Constitutional Law Group April 22, 2015 UK government, UK Parliament

Manifesto Watch: Graham Gee: Five Thoughts on Conservatism and Constitutionalism

Editors’ note: The blog has asked constitutional lawyers to review the main party manifestos ahead of the May elections, drawing out key constitutional proposals. You can read the other contributions in this series here.

I want to offer five thoughts prompted by the constitutional elements of the Conservative Party’s manifesto, employing a conservative lens to do so. I use a conservative lens for two main reasons. First, I am increasingly aware of my own conservative disposition, one that has surfaced from time to time in my public law thinking, such as it is. Second, at one point in time there were close connections in the UK between conservatism and constitutionalism, but the links between them are no longer as strong as they could or (as I see it) should be.

For these purposes I associate conservatism with an attachment to established customs and institutions that are taken to embody the accumulated wisdom of the political community. Underpinning this is the belief that the knowledge required to manage human affairs is to be found not in abstract principles, but in political experience. Such experience should be local and particular, which leads to suspicion of the universal and the uniform. Unsurprisingly all of this culminates in a strong preference for the tried and tested, and a resistance to sudden and rapid change. Others might more readily associate conservatism with preventing critical scrutiny of the established ways of doing things and legitimating existing political and social inequalities. I am conscious of these critiques, but consider them incomplete and ultimately unconvincing. A final preliminary point: I will assume that there is an important (but not exclusive) affinity between the Conservative Party and conservatism. This might ‘seem obvious to some and contestable to others’ (to quote Lord Norton), but for these purposes I simply assume a close connection between the two. There is of course a long history of conservatism within the constitutional thought of the Labour Party as well, as nicely shown in the work of Peter Dorey.

(1) In any country a changing constitution poses a conundrum for those with a conservative disposition: how ought a conservative to respond? The conundrum is especially knotty in a customary constitution such as the UK’s, which seems singularly susceptible to weakening when change is no longer gradual and inter-generational, but rapid and far-reaching. Change can take on a life of its own, with it all too easy to lose sight of a customary constitution’s traditional strengths.

To be clear, conservatives do not deny the need for constitutional change, and indeed it ought to be at the heart of their vision of a constitution. Read L.S.A. Amery’s 1947 Thoughts on the Constitution to get a sense of how central change is to a conservative. However, it is a specific species of change: not change that purports to vindicate an abstract principle or that goes against the grain of established traditions of behaviour, but change that seeks to conserve the strengths of existing institutions which embody (even if imperfectly) rights, liberties, justice and the rule of law. Generally speaking, change ought to be corrective, not innovative, with a presumption in favour of existing political arrangements, unless those arrangements contribute only negligibly or not at all to the ‘good life’ (to employ Cameron’s striking choice of language at the manifesto launch). Conservatives ought to be especially wary of too much change all at once, always keen to mitigate its unintended and unknowable consequences.

The real difficulty is that beyond broad pointers such as these, conservatism lacks many details about how to engage in deliberate constitutional change— and, absent this, it can sometimes seem that, for conservatives, changes in the past were good, but any changes in the future will be bad. All of this is to say that working out what to change about a constitution and what not to, when to do so and how to do so are especially difficult for conservatives, and some of these difficulties can be seen in parts of the Conservative Party’s manifesto.

(2) With all of this in mind, I am struck by how much change (or potential for it) is envisaged by the manifesto. Some is unobjectionable (e.g. devolution of further powers to Scotland and Wales and devolution to those large cities that choose to have elected mayors). Much of it seems overdue (e.g. English votes for English laws; and boundary reform). The conservative trait to strengthen existing institutions is strongest and most convincing in the manifesto’s policy on devolution and the Union. Other parts of the manifesto give more pause for thought (e.g the In/Out referendum; replacing the HRA with a British Bill of Rights; and while not a priority for the next Parliament, there is a wooly reference to ‘a strong case for introducing an elected element into our second chamber)’.

The In/Out referendum seems more troubling today than a couple of years ago in light of the seemingly stronger support in Scotland for EU membership and the possible consequences of a ‘No’ vote on the politics of independence. True, it could be argued that Cameron’s preferred policy is simply to (appear to) renegotiate the terms of the UK’s membership of the EU; in other words, to revise rather than tear up EU membership. However, the path of this policy seems more perilous today than a few short months ago. Somewhat similar concerns about unintended consequences might lead those concerned with the workings of the HRA to decide that it would be better to revise rather than replace the existing architecture of domestic human rights protection, with the devolutionary dimensions a complicating factor that encourages a cautious approach. Electoral calculations, and the fact that UKIP looks likely to at least double its vote from 2010, help to explain the Conservative Party’s continued attachment to a EU vote and a British Bill of Rights, although there are other more principled explanations as well. But I suspect that changing circumstances might make both policies seem less attractive for conservatives today than a couple of years ago. Or to put this differently: the BBC’s Nick Robinson refers to manifestos as a mix of retail, radicalism and reassurance. These parts of the manifesto, seen through a conservative lens, are too heavy on the retail and the radical, with not much to reassure conservatives.

(3) As I said above, the Party’s proposals on devolution and English votes for English laws are amongst the most coherent parts of its manifesto and reflect a genuine commitment to the Union. However, I find myself uncomfortable with the Party’s no-holds-barred politics over the prospects of SNP-influence over a Labour minority administration. To be sure, politics is a contact sport, and public lawyers can at times be too queasy when constitutional issues are subject to intense political debate. All that said, the Party’s tactics leaves a bad taste in my mouth, and especially when considered alongside the crassness of the PM’s comments on English votes for English laws on the morning after the independence referendum. I do not view these tactics as unacceptable, nor do I think that they differ too much from how other parties have employed constitutional issues in previous elections. I simply join other conservatives in questioning the prudence of using them, and worry about their possible long-term effects. In their 1950 manifesto, the Party said that ‘Conservatives believe in the constitution as a safeguard of liberty…socialists believe it should be used for party ends’. It seems to me that of all the parties in this election it is the Conservatives who are most aggressively employing the constitution for party ends. Time will tell whether this helps the Party achieve its short-term goal of securing a return to No 10—but we will have to wait longer to see whether the tactic has a corrosive effect on the body politic.

(4) As conservatives see it, institutions such as Parliament can offer structure and continuity and promote the loyalty and attachment of the people. From time to time, change might be necessary to strengthen such institutions. In the manifesto, the Conservative Party speaks of having ‘improved the operation of Parliament, strengthening its ability to hold the Government to account’, citing the creation in the Commons of the Backbench Business Committee. It presents proposals to equalize boundary size and reduce the number of MPs from 650 to 600 as further steps to strengthen the Commons. But reducing the number of MPs will weaken the Commons’ ability to hold the Government to account unless there is a proportionate reduction in the number of ministerial positions, a point unaddressed in the manifesto.

The fact that the manifesto celebrates the Fixed Term Parliament Act as ‘an unprecedented transfer of Executive power’ seems surprising given so many Tory MPs were reportedly vexed by it, with criticism of it becoming louder in the months before the election. Trumpeting the Act in the manifesto may lead conservatives to doubt whether the Party has learned much from rushing into reform at the start of the 2010 Parliament. Putting aside the fact that it was a necessary bargaining tool during the coalition negotiations to ease Lib Dem concerns that Cameron would leave them hanging by calling a snap election, the Act will strike many conservatives as ill-advised, rushed and justified on a flimsy basis. (See Vernon Bogdanor’s The Coalition and the Constitution for the suggestion that there is much less evidence of PMs abusing the dissolution prerogative than commonly claimed). The Act is also an unwelcome source of uncertainty. As the IfG’s Catherine Haddon noted earlier this week, the Act ‘substantially changes the rules of the game…but nobody can tell you exactly how’. As well as a grubby political compromise, it might also be that the Act reflects the traditional preference in conservative thought for parliamentary government over popular government.

(5) The various incarnations of the Conservative Party’s proposals to replace the HRA and introduce a British Bill of Rights have attracted much comment, most of it critical. (For some recent critiques, see Helen Fenwick’s pieces here and here, and Mark Elliot’s post on the manfiesto’s proposals). I do not want to say much about the merit of the proposals themselves, except to note that whatever appeal the repeal of the HRA might have held in my own mind was much diluted after reading the Conservative’s 2014 Protecting Human Rights in the UK paper, with my sense that a better approach is to work within the HRA rather than replace it. I instead simply want to respond to (what I perceive as) a propensity amongst some lawyers to view the Party’s proposals in the very worst possible light. As I see it, seldom is it acknowledged that: the Party’s concerns are closely connected to the central tenets of conservative thought; that such concerns have been articulated fairly consistently by most of the Party’s elite over several decades; that their concerns map closely onto the enduring debates about the appropriate role of and limits on parliamentary and judicial institutions that animate public law scholarship; and that at least some of their concerns have proven prescient.

To be clear, I am not denying that proposals should be subject to searching scrutiny; of course they should. Nor am I denying that there are troubling elements in both the content of the proposals (to the extent that we know the content, that is) and the haphazard way that they have appeared, disappeared and reappeared in political debate. Finally, I am aware that most lawyers who commentate on the Party’s proposals do so in good faith and motivated by a wholehearted desire to ensure the vindication of rights. All that said, a couple of points risk getting lost in the din.

The first is that conservatives schooled in the UK political tradition share with the rest of the political community a strong commitment to rights, but regard codifying rights in a charter as rubbing up against many of the basic tenets of conservative thought. A charter of rights exemplifies a rationalist, universalist and uniform approach that conservatives instinctively resist. To be sure, not all conservatives view a charter of rights in this way, with Lord Hailsham and Dominic Grieve being two examples, but many (and probably most) do. It is therefore unsurprising that many conservatives have long held and continue to hold very serious reservations about the HRA. In a recent post, Mark Elliot observes that the HRA has ‘clearly failed’ to achieve ‘a degree of political consensus which [would] invest [it] with a form of resilience that makes [it] genuinely “constitutional” in the small-c, non-legal sense’. Elliot is right, and part of the reason perhaps lies in the fact that the Act is so at odds with the conservative way of being.

The second is that the Party’s opposition to the Act has been fairly consistent, with many of the concerns its MPs articulated in the second reading debate in February 1998 remarkably prescient, including about the lack of public ‘buy-in’ and (chiming with some public lawyers at least) about a shift of too much power to the judiciary. That such concerns are held by a significant swathe of the political class is something that we ought to take very seriously, and if (as seems to be the case) these concerns are more strongly held today, then public lawyers should be curious about why this might be so. We should try not to over-egg relatively trifling matters, such as the language that ministers use to describe the Act or judicial decisions under it. Equally, and perhaps especially if criticizing the way that politicians talk about the Act, we should take care to discuss their concerns in a respectful way that avoids creating an impression that somehow such proposals are beyond-the-pale and reflective only of short-term, self-interested and electoral calculations.

Graham Gee is a Senior Lecturer at Birmingham Law School at the University of Birmingham

(Suggested citation: G. Gee, ‘Manifesto Watch: Five Thoughts on Conservatism and Constitutionalism’ U.K. Const. L. Blog (22nd Apr 2015) (available at http://ukconstitutionallaw.org))

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1

Gavin Phillipson on April 22, 2015 at 7:49 am
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A very thoughtful piece, Graham, thanks. I have one thought and a question. The thought is that (as you may have said elsewhere?) the HRA could be seen as a conservative-style reform: given that the UK was already obliged at the international law level to abide by the Convention rights, making those rights enforceable in domestic law could be seen as an incremental reform, working with rights we were already familiar with, and also largely maintaining existing key constitutional principles, such as parliamentary sovereignty( as opposed to the ‘big bang’ radicalism of a wholly new British Bill of Rights).

The question is this: the last part of your post appears to suggest that conservatives naturally oppose codified Charters of rights, for the reasons you give. You refer at this point to ‘conservatives schooled in the UK political tradition’ but presumably the basic values you sketch at the beginning – attachment to existing institutions, valuing local, tried-and-tested wisdom over abstract reasoning etc are not exclusively British: they must be present, to some degree in political thinking in other countries. An interesting question might then be: how do conservatives in other countries regard their Bills or Charters of rights (given that such instruments are extremely common)? Is scepticism towards Bills of Rights a distinctively British conservative concern?

An obvious counter-example seems to be the US where Republicans reverence the Bill of Rights, and political differences revolve around differing approach to its interpretation (Republicans broadly espousing originalism as opposed to judicial activism (not that this is consistently applied – see e.g. many novel, contemporary aspects of First and Second Amendment jurisprudence strongly supported by conservatives).Of course, in the US the Constitution is a key part of the country’s most deeply-rooted traditions. Does this lead to the conclusion that conservatives in the UK partly oppose the HRA simply because it was an innovation, meaning that if it endures for some time, it will then become part of our traditions, and conservative opposition should therefore gradually fade and become support?
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Graham Gee on April 22, 2015 at 6:55 pm
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Hi Gavin, these are good questions to which I don’t have very complete (or perhaps satisfying) answers. Instead, here are some responses that your questions prompt:

(1) You’re quite right that it was by design that I spoke of the wariness of judicially enforceable bills of rights being a feature of UK (or perhaps: English) conservative thought. I did so very much with the US constitutional experience in mind, and of course the special role and status that their constitutional text occupies within US conservative thought.

(2) There are, as I see it, quite strong differences between (the dominant strands of) conservative thought in the US and the UK (/England). In very crude terms, it is a difference that can be seen by comparing the conservatism of the American Russell Kirk with that of Michael Oakeshott. (Kirk wrote a book called The Conservative Mind. If you read conservative-leaning journals and blogs etc on US politics, as I do, then you will find quite a lot of references to The Conservative Mind). Kirk’s is a more transcendental and all-encompassing account of conservatism than Oakeshott’s (and one that I find much less attractive). One of the strengths of Oakeshott’s writing on ‘the conservative disposition’, as I see it, was to disentangle conservatism from an emphasis on metaphysical beliefs, religious beliefs, natural law and the right to property found in some of the work of Kirk (and Burke for that matter). Anyhow, I wouldn’t want to commit to any strong claim on the implications of Kirk’s work (as I haven’t thought nearly enough about it), but it could perhaps lead to a different outlook on a bill of rights that represents a settled part of a constitutional landscape. And as you say, in the US context conservatism suggests certain things about the appropriate approach to interpreting a constitutional text/ bill of rights.

(3) At this juncture, I should perhaps make clear that a right-thinking conservative ought try to avoid being too dogmatic in his or her opposition to a bill of rights. (Conservatism, properly practiced, encourages moderation and modesty in the type of claims advanced!). They should instead recognize that in some circumstances (e.g. in some polities) it might in fact be necessary to set aside concerns about the rationalist, uniform and universalist character of a bill of rights, but in a polity such as ours they would do so only fairly reluctantly and cautiously.

(4) You asked whether “the HRA could be seen as conservative-style reform” insofar as it was an extension of some of our existing political and legal arrangements. You are correct that this sort of argument could be made, just as it could be made about the CRA’05. However, I’m not sure how convincing I’d find this. (Grégoire Webber and I try to explain, albeit briefly, why we didn’t think this a convincing interpretation of the CRA’05 in our 2013 MLR piece on ‘Rationalism in Public Law’). Let me begin by noting that few reforms will ever be wholly uninfluenced by prevailing traditions of behaviour, and so this is sort of argument can usually be made to some degree about most reforms. (Oakeshott is v good on that point). What is required, then, is a question-of-degree, all-things-considered, ground-up assessment to assess the extent to which any one reform is consistent with the insights of conservatism. In making this assessment, one would want to think about the degree to which the proposed reform (even if broadly in line with some elements of the existing ways of doing things and the prevailing legal and political arrangements) recognizes the value of practical knowledge, the political experience embodied by prevailing arrangements etc.

(5) You ask whether the ultimate conclusion is that conservatives oppose the HRA “simply because it was an innovation” and whether the HRA will become part of our traditions, such that conservatives will one day support it as part of the established way of doing things. I think that you’re on stronger grounds with the second half of your suggestion than the first (although that is because we might get bogged down on where we draw the line between corrective change and innovative change—and, to be clear, this is an area where conservative thoughts gets bogged down). On the HRA becoming a settled part of our political and legal life, my own evolving sense that it might be better to revise rather than replace the HRA is perhaps a small example of this. (On devolution, we can point to many conservatives—and the Conservative Party—accepting this as part of the established fabric of contemporary political life, and changing their approach of the 1980s/90s). You might ask at what point ought conservatives to accept something as a settled part of the landscape; the conservative response–unsatisfying though it may seem–is that is a decision that can only be reached by a careful consideration of the concrete circumstances of any one change etc.

(6) I’ll close with one final thought: I readily recognize that many people will find unappealing the sort of conservative disposition that informed my post (and they will find it unappealing even if it accurately describes their own thinking at least some of the time!). As Samuel Huntington once put it, conservatism is immanent rather than transcendental, more institutional than ideational. It offers no shopping list of substantive goals that must be secured and no roadmap of how to pursues substantive ends—and, as such, lacks ‘any offering with which to stir up the enthusiasm of the crowd’ (Scrutton). There is very little substantive content implied by a conservative disposition; the substance associated with it derives in concrete contexts from the enjoyment of prevailing arrangements. All of this can make conservatism a hard sell (to many people, at least). To me, it makes it rather attractive part of a constitutionalist’s toolkit.
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Gavin Phillipson on April 24, 2015 at 11:12 am
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many thanks for this thoughtful reply Graham! I realised as soon as I wrote it that the notion of conservatives opposing the HRA simply because it was an innovation (and therefore eventually coming to support it as part of our traditions) was simplistic. I sensed for some time that there were some very marked differences between American and English conservative thought (the former has always seen much more substantive, ideological, and goal-driven) so I was particularly interested in what you said about that.
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carol Harlow on April 29, 2015 at 9:47 am
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Graham, have you perhaps underplayed the ‘british’ element, though you make the distinction yourself between conservatism and British conservatism? A ‘British Bill of rights’ (obtainable or No) is less anathema to Conservatives than ‘Government from Strasbourg’.

Carol
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What’s new in administrative justice, May 2015 | UK Administrative Justice Institute on May 5, 2015 at 4:39 pm
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