For constitutional lawyers, the Brexit Santa Claus has shimmied down the chimney once again. This post is a response to Mark Elliott who recently commented on an article by John Finnis in the Telegraph. It also briefly addresses some of the points in a piece in the London Review of Books by Tom Poole published on 2 April 2019. In that piece, Poole considered an article in the Sunday Times by Richard Ekins and Sir Stephen Laws – the article was based on an original paper available here. Two letters in the Times have continued the debate here and here.
Finnis defends the possibility of advice being given by the Government to the Monarch that she use her personal prerogative to prorogue Parliament or to refuse Royal Assent. Such actions by the government may be precipitated by the (to put it mildly) innovative constitutional machinations by which Oliver Letwin MP and others have sought to take control of the business of the House of Commons and which may result in this draft Bill bring passed. The Bill mandates the Government to seek an extension to the Article 50 process.
Elliott strongly disagrees with Finnis. His primary objection appears to be to the proposition he ascribes to Finnis that ‘it is the Executive which… is the primary constitutional actor’, as a matter of constitutional principle. Historically, of course, the Crown was indeed the central administrative and executive authority and only slowly did parliament (and the courts) develop as alternative centres of power. So Elliott clearly cannot be making a historical claim.
Perhaps Elliott means that the Glorious Revolution changed matters. It is indeed true that Parliament won the Civil War as a matter of brute fact and now ranks higher than the Crown constitutionally. But this claim would fail to give Parliament its full title, which is Crown-in-Parliament. The latter certainly overrides the Crown acting under its own prerogative powers, as a long line of case law attests.
What then is the proper understanding of the relationship between the two elements of Crown-in-Parliament? Poole defends a widely-held conception whose proponents appear to believe that the democratic mandate from General Elections is conferred solely on individual MPs who then delegate authority to ministers who have no democratic mandate themselves. This approach is simplistic, legalistic and tells only half the story. It focuses legitimacy solely on Parliament as a ‘representative assembly’.
There is a far older constitutional principle that predates even the turbulent 17th Century. That is the principle of ‘responsible government’. The modern, democratic, version of this principle is that the executive administers the country for as long as it can maintain the confidence of the House of Commons. More ancient versions centred on the impossibility of blaming the monarch directly for errors. Ministers always had to take responsibility for all decisions and policies. As the franchise extended, and power and responsibility moved inexorably over to ministers, so the confidence doctrine seamlessly adapted.
Blame and credit attaches to ministers, not parliament. On the responsible government view, the Crown (through ministers) remains the ‘primary constitutional actor’ so long as it can maintain the confidence of the Commons. Its policies, when clothed with the authority of the two Houses, are the highest form of law. Its performance is assessed at General Elections by the electorate.
In a fused democratic system such as the UK, the twin doctrines of responsible assembly and representative government are amalgamated in the decision by voters at General Elections. Our vote is therefore bifurcated. This is because we vote not just for an MP, but also a manifesto put forward by a party slate. That slate is seeking, for some or all of their members, either executive office or potentially direct appointment by the party leader to executive office. The vote is therefore both for the legislature and the executive. As Jack Straw has pointed out, the party that wins the most votes is normally able to implement its manifesto.
The recent calls for newly independent MPs in ‘The Independent Group’ to submit to a by-election are symptomatic of this same tension. Those who think in terms of responsible government are likely to argue that a by-election is necessary; those who believe in representative government are likely to take the opposite view. To be clear, this post expressly denies any suggestion that the responsible government camp do not believe in representative government or vice versa. It is a question of degree.
The doctrine of confidence
The confidence doctrine, central to responsible government, operates at two levels. At one level, the government must maintain the confidence of the House of Commons – a House that is refreshed every five years at most. Prior to the generally unpopular Fixed-term Parliament Act 2011, the government could also seek a mandate for itself, sometimes giving special or overriding prominence to a particular policy, directly from the electorate. The latter is the second level at which the confidence doctrine can operate.
There are many examples of the Government seeking a fresh electoral mandate for its policies: for example Asquith’s successfully standing on a ‘People’s Budget’ platform and Heath’s infamous ‘Who governs Britain?’ catastrophe. The democratic importance of a party manifesto in modern times seriously conflicts with the claim that elections are solely concerned with the selection of a local MP for a representative assembly. It is suggested that there is excessive reliance on this contested approach by some commentators.
Taking a more measured approach, it is fair to say that there are difficulties for both responsible and representative government camps.
The representative government camp
For those who defend the view that the only purpose of elections is to elect MPs, there are accountability problems in circumstances such as the present. The recent conduct of Oliver Letwin MP is central to this question. In a recent debate, he candidly conceded the radical nature of his proposals, claiming that the House of Commons would in effect become ‘a Cabinet’ while the Bill was being passed. He further claimed that civil service support could be sought so that MPs ‘could be properly informed’.
Letwin openly admits that the Cooper Bill would ‘direct Government policy by legislation’ by contrast with the historical norm of the Government carrying forward policy ‘subject to the ability to maintain the confidence of this House’. He also says that the process would ‘require the fundamental realignment of the relationship between the Civil Service, Government and Parliament’. This has serious separation of powers implications, not least because it is not remotely clear how Parliament can successfully direct international negotiations – as the slightly farcical scenes in parliament in recent days perhaps demonstrate. This is to take nothing away from the extremely hard work done by parliamentary staff to aid these novel processes.
Henry Hill has described the current moves in the House of Commons as a ‘Letwin Ministry’ and wondered what would happen to actual ministers whilst a ‘wildcat executive’ set dangerous precedents for the future. He fairly asks who could hold this ‘shadowy parallel executive’ to account while ministers are ‘rendered an extension of the civil service’. Nikki da Costa has also eloquently put the responsible government view here. Finally, Paul Goodman has provided a sober and compelling critique of the absence of mechanisms in Parliament by which Letwin can be held accountable by MPs.
There are further practical problems for the representative government view. If the Government is mandated to seek an extension against its will, how will it conduct those negotiations with the EU? How is it supposed to respond if the EU seeks to impose extra financial burdens or other conditions as a result of a negotiating stance that the Commons order HMG to take?
What if the EU says no and there are suspicions that the Government quietly asked the EU to say no in order to further its own agenda, such as generating a truly binary choice for MPs between the Prime Minister’s deal and no deal?
Who could MPs hold to account if they are not happy with how the Government acted in such talks over extending the process, given the relevant ministers would be doing it wholly against their will? Could judicial review of such decisions be brought against ministers for failing to carry out their statutory obligations?
The responsible government camp
The alternative view is that there is a central executive authority that leads the country. It is severely politically constrained both by regular General Elections and by the requirement to maintain the confidence of the House of Commons. It is hardly an ‘executive hegemony’. It operates in accordance with the core idea that parliament must have its say, but the government must get its way.
There are also problems for the responsible government view. Private Members Bills are a long-standing part of the legislative framework and are, by definition, not proposed by the Crown’s ministers. This can only be partially answered by suggesting that the Government in effect adopts such Bills by allocating time for their passage. Another problem is where a new administration has to implement legislation passed by a previous Parliament of which it disapproves but lacks the time or political will to seek an immediate repeal. One could look at the current Government’s attitude to the Human Rights Act 1998 as an example.
A third problem is that elections in many constituencies are fought by parties and candidates where the leading candidates represent parties that are not in contention to become the party forming the government or the majority in any coalition. It is difficult to argue that in such cases, the elected Government has secured a mandate for its manifesto from the electors in such constituencies.
In truth, neither the responsible nor representative government conceptions can claim to have a monopoly on the democratic arguments. Instead, a more nuanced and sophisticated recognition of the tensions in the constitution would perhaps be preferable in a system which in effect chooses both legislature and executive at the same time.
The doctrine of confidence, the withdrawal agreement and the Cooper/Letwin Bill
Most unfortunately, the 2016 referendum has brought the two conceptions of representative and responsible government into direct conflict, thus adding yet more weight to the argument that, in our system, referendums are constitutionally questionable.
Under normal circumstances it would be inconceivable for the government to persist even with a central plank of government policy after it has been defeated, repeatedly and overwhelmingly, by parliament – as the withdrawal agreement has been. Where the executive cannot carry parliament it will normally either drop such a policy (long before any vote) or eventually be subjected to a successful vote of no confidence if it does not resign of its own accord. It may well be that notwithstanding the tensions caused by the referendum result, normal service may eventually be resumed even on the Brexit issue, if all other options disappear.
Meanwhile, the machinations in parliament, and the potential responses by the executive have revealed the tension between responsible and representative conceptions of the constitution. Elliott revealingly demonstrates his own assumptions by twice referring to Bills that have passed through the Commons (and presumably the Lords) as ‘legislation’. Tom Poole makes the same assumption. By definition, a Bill can only be described as ‘legislation’ after Royal Assent has been granted. Moreover Royal Assent is given, or withheld on ministerial advice, or – at a minimum – it lies within the government’s responsibility to put forward a Bill for Royal Assent. The necessity for ministerial sanction is a view that Anne Twomey attributes to the majority of academic commentators, as discussed in my previous blog.
What is missing from the criticisms by Poole, Elliott and others is any recognition of the legitimacy of the responsible government conception. This is disappointing. The representative government conception is certainly important and defensible, but it is not apodictic.
If any of the Cooper/Letwin Bill drafts eventually look like they may get through Commons and Lords, it would only be as a result of a virtually unprecedented usurpation of procedural norms within the Houses relating to the role of the Crown and her ministers that have stood for decades. If those norms are viewed as being rooted in the conception of responsible government defended in this post, then they have stood for centuries in various forms. If the House of Commons is not content with the policy agenda and governance of the executive, it can propose and pass a motion of no confidence. Such a motion is the ‘big red button’ that proves that the UK is not an ‘executive hegemony’. This power of the Commons seriously undermines any claim of undemocratic or unaccountable power.
The highly novel idea that a quasi-PM can propose and pilot a Bill through parliament against the will of the government is certainly not in line with orthodox conceptions of the relevant constitutional norms. Being as generous as possible, such a novel procedure might possibly be shoe-horned by defenders into a bold and radical version of the representative assembly conception but the justification for such an approach would require considerably more argument and rather less vigorous assertion.
Many in the representative government camp appear to assume the correctness of their conception of the relationship between executive and legislature in the UK. This contested conception fails to account for very real nuances and historical practices, consideration of which ought to infuse an informed discourse on these constitutional issues. The responsible government conception provides a reasonable and coherent alternative view to the representative government conception that perhaps explains how and why some of the mooted responses by the government to the unprecedented recent machinations in the House of Commons may be constitutionally justified in the particular and extraordinary circumstances we are now living through.
The author would like to thank John Finnis, Nikki da Costa, Jeff King, Tom Poole, Sir Stephen Laws, Alison Young, Mark Elliott and Gavin Phillipson for their helpful comments on a previous draft. The usual disclaimer applies.
Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.
(Suggested citation: R. Craig, ‘Executive Versus Legislature in the UK – A Response to Mark Elliott and Tom Poole’, U.K. Const. L. Blog (5th Apr. 2019) (available at https://ukconstitutionallaw.org/))