack of consistency in the space of a day or two.
However, such inconsistencies can co-exist in a human mind.
Although to be fair, I think that such inconsistencies can be summed up with the phrase “OK for me but not for thee”. In the movie The Siege, Bruce Willis describes the law as “a broadsword, not a scalpel”, but what many people evidently want is the scalpel; i.e., the ability to saw that laws apply differently to me than they do to other people. (Some of us might call that selfishness.) The real problem, howeer, is the lack of checks and balances in the UK’s ad hoc, unwritten constitution.
Informative (if somewhat depressing), thank you. How did this work with the prorogation case under Johnson? I believe prorogation is a prerogative power (?), and yet the courts invalidated its use. Just because Johnson had lied to the Queen about why? Is there an angle there to inhibit prerogative use by future governments?
Prorogation is still a prerogative power. Its use has not been invalidated. The Supreme Court ruled for the first time that the use of prorogation is justiciable and must have a lawful basis, which the 2019 purported prorogation lacked.
Prerogative powers are residual and have gradually been repealed or replaced by legislation.
What could those now in government and parliament do to limit the scope of such potential damage? The doctrine of Parliamentary Sovereignty is firmly embedded, as you’ve said. Parliament can make any law it wishes except one that prevents a future Parliament from passing any law it wishes. I’m curious what you think could be done to temper this.
It’s more than just luck. Re-election of Parliament every maximum of five years has tended to restrain MPs from voting for laws that would be politically outrageous. If some party won a firm majority on a manifesto to abolish the monarchy and elevate its leader to the position of Galactic Emperor for life, then there would be no arguing that this is not what the people wanted.
Sourcing the government of the day from the legislature makes us a better democracy than the US, where the checks and balances have broken down and constitutionality seems to be on its deathbed.
One thing that is not mentioned is that no parliament can do anything which is binding on another. This in itself is a double edged sword as our rights have been eroded.
The Bill of Rights 1689 has been amended several times over the years and the meaning of certain texts within have been severely perverted by the courts “All grants and promises of fine and forfeiture of particular persons before conviction are illegal and void” being the main provision that springs to mind.
In general people seem to be okay with authoritarian regimes on the provision that authoritarianism supports their ideology; after all: Why wouldn’t they? Perhaps a reform government will make people think twice before supporting things like Facial Recognition and maybe it will even help them realise that if we banned public surveillance cameras when they were first introduced we would not be where we are now and not be heading where we clearly are.
I suspect that what you write is true only in a legislative sense, but even then there are limits.
As Prime Minister, Gordon Brown committed the UK to purchasing two Queen Elisabeth class aircraft carriers. When Cameron came to power – as the UK was in dire financial straits after 2008/9, his government tried to cancel the second vessel. It was quickly discovered that the contract Brown signed with the prime contractor contained clauses that would have cost the UK tax-payers more to cancel or pause the build rather than complete it – because they would get paid regardless.
Similarly, parliament under Blair took the UK in to the Second Gulf War, despite his administration exaggerating and/or completely fabricating claims of any danger that Iraq presented to the UK. Once the UK is at war with another nation, a new administration might have the legal authority to ‘stand down’, but any attempt to do so without a negotiation cessation of hostilities could just leave UK interests vulnerable to attack.
And as the United States may well come to learn in future… while an administration absolutely has the ability to unilaterally impose tariffs on allies and trading partners, those nations have no obligation to support the US at venues such as the United Nations, or join the US in future military campaigns.
As Peter Parker learned: “With great power comes great responsibility.”
On your first point I think that is Starmer’s tactic. He is trying to reintegrate with the EU and the bigger the EU penalty clauses are the better as far as he is concerned. What he is choosing to ignore is that he is handing Reform a much easier out. All they have to do is say “We are not paying your fines, we are not following your laws, the treaty is annulled and we are going back to trading on WTO terms”. I have to be honest, I do not think that whatever any government does in the meantime, as soon as Reform get in that is what they will do; And to be candid, considering Farage won the EU elections and won the brexit vote and Boris won the Tories a landslide on “getting brexit done”; Labour won with no return to the Single Market and Custom’s Union in their manifesto and now Reform are winning a huge number of councils all around the country, I think if he wins the next general election he has a pretty strong mandate to do so.
Reading between the lines I think you have hit on an important point though, and that is: Are Reform really going to be that different when they get hold of the reigns? The EU is ideology so I would say yes on that; on other issues I am fairly sure it will be just more of the same.
My own personal view is that one of the biggest problems the government has is that it is simply too big and tries to do too much at unsustainable cost. The nanny state has unsurprisingly crated several generations of dependants who are incapable of standing alone; the sorts of people who rely on sell by dates rather than their noses. I get the feeling that when it comes down to it Reform will do no more to resolve this issue than any other party because all those dependants are also voters; which is why no other party has grasped the nettle thus far.
I do think there is more inertia in the UK system than the US system though because of the nature of the civil service e.g. security of employment, very limited political appointments etc. Even Dominic Cummings struggled against “the blob” and – for good and bad – that’s not an untypical experience. Yes it’s true there has been a lot more turnover in permanent secretaries recently than typical. But the Truss administration’s experience of ejecting Tom Scholar from HMT worked so poorly that I do think that might discourage other similar moves.
The current government knows (or should know) that its days are numbered. Is there anything to stop it introducing proportional representation for the next election? That should prevent Reform from having the necessary majority, shouldn’t it?
At the last election, first-past-the-post worked against Reform. Proportional Representation would make it less likely that any party would have an over all majority, but also make it much more likely that Reform would have a significant number of seats in parliament thus becoming an essential partner in a coalition government. (Of course, that is something that might also happen under the current system). Whatever good reasons there are for introducing PR, I don’t think it is a good way to stop the rise of Reform.
Could a Sovereign intervene as in Australia – The Dismissal of 1975 when Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam?
One might call that a nuclear option!
Probably, yes. I remember lots of detailed arguments about it at the time, but I don’t recall any case made that the G-G didn’t have the power to do this sort of thing in certain circumstances (the arguments were about what circumstances). So I expect it would have to be the same with the monarch.
Having the wrong person in place at the time of a crisis, however, might make it more difficult for the institution of the monarchy to survive in the UK. In Australia, it led only to the termination of the tenure of that particular G-G.
I have both an observation and a question.
The observation is that whilst I would accept that we may not consider it a “superpower”, there is a fourth ability granted to the sitting government of the day, one that has become a more common practice this century, but which certainly dates back further: that of the Quango.
A quick Google search claims that in the 2022/23 financial year, “almost 60% of the UK’s day-to-day government spending was channeled through quangos”, with a budget of £353.3 billion allocated to these bodies. That’s quite extraordinary, given that, within the respective remit [cough] the head of each Quango is unelected, has no public oversight and is answerable only to the Minister who appointed them. Interestingly, from what little I’ve read, a Quango can be set up by a Minister, have a Head appointed and a budget allocated, all without direct public oversight.
The one concession that I found when looking at this before posting was that when a Minister wishes a Quango to have “powers” – i.e. a partial delegation of authority from the government – then that Minister has to go to parliament for approval. Of course, given the toxic nature of party-line politics in the UK, that simply means that the government of the day [unless a minority coalition] can do what they want with minimal oversight.
Is this a superpower? Perhaps not. But if it isn’t, then it’s an extraordinarily remarkable concentration of ordinary power in to an un-elected body that, by design, has minimal oversight.
A bit like the Division ICE, within the Department of Homeland Security, in the United States.
The question concerns DAG’s second point, where he writes,
“The second super-power is the so-called Royal Prerogative.
This means the Prime Minister of the day can exercise certain powers with legal effect, free from any statutory basis.”
My question here concerns the theoretical and has two parts. The first part is: what would happen if the Prime Minister took a draft law to the Monarch and requested Royal Assent and that Assent was declined? Does the Monarch have that authority? My history is a bit vague on the point – as I recall, King Charles I agreed to relinquish power to Parliament in return for funding for his war effort against Spain… but didn’t he then go on to dissolve parliament and rule without it? If he had the power to dissolve parliament then, does that still exist today?
The second part is: what would happen today if the present King Charles withheld Royal Assent from a proposed Act of Parliament? I’m aware that the House of Commons can, if required, use the Parliament Act to over-rule objections from the House of Lords, but I’m not sure if the powers of that Act go further than we’ve seen them recently used.
Such a government could pack the House of Lords and many public bodies. It could appoint ambassadors and high commissioners. It might attempt to pack the judiciary. It would have a free hand under the 1533 Act to advise (order) the King to appoint its nominees as diocesan bishops.
Thank you for this warning. Given that no Parliament can bind its successors it is very hard to see how the danger, which in a post Trump world is clearly real, can be averted. The failure more than 10 years ago to agree on reform of the House of Lords and a new electoral system risks coming back to bite us very hard.
The best we can hope for is that the dangers and discomforts of the situation in the US (I believe the only other major FPTP democracy) will be sufficiently highlighted to warn voters to avoid parties that look like going down this road.
And if that fails: well a democracy gives the voters what they want, and if they don’t want democracy then we are all ****ed anyway.
The lack of resilience in the UK constitution which you point up truly makes me shudder: what power would it have against a Farage or Trumpite type of party leader?
Interesting as always – and worrying, but it is may be arguable that the Scottish legal position is slightly different. “The principle of unlimited parliamentary sovereignty is a distinctively English principle with no counterpart in Scottish constitutional law” – Lord President Cooper 1953 SC 396.
It is indeed arguable – and it is a view with which I personally sympathise – but alas very many are on the other side of the argument.
And there is only so much that hallowed quotation can bear.
As always, an important post. I have a couple of comments.
First, you write “so all we have to rely on is one thing. Luck.”
This strikes me a wrong, or at least incomplete. It is true that the politicians that may come along may be dimwitted or so flawed in character that they will mess it up, and their particular character traits are a matter of luck. This is also true of particularly charismatic ‘good’ politicians such as Obama or Mandela. And of particular political relationships like Regan and Gorbachev; Paisley and McGuinness.
However, whether those good or bad people are elected is not a matter of ‘luck’ but about savvy political organising and above all *winning a political argument.* These are things that an electorate can influence and steer. It feels wrong to lump the choice to elect an authoritarian as a mere contingency.
Much agreed re PR. And something else we could copy from the Irish system is a President. For the UK we could say he was a Parliamentary President, whose legal duty would be to ensure that government was working in accordance with constitutional conventions and would therefore be required to take government to court (instead of Gina Millar) if these were not complied with.
It’s not a complete solution but I do think it would help…
Wasn’t it Thomas Jefferson who said, “The government you elect is the government you deserve.” ?
And it was Agent Kay – Tommy Lee Jones – who quipped, “A person is smart. People are dumb, panicky dangerous animals and you know it.”
Coming to a nation near you. Soon.
You haven’t mentioned the voters. Jim Hacker, on being advised that an Enabling Act can enable anything, pointed out that it could enable him to lose the next election
What about R (Jackson) -v- Home Secretary [2005] UKHL 56? Lord Steyn said that parliamentary sovereignty was a judge-made concept and there might be circumstances where the courts would not recognise primary legislation.
Yes, Robert I am fully aware of the dicta in that case.
But I chose not to refer to it, as it is not an authority as such. Coke, however, is generally regarded as an authority.
(Please assume I know such cases!)
Oh! It would never cross my mind that you wouldn’t know the case! I deliberately gave the citation and context only as a courtesy to your readers!
The Reform Party’s Constitution does not recognise the Northern Irish Assembly, the Senedd or the Scottish Parliament.
In fact, they are not mentioned at all in the Constitution.
The Constitution implicitly calls for the dissolution of the Northern Irish Assembly, the Senedd and the Scottish Parliament with the remittance of their devolved powers and competencies to Westminster and Whitehall.
It is a moot point whether or not the Secretaries of State for Northern Ireland, Scotland and Wales would continue to exist.
Done away with perhaps as a DOGE saving?
The Constitution also implicitly calls for the end of separate legal systems in Northern Ireland and Scotland.
Next year’s Senedd and Scottish Parliament General Elections should prove interesting, especially as Richard Tice has cast doubt on, in his opinion at least, the primacy of the Good Friday Agreement referendums.
The cynic in me would observe that this is entirely consistent and logical given the basic principles of the Reform “Party”.
The “principle of subsidiarity”, enshrined in the Masstricht Treaty of 1992, *requires* member states ensure that that decisions are made at the most local level possible. Of course, this position also has the effect of substantially reducing the authority and power of national governments, leaving only the EU Parliament in Brussels and the much smaller regional centres, with former national governments relegated to mere administration centres.
It was Tony Blair – not only the most pro-European Prime Minister, but transparently someone with designs to become the EU’s first President – who established the referenda that brought about the Scottish Parliament and the Welsh Assembly and who through Mo Mowlam brokered the GFA.
So it makes sense that Reform/Farage would look to reverse that, since those regional parliaments represent something he has opposed for decades.
The Northern Ireland Assembly, the Scottish Parliament and the Senedd are not regional assemblies.
They are national assemblies.
The United Kingdom comprises nine English regions and three nations.
The Northern Ireland Assembly is rooted in past national government in Northern Ireland since Partition.
The Scottish Parliament came out of the work of the cross party, cross community Scottish Constitutional Convention.
The Senedd harks back to calls for Home Rule in the days when David Lloyd George was still climbing the greasy pole.
The idea of Whitehall and Westminster ever becoming a former national government relegated to a mere administration centre is frankly risible.
I remember you saying NI is the only part of UK with a written constitution (GFA) which Reform will likely just ignore with support from some Unionists. Stormont would probably have to collapse for the final time and then Irish nationalists and even non Unionists will have a strong case for a new arrangement with the Republic and Europe. I can see Farage being the next UK PM followed by the first GB PM.
That is not my view.
My view is that the GFA limits practically what Westminster can do, not that it provides the north of Ireland with its own constitution.
Ok, thanks for clarifying. The Anything But Westminster Parliament sentiment will increase. Lack of experience with real world politics and economics in NI could end with Farage PM. Thanks
It was already clear…
If we are looking to the constitution to save our democracy then perhaps we are looking in the wrong place.
If voters are to make rational decisions they need good information. Hitler was very popular for many years, Trump still seems popular and even Putin seems to be doing OK at home. In all cases it might be argued that a significant proportion of voters were deluded about what they were voting for.
If you are convinced that the hardships that generations of your family has faced is the result of a global Jewish conspiracy, or that that poverty, crime & the lack of social housing in your neighbourhood is the result of migrants or their preferential treatment then you will support politicians who tell you they will address that issue.
The tabloids & social media that so heavily promote a right wing agenda neglect to remind us that a once adequate supply of social housing in the UK was sold off & much has ended up in the hands of exploitative landlords. They also fail to explain that poverty in the indigenous population has little to do with the also impoverished migrant population, or the EU, and much more to do with an economic system that sometimes gives rise to obscene levels of inequality. And of course they inoculate against the truth by labelling proper journalism and evidence as fake news.
Our grandparents generation understood the importance of access to reliable information and regulated the most important media of the day. Today we are surrounded by a cesspit of disinformation with the result that significant numbers of people genuinely believe crazy ideas – e.g. that COVID was a hoax. Unless this issue is tackled I can see British democracy ending in my lifetime (I am already retired) and other serious consequences if science & rationality continue to be undermined.
I don’t think it was really covered by the UK press, but after the November 2024 elections in the United States, New York Congresswoman and Democratic Representative Alexandria Ocasio Cortez (AOC) reached out to her constituents via social media and ran multiple Town Halls to help her understand how people had voted. She explicitly asked for responses from people who had voted for her and for Donald Trump.
What she learned through those exchanges – and this is all a matter of public record – is that the significant number of people who did vote in that way chose to do so because they felt that both AOC and Trump stood for change. [ AOC represents New York, where Harris won 55.91% of the vote and Trump 43.31% – a *much* closer race than history would have suggested] .
To me, that result contains a really frightening message. US voters had become completely disillusioned with the two-party system, in large part because both parties have become ossified, not just in the average ages of elected representatives [which was and is shocking] but the out-dated leadership practices – for example, the House Democratic Caucus still assigns Committee leadership roles based largely on seniority [time served] rather than ability. Trump’s message – and a key part of his success – was that he has portrayed himself as an outsider, determined to break the two-party hegemony.
My local MP, a Conservative, has held their seat since 1997. They are not an independent thinker and have voted with a Conservative government almost blindly, thus completely undermining the intent of having them *represent* the wishes of their constituents. I have seen an explosion in Reform artwork and Union Jacks recently and sense that this cozy, safe seat in the shires may not be cozy or safe any more.
My sense is that a big part of the rising popularity of Reform is that it is being driven by people who have come to realise that none of the traditional mainstream political parties in the UK have actually made a positive difference to the lives of “average British people”.
This is in large part because for the last 30-40 years we have been following an unsustainable fiscal policy that has: shifted the tax burden off of the wealthiest and on to those least able to pay; overseen the biggest transfers of wealth from the poorest to the wealthy; opened the doors to allow international finances and “licensing fees” to enable multinational companies to extract literally billions of pounds in profits from the UK without paying taxes or contributing to the economy, gutted UK industries on the grounds that it was “breaking the unions” and left us in a position where we’re now paying [sorry, subsidising] foreign companies to come and “own” British assets, further increasing the tax burden on citizens while watching profits get “license fee” transferred overseas.
It doesn’t seem to matter which party occupies No. 10, the fate of the average British citizen has become progressively worse, not progressively better, over the last 30-40 years.
This strikes me as a scenario in which a Trump-like “let’s break out of this status quo, get these ossified geriatrics out of government and make a fresh start” is going to sound so appealing that the average voter isn’t going to pause to read the small print.
Be afraid. Be very afraid.
At least the AOC insights provide some kind of blueprint for constitutionalists, to maximise the chances that they do get elected and so prevent authoritarians from gaining control of the elective dictatorship.
Robert, whilst that’s true… and in a sense important… “getting elected” isn’t the thing that will make the difference. If you think about our own nation’s history in government – we have transitioned from Thatcher to Blair to Brown to Cameron/May/Johnson/Truss/Sunak and now to Starmer…. but – genuine question – has there been a material change for the average voter, absent the slow but inexorable slide toward indigence for the vast majority of our population?
I think getting elected is important in the same sense as the old motor racing saying, “To finish first, first we have to finish”… Getting elected is the beginning, not the end of that journey.
What impresses me about AOC has been her effectiveness [often despite being actively thwarted by her own party] at raising awareness and driving change. It’s a chalk-and-cheese comparison, but do you recall Martin Bell, the former BBC war reporter who defeated the disgraced Conservative, Neil Hamilton, in 1997? His “Man in the White Suit” shtick certainly got him elected, but then he became essentially useless. Instead of using his platform to educate people on the seedier inner workings of government, or push for change, he stood for just one term and made no difference.
With all respect to both individuals, we need more less Martin Bell, more AOC.
In answer to your question about material change for the average voter. As someone who has had to make rather more than usual use of the NHS since the mid 80s, yes I have seen significant changes. The Blair Government made tangible changes to the NHS that improved access at all the levels I used, from GP to Consultant. The last fifteen years have seen an equally obvious decrease in access.
In a different sphere there were significant improvements in the built environment, re-paving of worn out areas, replacement of battered benches, that sort of thing.
It seems to me (as a non-British person) that in modern times the courts would most probably follow an explicit entrenchment of some provision.
Overall, I think all countries would benefit from a written constitution (and a reasonably poweful special Constitutional court, which the US doesn’t have). The refrain from some British people “look at the US” misses the important thing that it is important to have a good constitution. Of course, not even a great constitution can help against a horrible enough political situation, but it can delay everything completely falling apart I would think.
In effect the UK does have a constititun, but written by some jurists as the anti-entrenchment aspect of parliamentary sovereignty. And that seems like a horrible constitution.
(If there was a piece of paper called the constitution of the UK that said parliament can do anything except bind itself, I think it would be much less controversial that it is a horrible idea.)
I have read your comments on parliamentary sovereignty/supremacy on Blue Sky with interest. As I can’t reply on Blue Sky, I’m setting out some thoughts here:
1. Dicey and referendums: It seems Dicey thought referendums should act as a check on Parliament’s power. If Parliament wanted to make a major constitutional change, then the change should be approved in a referendum.
Applying this to the EEC/EU referendums, Dicey would have advocated for a referendum after Parliament had passed the European Communities Act 1972 paving the way for the UK’s accession to the EEC. Only then could the UK’s accession be ratified. Although the 1975 referendum voted to stay in the EEC, there is no guarantee that in 1972 the electorate would have voted to join.
As regards Brexit, Dicey would only have advocated a referendum once Parliament had voted to leave, i.e. he would not have approved of Parliament providing for a referendum when a clear majority of MPs wanted to remain. A referendum should be used to confirm what Parliament actually wanted to do.
2. Your comment ‘The implied repeal case of 1932 was a coup and an attempt to reverse the civil war and the Glorious Revolution’ puzzles me. I assume you are referring to Vauxhall Estates, though Ellen St Estates due to Maugham LJ’s views on implied repeal is also often cited. I think the importance of these cases is exaggerated. It seems to be sensible statutory interpretation to argue that if two statutes conflict, then the Parliamentary intention (so far as such a thing exists) would normally be for the later statute to prevail. Also, Laws LJ’s views on constitutional statutes in the Thoburn case seems to be sensible statutory interpretation rather than the undermining of the principle of implied repeal. All things being equal, a later statute would impliedly repeal an earlier one should there be a conflict. However, it would hardly make sense if an Act on weights and measures inadvertently undermined the whole basis of the UK’s membership of the EU. In that situation Parliamentary intention would be that the earlier statute, the ECA 1972, should prevail.
“I think the importance of these cases is exaggerated.”
An Act of Parliament was set aside. How? What power did the court have to do that? Yes the provisions contradicted – so why did the court just not hand the problem back to parliament?
(And on a technical note, we are presumably talking about construction here, not interpretation?)
During the apartheid era, South Africa operated under parliamentary supremacy. There was no accountability to a constitution or a bill of rights. And Parliament could (and did) override the then constitution by amending it (over 200 times). Parliamentary supremacy and illiberalism do not make good bedfellows.
Looking at the Trump administration though, what happens if the Courts/Constitution/Whatever says ‘No’
Unless the Civil Service/Security Forces/Whatever say ‘no’ and at the moment they dont seem to be willing to do this then if The Government says this will happen, irrespective of the legality then it does
Maybe illiberalism has its roots in restricted resources, not enough for everyone so grab mine first and make sure no one takes mine and to hell with the other fellow.
A lack of economically viable products and markets, a lack of usable energy resources, a sense that the good times may be coming to an end. Yes I know we have been here on and off since the Ancient Greeks, but maybe something good and new won’t turn up this time.
Hence the illiberal vibe. Politicians all over including Trump and Starmer are in a bind, ‘they’ know what to do but getting elected afterwards is the problem. Except they don’t really know what to do. But one thing is sure, the very rich are doing very well along with accountants and lawyers, they are our engine of growth.
So what’s to do. The path seems set, the rich and powerful will buy the politicians. Money and bought law will govern and the poor can go hang. For this to work more illiberalism and fewer elections are on the cards. Anyone know a good roofer?
There are those, many in the Reform camp, who say Sir Keir Starmer KC’s Labour Government lacks legitimacy, given it only won the active support of 1 in 5 of the registered electorate in the 2024 General Election.
They refer to Reform’s current poll leads over Labour to justify their point.
Nigel Farage’s Reform UK Party Ltd is currently gaining the same level of support in opinion polls as Labour did in the ballot box on 4th July 2024.
Richard Tice and the Policy Exchange have declared that leaving the European Convention on Human Rights will not harm the Good Friday Agreement.
The GFA, incorporating the ECHR, was endorsed in separate referendums held in Ireland and Northern Ireland.
Clearly, there are some referendum results that are set in stone and others that are not.