The government of the United Kingdom has always had an unwritten constitution, and that position has been defended on the basis that it allows governments a degree of flexibility in dealing with complex situations. That position has been tested to breaking point in recent months. Here are a few concerns.
1. The Conservative Party is standing on a manifesto which commits them to change the basis on which laws are made and reviewed. The Manifesto states:
After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords …
2. At the same time as Britain withdraws from the governance safeguards imposed by the European Union, it is proposing to weaken other safeguards (such as human rights and judicial review) which derive from other sources. The Manifesto again:
We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review … is not abused to conduct politics by another means or to create needless delays.
3. The present government is firmly committed to legislation on Europe that will give Ministers extensive ‘Henry VIII powers’ – the power to change laws without scrutiny or the prior approval of parliament. The election was called, not because Parliament had failed to agree the EU Withdrawal agreement, but because it had demanded the rights to scrutinise the bill that enacted those powers.
4. The government has responded to criticisms in the media, the courts and in Parliament by threatening to close them down – most recently threatening Channel 4’s licence to operate.
5. Members of the government have no scruples about lying about its aims, objectives, situation, process or outcomes. There is a depressing catalogue of falsehoods listed by Peter Oborne. It is probably no less dangerous, however, that so many government ministers don’t do detail, and say things that are false simply because they don’t know any better. Recent examples are the confusion between the EU and the European Court of Human Rights, the mistaken statements about state aid and the EU, or the ill-informed statements made by Johnson and Patel, in the wake of the recent terrorist attack, about the release of prisoners on licence.
These things threaten three key elements of any democracy. They are the rule of law, public accountability, and open discourse and deliberation. The threat to democracy is chilling.