The constitution has consistently felt under strain in recent years, following a succession of crises. Alison Young argues that a written constitution is not necessarily the solution to this problem, concluding that it is important to ensure that key constitutional guardrails are not just defended against abolition, but protected from gradual degradation as well.

Ever since the outcome of the Brexit referendum in June 2016, it seems like the UK constitution has lurched from crisis to crisis. Even after negotiating Brexit, the UK had to deal with a global pandemic – something, it would appear from hearings of the Covid-19 inquiry, for which the UK was not fully prepared.

With commentators naturally immersed in these key issues, there has been less attention paid to other, quieter, aspects of constitutional reform. The Dissolution and Calling of Parliament Act 2020, for example, appears to have barely registered with the general public. There is probably even less awareness of the changes to the oversight of the Electoral Commission provided for in the Elections Act 2022. Yet both reshaped the UK constitution.

The first returned the UK constitution to a system in which parliaments have a maximum length, abolishing the requirement for them to have a fixed term. This was done by ‘reviving’ the monarch’s prerogative power to dissolve parliament, giving rise to a general election. This also reinstated the ability of the government to advise the monarch on when the dissolution of parliament should take place. Under the Fixed-term Parliaments Act 2011, the House of Commons played a greater role in determining whether parliament could be dissolved early. This required either a vote in favour of an early general election by two-thirds of the members of the House of Commons, or a successful vote of no confidence without a further vote of confidence in a government in the following 14 days. However, as the Early Parliamentary General Elections Act 2019 demonstrated, this could be circumvented by an Act of Parliament – this also requiring the consent of the Commons, as well as the House of Lords and the monarch. The 2020 Act makes it clear that neither the House of Commons nor the courts are required to approve or able to check the exercise of this revived prerogative power.

The second empowers the Secretary of State to prepare a Strategy and Policy Statement for the Electoral Commission. This is designed to set out the ‘strategic policy priorities of His Majesty’s Government relating to elections, referendums and other matters in respect of which the Commission have functions’ and ‘the role and responsibilities of the Commission in enabling his Majesty’s Government to meet these priorities.’ The Commission must have regard to this statement when carrying out its functions. The Speaker’s Committee on the Electoral Commission may examine the performance of the Commission in upholding its duty to have regard to the Strategy and Policy Statement. Whilst this may seem innocuous, concerns arose as to the extent to which this may compromise the independence of the Commission. These concerns were exacerbated by the reports of the Levelling Up, Housing and Communities Committee and the Speaker’s Committee, both of which were, as required, consulted on the draft of the government’s first Strategy and Policy Statement. Some of these concerns remained after the government’s revision of the Statement.

These may seem to be fairly innocuous changes – all part of the constant evolution of the UK constitution. Yet they have an impact on the checks and balances which underpin it. In my new book, Unchecked Power?, I argue that checks and balances are essential for a legitimate government. Yet, there is evidence that these can be slowly eroded, often with little, if any, public awareness. Whilst the UK constitution does ensure that checks and balances are not completely obliterated, it is less able to stop a series of constant, seemingly acceptable erosions.

Why checks and balances?

Checks and balances have never really grabbed the headlines. They have also been subject to recent criticism. Checks and balances may go too far, preventing governments from performing the important task of governing the country. This may be even more important when responding to an emergency. Enforcing strict checks and balances may prevent government from acting swiftly when needed, potentially even endangering lives.

This argument is more concerned with when and how checks take place than a rejection of them as a concept. It may explain why the Covid-19 inquiry is taking place after the pandemic. Whilst there are benefits to granting governmental bodies greater leeway in times of emergency, there is also value in checks occurring after the fact. Lessons can be learned to ensure a better response to emergencies in the future.

Checks and balances do not always hinder – and may even facilitate – the achievement of government policies. Oversight may ensure that there are adequate supplies of emergency equipment, that medical advice is sound and acted on appropriately, and that public procurement contracts are fair and provide value for money, for example.

A more radical criticism is that checks and balances are unnecessary. Why should we check the powers of an elected government? After all, the government must have the backing of the electorate. Any government is normally formed by members of the political party that won the last general election, with complications arising in a hung parliament , where a coalition government may emerge. Any check on its powers could be seen as thwarting the will of the people. The only check we need on the government is a general election. Any government will then stand or fall to the extent that it can maintain the confidence of the House of Commons.

The danger inherent to this criticism is that it assumes that, once in power, any government will uphold good standards of constitutional behaviour and act to find common ground amongst a series of different minority interests. What if these assumptions no longer apply? We may then need checks and balances to ensure constitutional principles are upheld and deliberation is preserved.

Are checks and balances being eroded?

It may seem hard to argue that checks and balances are being eroded in the post-Brexit constitution when faced with the events of 2022. Surely any system that can see three Prime Ministers in one year must have robust checks and balances? This claim is reinforced further when we take account of partygate. However, when we examine events more closely, it also reveals weaknesses in our system.

Whilst checks and balances may appear robust in moments of crisis, they may be less capable of dealing with a series of smaller erosions which pass under the radar. Boris Johnson did not resign as Prime Minister when issued with a Fixed Penalty Notice for breaching the Covid regulations. Nor did his eventual resignation relate purely to the investigation into whether he had misled parliament. Instead, he resigned in response to the Chris Pincher affair, when it became clear that Johnson had known more about the allegations concerning Pincher’s conduct when he had appointed him as deputy chief whip than had previously been revealed. Johnson’s departure also came after a record-breaking number of ministerial resignations in response to this revelation. The Pincher event was probably the final straw, yet another of a series of criticisms of Johnson’s behaviour whilst Prime Minister. How far must any Prime Minister go before their conduct tips the scales? Is this decided by the House of Commons, the people, or the elected members of the political party from which the Prime Minister is selected?

The Partygate affair also illustrates another weakness. As Peter Hennessy and Andrew Blick have argued, the UK constitution relies on ‘good chaps’ performing their roles in a manner that upholds standards of constitutionalism. This entails an acceptance of these standards and a willingness to be held to account when conduct falls short. Partygate illustrates that this may not always be the case. Prior to Partygate, the government was criticised for proposing a vote to block the suspension of Owen Paterson, despite the suspension being recommended in a report by the Committee on Standards. Paterson later stepped down as an MP, and the government did then table the report.

Nevertheless, the tactic of criticising procedures as opposed to accepting scrutiny continued. When Johnson resigned as an MP in June, his resignation letter referred to the Privileges Committee as a ‘kangaroo court’ and claimed that he was ‘being forced out of parliament by a tiny handful of people, with no evidence to back their assertions’, following a report that he claimed to be ‘riddled with inaccuracies’. The letter was written during the two-week period in which Johnson had the opportunity to reply to the Committee before they finalised and published their report. His resignation letter made it clear that the Committee had concluded that Johnson had misled parliament and that he would be suspended for more than 10 days, triggering a potential recall petition. Johnson’s final punishment was increased by the Committee in the light of the fact that he had effectively leaked the contents of a confidential report, which constituted a further breach of parliamentary rules. It also came to light that, during the time the Committee was investigating Johnson’s conduct, members of the Conservative Party had interfered with its work.

A matter for concern?

Partygate is only one incident. Yet it provides a neat summary of a concerning trend. Constitutional guardrails are in danger of being bent out of shape. It can take a lot before checks and balances can effectively hold an MP or a minister to account for their behaviour. Couple this with a weakening acceptance of the need for checks and balances and a growing disrespect for such mechanisms, and we can begin to question how far the UK exemplifies a democracy where governments are accountable, or is becoming more populist, where appeals to ‘the will of the people’ override any call for effective checks.

I do not think there is clear evidence that the constitution is beyond repair. At least not yet. But the post-Brexit constitution has not seen a move in the right direction. There has been a continued growth in governmental power and a steady erosion of constitutional guardrails.

The answer may not be that there is a need for a written, entrenched constitution, though I can understand why this may seem appealing. Legal checks and balances are not always the most appropriate, although statutory underpinning of political checks and balances may be useful. We also need to think carefully about how such a constitution would be made, its content, and its future interpretation. All of this would take time. There is also no guarantee that this would lead to a change in behaviour.

If we are to move forward, we need to focus on how checks and balances further responsible and accountable government, facilitate good government, and prevent abuse of power. We also need to be just as vigilant to ensure that checks and balances are not being gradually bent out of shape as we are to threats that they be removed. 

Alison’s new book, Unchecked Power? How Constitutional Reforms Are Threatening UK Democracy, was published on 28 November by Bristol University Press.  

About the author

Alison Young is the Sir David Williams Professor of Public Law at the University of Cambridge and the author of Unchecked Power? How Constitutional Reforms Are Threatening UK Democracy.