A. H. BirchLawyers like to make as much sense as possible of the material in front of them, transforming it, if they can, from a jumble of decisions and remarks into a coherent whole. For constitutional lawyers that habit of mind is both a blessing and a curse. It is a blessing because it causes lawyers to look for subtleties others miss (albeit sometimes subtleties they themselves create). It is a curse because when the material is generated by underlying mechanisms and ideas that fundamentally conflict, it leaves lawyers at a loss, or, worse, going round in circles.

The recent controversy played out in this blog, in the pages of The Times, and elsewhere about whether a UK government could procure from the monarch a veto of any bill passed by both houses of parliament without government support is an example of the curse. As A.H. Birch pointed out more than 50 years ago (A. H. Birch, Representative and Responsible Government: an Essay on the British Constitution London: Allen and Unwin, 1964), the British system of government encompasses two very different, often conflicting views of how it works. One view, perhaps more familiar to lawyers, is the constitution as it looks from Westminster. According to this Westminster view, Parliament, and especially the House of Commons, sits at the centre of the system. The Commons is, with the aid of the Parliament Acts 1911-49, legislatively supreme, and it makes and breaks governments by granting or withholding its confidence. Ministers, though not technically its delegates, are at its beck and call. It is the ‘cockpit of the nation’, the centre of political attention. As a result, although the House of Commons should not seek to administer the country, it is the ultimate source of authority for those who do. The other view, the Whitehall view, posits that the Crown, now largely in the form of its ministers, is the centre of the system. Effective government requires ministers to be able to act quickly and authoritatively. On this view, parliament is peripheral. It can assist effective government by passing legislation when ministers ask, but otherwise it is a side-show.

These two views map on to different conceptions of democracy. The Westminster view corresponds to representative democracy in the tradition of J.S. Mill. The Commons encompasses the whole nation, not just the current majority party, and its deliberations allow the country to meet the definition of democracy as government by discussion. The Whitehall view corresponds to what I have called elsewhere ([2011] Public Law 490) the Hilary Armstrong theory of the constitution, in honour of the former Labour chief whip who advocated it at the time of the debate on the report of the Wright Committee. The idea is that democracy means choosing between a few, ideally two, party manifestoes, presented to the electorate by party leaders who are, effectively if not legally, candidates to become prime minister. The only role of elected MPs is to support their leader and to implement their manifesto. All other forms of parliamentary activity are illegitimate and undemocratic. Parliament has no collective identity or interests. It is merely a battle field for the parties. The Armstrong theory is a form of plebiscitary democracy or Schumpeterian competing elite democracy, with an added element of binding party manifestoes.

Seen from Westminster, the government veto proposal looks outrageous. Ministers, whose democratic authority on this view derives solely and entirely from the House of Commons, would be frustrating a decision by the only democratic element in the system. From Whitehall, however, it looks quite reasonable. Parliament should not be allowed to frustrate democracy as expressed in the manifesto of the governing party and in the person of the Prime Minister.

No plausible interpretation of the system exists that accommodates both views. Exchanging historical events as precedents takes one no further because those events were generated by people acting in accordance with different theories. The system bumps along without theoretical resolution but causing very few practical difficulties in periods when a single party government is backed by a comfortable single party majority and only the occasional difficulty in periods of stable coalition. The problem is that we are now in a period of minority government and face a time of major instability in which the party system might change radically. In these circumstances, the incompatibility between the two views can no longer be ignored.

All one can say from an interpretive, as opposed to a normative, point of view is that during the second half of the 20th century the Whitehall view was dominant but in the 21st century, especially since 2010, the Westminster view has made advances. These include the Wright Committee reforms (I declare an interest as a member of the Wright Committee); section 3(6) of the Constitutional Reform and Governance Act 2010, which requires the Prime Minister to ensure that civil servants are aware of ‘the constitutional significance of Parliament’;  the Fixed Term Parliaments Act 2011, which shifts the power to call elections to the House of Commons and legitimises the idea that the Commons can change the government without holding an election (I declare another interest as the author and sponsor of an earlier Fixed Term Parliaments Bill); and the House taking control of its own proceedings on 25 March 2019, in effect carrying temporarily into effect the final proposal of the Wright Committee that the House should vote on its own agenda, subsequently passing the European Union (Withdrawal) (no. 5) Act in the teeth of government opposition.

As for the future, I can only see a continuation of the conflict. On the Whitehall side, public opinion has taken badly to parliament’s attempts to generate a collective view on Brexit. Strikingly, in one survey 54% of respondents agreed that the country needs a ‘strong leader who will break the rules’, a result suggesting a disturbing trade-off between promoting parliamentary debate and preserving support for the rule of law. Supporters of the Whitehall view can say that their view, in contrast to the Westminster view, appeals to the many voters who ‘just want politicians to get on with it’ and who hear parliamentary debates as ‘bickering’.

On the other hand, the political conditions that generated support for the Whitehall view in the second half of the 20th century are disappearing. Broad support for the Whitehall view rests on the main opposition party’s belief that, because it might soon form a government of its own, it has just as much an interest as the government in keeping parliament at the periphery of politics. It also rests on backbenchers having little interest in the work of the House and caring only about their prospects for ministerial office. The problem with the first condition is that the leadership of the main opposition party has no ministerial experience and that many of its backbenchers distrust the leadership and so have no desire to let it govern unchecked. And the problem with the second condition is that the combination of the Liberal Democrats’ painful experience in coalition and the rise of the Scottish National Party and the DUP means that almost 10% of MPs, enough in many circumstances to prevent the formation of an overall majority government, have no interest in ministerial office. Their interest is to strengthen parliament, not the government.

The crucial question, beyond but also tied up with the politics of Brexit, is where the conflict will next take the system. One possible adaptation is to grant minority governments more powers, so that they can behave more as if they were majority governments. An adaptation in the opposite direction would be to make minority governments even weaker to encourage the formation of majority coalitions, perhaps including changing the electoral system to reduce the penalty smaller parties seem to suffer for compromising with larger parties in coalitions.

The problem with the strengthening option is that it risks handing great power to extreme parties who have fallen well short of majority electoral support. In a highly fragmented election, such a government could come to power on a very small vote. The problem with the weakening option is that, unless the British electorate very rapidly moves away from its hostility towards the slow politics of negotiation between parties in search of consensus, it will alienate voters even more and send them in the direction of those same extremes. There is danger in every direction.

David Howarth, Professor of Law and Public Policy, University of Cambridge

(Suggested citation: D. Howarth, ‘Westminster versus Whitehall: Two Incompatible Views of the Constitution’, U.K. Const. L. Blog (10th Apr. 2019) (available at https://ukconstitutionallaw.org/))

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