It may reasonably be argued that the Johnson Government launched a determined assault upon the UK constitutional settlement. We are failing in our duty as teachers of constitutional law if we do not equip our students with the tools to appraise this argument. Some of the features of the way in which public law is typically taught in UK universities stand in the way of so equipping our students. Or so I shall argue.
(Arguable) Constitutional Vandalism
While I would not usually advise students to write in 22-point lists, I feel it is necessary to set out at length the extent to which the Johnson Government has demonstrated hostility to formerly accepted constitutional norms. Over the last 3 years, the Government has:
- Attempted to prorogue Parliament in order to avoid scrutiny of its handling of Brexit.
- Incorrectly claimed during an election campaign that the Northern Ireland protocol would not result in paperwork being required for goods travelling between Northern Ireland and the rest of the UK.
- Changed the name of the Conservative Party Twitter handle to ‘FactCheckUK’ during a live televised debate.
- Attempted to prevent unfriendly journalists from attending Downing Street press conferences.
- Imposed a chair friendly to the Government upon the Liaison Committee, contrary to the established practice of allowing the members of that committee to elect their own chair.
- Publicly criticised lawyers who have successfully brought cases against the government.
- Appointed a major Conservative Party donor as BBC Chair.
- Handed out contracts for Covid-related equipment and services in what Transparency International has described as ‘seemingly partisan and systematically biased ways’.
- Reduced the avenues that are available for people to challenge government action by way of judicial review [Judicial Review and Courts Act 2022].
- Declined to take action against ministers found, or suspected of, violating the Ministerial Code, and had ministerial ethics advisers resign in protest on two separate occasions.
- Given ministers the power to strip someone of their British citizenship without notice [Nationality and Borders Act 2022].
- Attempted to appoint as head of OFCOM the former editor of a newspaper that had, under his editorship, decried judges as ‘enemies of the people’ for ruling against the government in a controversial case.
- Indicated an intention to provide ministers with powers to set aside judicial rulings they disagree with.
- Extended the criminalisation of political protest to allow the police to restrict protests on the basis of ‘disruption’ or ‘unease’ [Police, Crime, Sentencing and Courts Act 2022].
- Almost certainly knowingly misled Parliament about the Prime Minister’s knowledge of parties at 10 Downing Street during lockdown.
- Introduced voter ID requirements in the face of evidence that this will likely supress voter turnout and in the absence of evidence of the need for voter ID [Elections Act 2022]. (Curiously, the forms of ID that will be accepted include an Older Person’s Bus Pass, but not a Young Person’s Railcard – support for the government lies largely with older voters.)
- Given ministers the power to set the strategic priorities of the previously independent Electoral Commission [Elections Act 2022].
- Taken the decision to privatise a public broadcaster whose news coverage had been critical of the government.
- Made repeated threats to derogate from the Northern Ireland protocol in violation of international law.
- Tabled a bill to repeal the Human Rights Act and replace it with a weaker set of human rights protections that will almost certainly fall short of the standards required under the ECHR [Bill of Rights Bill].
- Publicly blamed individual civil servants for policy failings and made broad allegations of incompetence and political bias against the civil service more generally.
- Attempted to deport asylum seekers to Rwanda, in the face of human rights concerns, including warnings from civil servants that they could be forced to fight in the country’s army.
This is an incomplete list.
In my opinion, it is not plausible to view the above as a set of isolated incidents: I view it as evidence of a concerted attempt to whittle away those constitutional safeguards (‘legal’ and ‘political’ alike) that are supposed to ensure that ministers of the Crown do not usurp their proper roles and are held accountable for how they conduct themselves in office. From a teaching perspective, whether this claim is correct is, strictly speaking, beside the point. What is important is that the claim is (i) reasonably arguable and (ii) if correct, of huge contemporary constitutional significance. If Her Majesty’s Government was arguably engaged in wilful destruction of our constitutional checks and balances, students of the constitution need to acquire the knowledge and skills required to take an informed opinion on the matter.
Of course, as law lecturers we want to inculcate in our students a critical attitude towards law, policy and governmental action, regardless of what area of law we are teaching or who the government of the day is. And the Johnson Government is not unique in having acted in an arguably unconstitutional way – think for example of the Blair Government’s internment of terrorist suspects and its proposals to prevent failed asylum seekers from bringing judicial review actions. One might therefore argue that the Johnson Government presents no particular reason to change our approach. To this I would say two things in response. Firstly, the sheer scale of the charge sheet against the Johnson Government gives us reason to reflect on whether our public law syllabi are successfully encouraging students to critically analyse constitutional politics, and whether we could do more in this regard. Secondly, if I am right we are arguably facing not a set of isolated unconstitutionalities, but a determined effort to erode constitutional safeguards, then this amounts to a significant departure from the practice of previous administrations, such that we can no longer be confident that the accepted wisdoms traditionally passed on from lecturer to student continue to hold.
To expand on that last point: when discussing the UK’s constitutional arrangements, it is often said that governments attempting arguably unconstitutional action are forced to weigh the supposed benefits of their proposals against the political costs they will incur if criticised for transgressing constitutional norms. In this balance the efficacy of the British constitution is said to lie. The Blair Government, for example, backed down from its proposal to oust review of asylum decisions following criticism from senior judicial figures, and agreed to amend its anti-terrorism legislation when the House of Lords issued a declaration of incompatibility. Yet it is far from clear that the Johnson Government saw allegations of unconstitutionality as a political liability at all – indeed at times its actions seemed calculated to provoke such a backlash, allowing it to make political capital by positioning itself as siding with ordinary people as against a ‘liberal elite’. In light of such a stance, the ability of the British constitution to restrain government action within reasonable bounds must be called into question.
(Possible) Pedagogical Shortcomings
I do not propose to provide a full answer to the question of how the teaching of public law in universities should respond to the challenge posed by the Johnson government. Instead I would like to highlight three features of public law pedagogy that I have encountered in my (admittedly partial) experience that I believe may unwittingly detract from our ability to inculcate in students the ability to assess the extent to which the Johnson Government did, or did not, manifest a threat to constitutional safeguards. I flag these as possible pedagogical shortcomings, partly because I am aware that the way public law is taught varies between institutions, and partly because these remarks are intended very much in the spirit of opening up a discussion, rather than condemning particular teaching practices outright.
The first possible shortcoming is the extensive focus that public law modules tend to place on the issue of parliamentary sovereignty. There are, of course, perfectly sound doctrinal reasons for exploring the question of what limits, if any, there are to Parliament’s legislative competence. However, devoting numerous lecture hours to this issue perhaps exaggerates its practical significance. In my experience, students who are concerned about the potential for abuses of state power tend to cite unfettered parliamentary sovereignty as the main drawback of the UK constitution. This tendency is encouraged by the standard practice of textbook writers to quote Stephen’s bizarre statement that a statute mandating the murder of all blue-eyed babies would be legally valid. Now I object to this statement philosophically: I cannot understand what meaning can be given to ‘legally valid’ of a statute which would not and should not be applied – Stephen’s conception of law appears to be neither fact nor norm. But of more relevance to my present point is the quaintness of the idea that, if our rulers were in fact to develop infanticidal designs, they would seek to achieve their ends by way of legislation. A moment’s thought (as well as our knowledge of all-too-real genocidal regimes) reveals that a baby-killing statute is far more unlikely than the already vanishingly improbable baby-killing government. Or, to re-enter the real world, we can note that the most egregious case of abuse of state power in recent times – the Windrush scandal – was carried out by the executive without any statutory warrant. While the power to legislate is of course important, if our students are leaving our public law modules with the impression that the greatest threat to liberal democracy in the UK is an overly-powerful Parliament, we have misled them.
The Stephen quote also relates to the second possible shortcoming, which is the tendency to rely on extreme and/or archaic examples when explaining to students the kinds of governmental wrongdoing that a well-functioning constitution is supposed to guard against. Having been fed snippets of Montesquieu, Paine and Bolingbroke, my students often tell me that the UK constitution has proved effective in preventing ‘tyranny’. This is not untrue, but nor does it seem like a useful frame for appraising the performance of the constitution today. We are probably safe from the threat of an absolute monarch seizing power and ruling on the basis of his or her personal whim, just as we are probably safe from the threat of an infanticidal Parliament. But are we safe from a far-right cadre taking control of the governing political party, and then gradually dismantling the existing mechanisms for accountable government, using divisive populist-nationalist rhetoric to distract public attention? While the extreme examples that are often given in public law textbooks – such as the blue-eyed baby statute, King Charles I or apartheid South Africa – have the benefit of clarity, I fear that they may divert attention from the very real risks posed by less dramatic incursions of constitutional norms.
Finally, I have concerns about the model of democracy – or perhaps more precisely the lack of such a model – that emerges from our public law syllabi. No doubt practice varies here, and I am aware that some textbooks contain useful discussions of basic democratic theory. But in my experience there is something of a tendency for constitutional issues to be framed in a way that closes down, rather than opens up, questions about the nature of democratic legitimacy, and thus about potential democratic shortcomings in the UK. The framing I have in mind here is that solving thorny constitutional questions requires striking the right balance between democracy and some other value (typically ‘the rule of law’ or ‘human rights’). The issue thus framed, there is a natural inclination to equate Parliament/government with the former and the courts with the latter. Parliamentary and governmental decisions thus become presented as democratic more or less by default, with little to no examination of what the preconditions of democratic legitimacy are, and whether they are met in the case in hand. Yet if it is indeed arguable that the Johnson Government has been taking steps that undermine constitutional government, we ought to be encouraging our students to ask the question to what extent decisions made by politicians really do enjoy democratic legitimacy, particularly in cases in which they appear to erode democratic accountability. This would mean examining issues such as the first-past-the-post voting system, party funding, electoral law and media regulation, not just in terms of considering whether they may be ripe for reform, but also in questioning whether our elected government enjoys the democratic legitimacy that we tend to assume it has.
I do not mean to suggest that for the new academic year we should stop teaching parliamentary sovereignty, or that textbook writers should expunge any reference to Montesquieu or Charles I. But I do think that the constitutional politics of recent years give us reason to reconsider the balance of our syllabi. One place to start might be to include discussion of the contemporary global phenomenon of democratic backsliding, leaving open the question whether matters such as those in my 22-point list mean that the UK has also joined the ranks of at-risk democracies. This would potentially provide students with a better sense of the kind of threats that liberal democracies are likely to face in the 21st century. Of course, for those who, like me, find the Johnson Government’s constitutional politics deeply troubling, encouraging critical analysis without presenting one’s own controversial opinions as fact presents a difficult challenge. But we cannot meet that challenge by simply pretending that nothing has changed.
The author is grateful to Michael Gordon and Lindsay Stirton for their valuable comments on an earlier draft.
Alexander Latham-Gambi, Assistant Professor, Birmingham Law School
(Suggested citation: A. Latham-Gambi, ‘How Should We Teach the Johnson Government? (Possible) Pedagogical Shortcomings in the Face of (Arguable) Constitutional Vandalism’, U.K. Const. L. Blog (14th September 2022) (available at https://ukconstitutionallaw.org/))