Sir Stephen Laws KCB, QC (Hon) is a Senior Research Fellow at Policy Exchange and former First Parliamentary Counsel.
Brexit has generated plenty of discussion about the supposed defects of the UK’s political constitution, as well as the perennial siren calls for its replacement with a “written constitution”.
The case against that was very well made last Thursday by Lord Hague in the Daily Telegraph. He pointed out that the evidence from the Brexit process is, rather, that constitutional legislation, as in the Fixed-term Parliaments Act 2011, has proved that ambitions for a written, legal constitution are totally misconceived.
Legislation, undesirably, provides more definitive and more divisive answers, and may make unintended consequences unavoidable. By converting political imperatives into legal rules it encourages more judicial intervention in the political process and the proliferation of political litigation that the next Parliament should, more generally, be seeking to reverse, as Richard Ekins rightly argued here on Tuesday.
Furthermore, the production of a comprehensive, written constitution would be impracticable in the real world unless there were a national consensus on what the most desirable outcomes for the operation of the new arrangements would be. That is obviously unachievable.
If anything has been demonstrated about the UK’s political constitution by Brexit, it is its admirable capacity to mould itself to accommodate the merits of the substantive political argument, and its reluctance to accommodate outcomes that give a bare majority an overwhelming victory, or to allow them to be dictated by the process alone.
The myth of Parliament’s impotence has been exploded – but not, unfortunately, without creating some new myths about the place of the House of Commons in the system that threaten the long-term balance and stability of the constitution.
Brexit does not establish a case for the comprehensive reform of the UK ‘s political constitution; but it has identified some issues that warrant action in the new Parliament to reinforce it, and to restore its balance. That action, though, should minimise the use of primary legislation, the risks of which have been so clearly demonstrated by the 2011 Act.
Even if the election result seems to make it less urgent, the priority for restoring constitutional balance after the election is firmly to reassert the right of ministers to retain overall control of the functions of government for so long as government retains the confidence of the House of Commons. The system needs to be able to guarantee that effective and coordinated government is still practicable, even when a decision of the electorate has produced a situation in which only a minority government is possible.
This involves ensuring that the Commons and the government in which they have reposed their confidence cannot pursue competing agendas. Competing agendas would make a nonsense of the electoral system in which the democratic mandates of each are mutually dependent. The House of Commons should not have the option of keeping the Government in power but denying it the capacity to govern by issuing it with legislative directions.
The only functions Parliament is really capable of carrying out effectively are those of scrutiny and calling to account. It can act usefully as a critic and even as an obstacle to individual proposals, but it does not have the capacity or resources to formulate and co-ordinate policy across government. The right of the government, so long as it is allowed to remain in office, to have the initiative in policy-making and legislation should be reasserted and, if necessary, reinforced.
Nevertheless, while rejecting the validity of recent precedents that have contradicted this principle, a future government should consider whether there is still scope to allow backbenchers more influence over the management of business in the House of Commons, but within the constraints of its legitimate functions: scrutinising government policy and legislative proposals, and calling government to account.
In this connection, the Fixed-term Parliaments Act 2011 needs to be amended or replaced, to restore the pre-2011 right of a Prime Minister to seek a dissolution of Parliament from the Sovereign, without risk of legal or other challenge.
It has been demonstrated that responsibility for ensuring that the electorate has its say when the relationship between government and the Commons has broken down cannot be shared with the courts or with other MPs. At the very least the definition of a vote of no-confidence for the purposes of the 2011 Act needs to be extended to cover any government defeat on a vote designated by the Prime Minister as one on which confidence in the government depends.
One aspect of the Brexit process has been the difficulty for the government, under our current arrangements, of having to negotiate simultaneously with the EU and with Parliamentary opinion. This might be mitigated in future by allowing a more responsible and confidential system for Parliamentary scrutiny of treaty negotiations with, perhaps, the creation of a supervisory committee on the model of the Intelligence and Security Committee.
One other, more technical issue emerging from the Brexit process has been the issue of separate legal advice to government and Parliament. Government should invite the new Parliament to accept, once again, that the existence and content of legal advice to government from the Law Officers or elsewhere is entitled to be regarded as confidential.
That though should be balanced with a clarification through standing orders that each House is entitled to seek legal advice from the Law Officers of the Crown on any matter relevant to matters before it. Each House should then make clear through its own processes that it would regard it as a breach of Parliamentary privilege, as well as contrary to Art IX of the Bill of Rights 1689, for any attempt to be made by one of its members, or anyone else, to by-pass that system by asking the courts to make rulings on actual or hypothetical questions of law for the purpose of affecting any proceedings in Parliament.
There is a theme to all these suggestions. Both the new Parliament and the new government should reassert the constitutional principle that the relationship between the two of them cannot be subject to exterior or superimposed supervision or regulation beyond that provided by the electorate when it calls both to account at a general election. The interposition of third parties in that relationship is incompatible with the political constitution, whether the intervention comes from the courts, from foreign powers, from international organisations or even, except perhaps in the most exceptional circumstances, from referendums.