Riding the populist wave: the UK Conservatives and the constitution

At a recent Constitution Unit event (available in video and podcast form), Tim Bale discussed the challenges posed to mainstream conservatism by the recent rise in successful populist politicians. Here, he sets out those challenges, how conservatives have traditionally faced them, and concludes that the UK Conservative Party is so determined to ‘unite the right’ and supress support for a challenger party that it risks transmogrifying into a populist radical right party.

A few weeks ago I was diagnosed with costochondritis – a minor and surprisingly common condition involving the cartilage that joins your ribs to your sternum but which produces chest pains that make some people suffering from it worry they’re having a heart attack.

The standard treatment is to take non-steroidal anti-inflammatory drugs such as ibuprofen. For me this presented a bit of a dilemma. Like many other people, I don’t tolerate ibuprofen: it irritates my gastrointestinal tract – something I’m wise to avoid doing because I also suffer from something called Barrett’s oesophagus, which, if you’re unlucky, can turn cancerous. So, on the assumption that the costochondritis would eventually resolve itself, and given the fact that the discomfort involved was irritating but far from overwhelming, I decided just to put up with it.

I’m sharing this bit of my recent medical history not because I particularly enjoy talking about it but because it produces a useful analogy for a question that I want to ask – namely, are politicians on the mainstream right so concerned about countering the rise of populist radical right parties that they end up proposing things that risk doing more harm to society and to the polity than if they were simply to admit that those parties are now a normal rather than a pathological feature of contemporary politics?

The background to this is the book I’ve recently co-edited with Cristóbal Rovira Kaltwasser, called Riding the Populist Wave: Europe’s Mainstream Right in Crisis. We look at how mainstream right parties – which aren’t written about anywhere near as much as their counterparts on the left or, indeed, on the far right – have handled (or in some cases failed to handle) some of the challenges that they’ve been facing for the last three or four decades. Over that time, they’ve suffered significant electoral decline, although, as we show in the book, the extent of that decline varies not just between countries but between party families, with Christian democratic parties suffering more than conservative parties, which, in turn, have suffered more than (market) liberal parties, which have actually managed to hold pretty steady.

We argue that the difficulties they’ve faced are partly down to their having to cope with something of a double whammy.

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The Dissolution and Calling of Parliament Bill: why the House of Commons should retain control over dissolution

Next week MPs debate the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act (FTPA) and revive the former prerogative power of dissolution. Meg Russell, Gavin Phillipson and Petra Schleiter, all of whom gave evidence to the parliamentary committees considering FTPA repeal, argue that the government’s bill is flawed. It seeks to keep the courts out of dissolution decisions, but risks drawing them in, and risks politicising the role of the monarch. Removing the House of Commons power over when a general election is held, and returning it to the Prime Minister, would be a retrograde step.

On 13 September, MPs debate the remaining stages of the government’s Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA) and revive the former prerogative power of dissolution. Three parliamentary committees have considered FTPA repeal, to which all of us have submitted evidence. This post summarises key flaws in the government’s approach identified by the committees, and areas where expert evidence suggested solutions to address these flaws.

The post does not argue for retention of the FTPA. Instead it proposes a solution to the problems with the bill that would leave parliament at the heart of decision-making. It makes three key points:

  1. While aiming to exclude the courts from the question of dissolution, the government’s bill instead potentially draws them in.
  2. Placing sole reliance on the monarch as a check generates uncertainty, and risks politicising their role.
  3. The solution to both of these problems is to retain a requirement for the House of Commons to vote on the Prime Minister’s request for a general election by simple majority. Concerns that this could recreate the 2019 Brexit deadlock are groundless.

Our core argument is that maintaining the Commons’ ultimate control over dissolution, while fixing the defects of the 2011 Act, would be a better solution.

The bill seeks to exclude the courts from dissolution but risks drawing them

The bill’s central objective is to return the power to dissolve parliament to the monarch, to be granted on the Prime Minister’s request – that is, to restore the pre-FTPA status quo. Clause 3 (‘Non-justiciability of revived prerogative powers’, commonly referred to as the ‘ouster clause’) seeks to exclude the courts from considering cases relating to dissolution. The courts have never intervened in dissolution decisions (the 2019 Supreme Court case was on prorogation, which is different). But inclusion of the clause suggests that the government perceives some risk of judicial intervention if it attempts to revive the prerogative.

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Parliament has the right to reverse judicial decisions, but governments must be careful not to undermine the important role the courts play as a check and balance in our unwritten constitution

The Independent Review of Administrative Law provoked much criticism and concern when it was announced by the government, but its final report was less radical than many predicted. In the last of our series of posts from speakers at our June conference on the government’s reform agenda, Lord Faulks speaks of the work of the review panel, which he chaired, and the government bill that resulted, which went further than the review recommended in terms of limiting judicial review.

The government has now published the Judicial Review and Courts Bill, which has had its first reading in the House of Commons and will proceed through its remaining parliamentary stages in the autumn.

The Independent Review of Administrative Law, which I had the privilege of chairing, will now be a footnote in the development of the law in relation to judicial review. The panel no longer exists and its members have returned to their normal pursuits

I would like to think, however, that we made a useful contribution to the debate. There were some commentators who thought the setting up of the review was ‘sinister’ and that our conclusions would inevitably lead to the radical reform of judicial review. I can assure those who said this that the review was genuinely independent, in the sense that we reached our conclusions entirely free from any interference by government. We were, however, influenced by the many high quality submissions that we received. Whatever our preliminary views might have been, we approached our task in an open way and without any predetermined conclusions.

The response by the government was at least initially, that it wanted to go further and it set in motion a further consultation. That was a course, it seemed to me, that it was entirely open to it.

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The Dissolution and Calling of Parliament Bill – a return to constitutional normality?

Alison Young argues that the Dissolution and Calling of Parliament Bill transfers power from parliament to the government, and not to the people, and that it is wrong to place the blame for the extraordinary events of 2019 on the provisions of the Fixed-term Parliaments Act.

The Fixed-term Parliaments Act 2011 (FTPA) has not had a good press. So much so, that a promise to repeal the Act was included in the 2019 manifestos of both the Labour Party and the current Conservative government. However, as the second reading of its replacement, the Dissolution and Calling of Parliament Bill demonstrates, the apparent consensus ends there. There appeared to be two strong themes to the debate. First, how far does the FTPA’s replacement transfer power from parliament back to the government, or from parliament back to the people? Second, to what extent did the FTPA cause the difficulties – however defined – for the then Conservative minority government in 2019?

Turning back the clock

The FTPA placed the prerogative power of the dissolution of parliament on a statutory basis. It fixed the terms of the Westminster parliament to five years, setting the dates for general elections. It provided two ways in which parliament could be dissolved earlier. First, it was possible for two-thirds of the members of the House of Commons to vote in favour of an early parliamentary general election. Second, dissolution could occur following a vote of no confidence, if, within a two week period, it proved impossible to form a government which had received the backing of a vote of confidence from the House of Commons.

The Dissolution and Calling of Parliament Bill aims to return the Westminster parliament to the position prior to 2011. It repeals the FTPA (section 1) and ‘revives’ the prerogative power to dissolve parliament and to call a new parliament (section 2). However this is interpreted, it is clear that the bill’s intention is to ensure that parliament can be dissolved and recalled ‘as if the Fixed-term Parliaments Act 2011 had never been enacted’ (section 2). Fixed terms of five years are now replaced with a maximum five-year term (section 4). Moreover, the bill seeks to make the dissolution and calling of parliament non-justiciable (section 3) – arguably making the prerogative powers even less subject to judicial review than was the case prior to 2011.

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