Norms & Narratives in the Constitution of the United Kingdom: In conversation with Nick Barber

If you have a Prime Minister, President, or any other leader who flouts constitutional rules and presents the image that those of us who abide by the rules are suckers, then that will percolate all the way down the structure.”

In the newest episode of the RevDem Rule of Law podcast, assistant editor Gaurav Mukherjee talks to Nick Barber to discuss democratic backsliding in the UK, the role of courts in protecting democratic procedures, and the state of Parliamentary Sovereignty in the face of Brexit and COVID-19. Nick Barber is Professor of Constitutional Law and Theory at the University of Oxford, and a non-practicing barrister and member of Middle Temple. His published work includes The Constitutional State in 2011, Principles of Constitutionalism in 2018, and The United Kingdom Constitution in 2021. He was founding editor of the UK Constitutional Law Blog, and he was a co-author with Jeff King and Tom Hickman of the blog post that sparked the litigation in Miller.

Gaurav Mukherjee: I want to start off by asking you whether you think democratic backsliding is the correct framing to think about the changes in law, the breakdown in conventions, and the alteration of public discourse around the Rule of Law in the UK. Are there certain changes in law and policy that worry you? What are the types of changes that may be constitutionally permissible, but maybe objectionable to progressives? Is there a way in which we can tell these two apart?

Nick Barber: That is a great opening question and a very challenging one, too. This idea of democratic backsliding is the idea of the moment. Everybody seems to be writing about it. But it is often hard to pin down what backsliding is. I think that maybe democratic backsliding goes beyond mere changes to constitutional structures – beyond altering the role of the courts or affecting the way in which our legislators operate.

I think democratic backsliding is more of a cultural event than an institutional event. It is a shift in our expectations of government and of our leaders over time. That shift might push away from a model in which leaders are bound by law and the constitution and are responsive to the whole of the population.

I think this is a shift towards a “ruler-leadership,” that only speaks to one subsection of the citizenry. If we take democratic backsliding as being a cultural issue, can we see that in the United Kingdom’s constitutional structures? I think the answer is in two stages, the first a pessimistic answer, and the second a far more optimistic one.

Pessimistically, I think that if you look at the leadership of our Prime Minister Boris Johnson you might well feel a little depressed. There has been a real change in what it means to be a leader in UK politics. Boris has, through his actions and through his pronouncements, adopted a very different approach to being Prime Minister – to being a leader – than Theresa May, David Cameron, Tony Blair, or any other Prime Minister. That is worrying. What is this shift? I think that Boris Johnson is somebody who regards rules as things that you navigate around, or you break, if you think you can get away with it, whereas previous Prime Ministers regarded themselves as fettered by rules, even if they could evade them. We see this in a whole host of things that Boris has done. Perhaps the most prominent is the Partygate scandal, which I am sure many of your listeners have heard of, partly because it is just hilariously funny. I am sure that, around the world, people are having a good laugh at this.

During the period of lockdown, when everybody was told to stay at home, wash their hands, and see as few people as possible, it turns out that in Downing Street there were a whole series of parties being conducted with drinks and quizzes and frolicking in the Downing Street Garden. Now, at one level, this is not very serious at all. In terms of breaking the law, this is perhaps at the same level as speeding or parking on a double-yellow line. But, on another level, I think it is quite important because it shows that, in Downing Street, Boris Johnson looked on those rules as being rules for other people and not for him. He was willing to break the rules, thinking that he would not be found out, and those around him were prepared to accept him breaking those rules. But sadly, alongside that, you have got a whole host of instances where Boris Johnson has also shown himself willing to act contrary to the conventions that usually constrain power within the constitution.

Prime Ministers in the past have accepted binding themselves, but Boris Johnson is willing to break these conventions. We have the example of Peter Cruddas, who was appointed to the House of Lords against the advice of the House of Lords Appointments Commission. The Appointments Commission does not have legal power to issue any binding advice, but in the past Prime Ministers have accepted the rulings of that body, even if reluctantly. Boris Johnson did not do so. Similarly, when Priti Patel was accused of violating the Ministerial Code, Boris Johnson asked the Independent Adviser on Ministerial Interests to review her conduct. The adviser reviewed the conduct and found that she had broken the Ministerial Code by bullying one of her civil servants. And Boris Johnson just rejected the findings of that reports. Again, previous Prime Ministers might not have liked the outcome of reviews that established a breach of the Ministerial Code, but they would have accepted it. It was regarded as being a convention that they were stuck with the decisions of their reviewers. We could add the prorogation case to this. A couple of years ago, Boris prorogued [suspended] the Houses of Parliament to stop them interfering with Brexit. We might talk about that later on because the court stepped in to stop that prorogation. Also back in 2019, there were even suggestions that Boris might be willing to advise the Queen to refuse to give royal assent to legislation if that legislation went against his policies. That is something unheard of in modern politics.

These are examples of a form of democratic backsliding. Boris Johnson no longer regarded himself as being fettered by the constitutional norms in the way that his predecessors regarded themselves as being fettered. This is really serious. One of the things we do not think about enough in constitutional theory and scholarship is that the interpretation leaders give to their roles is, in itself, a constitutional act.

When you have a leader who is making it plain to the public that, if he can dodge rules or break them with impunity he will do so then that is not just a problem with his leadership. It is a statement about how powerful people relate to rules all the way down the constitutional structure.

There is that great proverb: the fish rots from the head down. The same is true of constitutional structures. If you have a Prime Minister, President, or any other leader who flouts constitutional rules and presents the image that those of us who abide by the rules are suckers, then that will percolate all the way down the structure. It will change the way in which people in general look on the constitution. So this is constitutionally, as well as legally, significant.

But I think there is a second side to this story. Boris Johnson has pushed this very unusual form of leadership upon the British constitution, one that challenges many of our constitutional fundamentals. But there has been an awful lot of pushback against him. I think that Boris Johnson’s position now is much more tenuous than it was when he took office a couple of years ago. Indeed, one of the oddities about Boris Johnson’s government is that it feels like a perilous minority government that is living from day to day in constant crisis, while in fact Boris Johnson has got a huge majority. He won a landslide back in Christmas 2019 not long ago. Whilst, at one level, we might be justified in worrying about a democratic backsliding in the UK because Boris Johnson has changed the norms that underpin leadership, on another level I do not think that he has been successful in that change. The consequence of that pressure is that he has weakened his position and his government, and sooner or later he is going to pay a price. It is very hard to imagine Boris now taking the conservative party into the general election.

If you were to analyze democratic backsliding in the United Kingdom, you might see this as a failed attempt. There has been resistance, not just from the opposition, but from within the [ruling] Conservative party to this conduct.

Now, the other question you asked me was: how can we tell the good from the bad?. That is fiendishly difficult. It is, again, a question of the outer limits of what is politically acceptable. I do not think there is any easy way of distinguishing the good from the bad in terms of constitutional change. All those questions that surround democratic backsliding – the role of the judges, the role of the legislature, the role of the leaders – are all politically loaded questions on which politicians in good faith are entitled to take positions.

Courts should be subject to political review from time to time. Politicians are entitled to be interested in whether judges are doing their job properly.

They are entitled to ask if the court system is working effectively, or if they agree with the outcomes of the cases that the judges are producing. They are, of course, entitled to shift the law. I think that the lodestone for testing whether the changes proposed by the politicians are on the acceptable side or on the unacceptable side is by thinking about this through the lens of integration. By integration, I mean the way in which the constitution draws people in together to the constitutional order.

We have to make sure that the changes that are made to the courts and the legislatures are such that they do not imperil the capacity of our constitutional institutions to answer and resolve disputes and disagreements within the constitution.

We do not push those disputes outside of the constitutional structures. A wise politician, no matter how power-hungry and power-mad, should realize that it is an asset – both for the constitution and for him or her as a leader – to have a legislature that is able to accommodate disagreement, and to have courts that people, by and large, regard as fair and legitimate institutions. They should realize that these are things worth preserving. I think that is the key test: do your changes imperil the capacity of constitutional institutions to effectively contain and resolve disagreement? Or are these changes ones that allow that process to continue?

Let us talk a bit about one of these constitutional institutions which can, in some cases, help arrest democratic backsliding. How do you see the role of courts in this kind of process? Have UK courts usually engaged in the kind of counter-majoritarian functions that courts in other jurisdictions are said to perform?

That is a tricky question. In constitutional scholarship there is a hot debate about how powerful courts can be. To draw a phrase from another area, there is the nightmare and the noble dream. The noble dream is that the courts can do everything, and we just need to stop worrying and trust the judges. And the nightmare is that courts can do nothing, and we should give way to despair.

I think the first thing I would say about courts as guardians against democratic backsliding is that you should not put too much faith in the courts. The courts are a very weak constitutional institution in many ways. First of all, they are weak because of their institutional structure. Courts only get to act when a case comes before them. That means that they are not well-placed to undertake a general roving role of reviewing what goes on within the constitution. We talked about Boris Johnson’s antics earlier on. A number of those touch on the courts, so the courts get involved peripherally. But very rarely can the courts get involved directly. So, the case-based method of the courts limits their capacity to fight back against democratic backsliding.

Secondly, the lack of enforcement capacity in the courts limits their capacity too. As lawyers, we tend to imagine that, when the court hands down a judgment, some sort of magic occurs and it automatically becomes effective. And often it does. But it becomes effective because, in the background there are executive institutions like the police and bailiffs that go along and enforce the rulings of the courts.

Courts depend almost entirely on the executive to make their rulings effective. That means that the courts’ capacity to control what the executive does is really limited.

The court does have some capacity to affect executive action – they are not completely powerless. But if you have an executive that is hell-bent on fettering the courts, there are limits to what the court can accomplish. So, there are two institutional constraints that mean we should not be too optimistic about what the courts can do: the case-based method of the court and the courts’ dependence on the executive for their effective functioning and carrying forward of their decisions.

A second set of reasons why you should not put too much weight on the courts is that democratic backsliding is a cultural phenomenon, one that is ultimately grounded in the population.

If you want to stop democratic backsliding, the way to do it is to persuade people in the political arena that what is going on is problematic and unattractive.

The courts have a very limited capacity to shape the broader culture or the constitutional culture in our society. There are things they can do, but primarily, if you want to fight democratic backsliding, the way to do it is through the political structures of the constitution. And if the courts go too far in being assertive in this context, I think there is often a risk that they lose their authority and perceived legitimacy in the community. They can come to be perceived by some in the community as being a roadblock or in opposition to the government. Then they are drawn into the raw political debate above which they should be trying to stand. And, more worrying still, once courts are drawn into that political debate, they can then be presented as the scapegoat by the executive. The executive can say that, if it were not for the courts, they would be able to accomplish Brexit. They can blame these annoying judges getting in the way. And then, going back to our earlier discussion, the courts lose their capacity to play that role as a resolver or mediator of disputes.

The courts need to remember that they have to maintain popular support for their position. They are a weak institution which relies on the general public for support. That limits how radical courts can be in pushing back against democratic decay.

If that is, as it were, the ‘nightmare side’, there is some truth as well to the ‘noble dream’ of courts. Courts are not powerless and do  some capacity to push back. I do not think we need to side with John Hart Ely and think that the only thing courts can do is protect process. But protecting the process of the constitution by making sure that the right processes have to be gone through is one of the things courts can do extremely well. I think that is what you see in the Miller cases in the United Kingdom. The first Miller case, for example, insisted that it was not possible for the United Kingdom Government to take us out of the European Union by executive action. There had to be a statute passed by Parliament before that move could be undertaken. Whilst it was politically controversial, I think it was much less politically controversial than if the courts had stepped in to say we could not leave the European Union. What the Supreme Court was saying was that there is a process by which it can be done. And it is a process which prioritizes the democratic branch of the constitution. Similarly, in the second Miller case – the prorogation case – the Supreme Court stepped in to stop the executive proroguing and suspending parliament for an extremely long period of time. Again, the court can say that this is not the judges imposing their political views on the population; this is the judges protecting and enabling Parliament. So I think that those processes are a good place to look for something that courts can do to prevent democratic backsliding. Courts are well-placed to shore up legislatures and the rights of citizens to participate in democratic processes. I think this is what the British courts have tended to do. They have tended to side with Parliament rather than opposing the executive. They are parliament-focused rather than executive-opposing.

Are our courts in the UK counter-majoritarian? I do not know. Counter-majoritarianism is a funny term, because, almost invariably, everything that courts do is opposed by lots of people. And given that courts often have to make decisions that people do not like, it might be quite common for them to hand down counter-majoritarian decisions. I think the key for a court is to avoid the impression that it is on one side or the other of a political debate. Sometimes the majority that is against it will be one coalition of groups, and at other times it will be a different coalition of groups. It is quite important that courts will not always be batting for one side or the other. Of course, in the United Kingdom since 2000, we have had the Human Rights Act and devolution legislation. Those are instances where the courts are pushed to a certain extent into the political realm and have to make decisions that will upset some political groups. But I think that, by and large, the United Kingdom courts have done that pretty well. And the amount of anguish and opposition that has been produced, while not absent, has been muted.

I am curious about how you think about the Judicial Review and Courts Bill, which is currently moving through Parliament. How different is it from previous attempts that Heads of Government in the United Kingdom have made to engage with the judiciary? A number of Prime Ministers have done this, including Tony Blair, David Cameron, and Theresa May. Is there something vastly different about this Bill? Is there something there that scares you?

I am afraid that I have only got a very boring answer to this one. First, you are right to say that all Prime Ministers since the dawn of time have had to engage with the courts. There is nothing remarkable or surprising about the Government producing legislation that shapes how courts do their jobs, creates tribunals, or manages the relationship between tribunals and courts.

The bare fact that the politicians are interested in that is not just unobjectionable, it is good. I want my politicians to be concerned about the administration of justice in the United Kingdom.

Your next question was whether what is going on now is materially different to what has been going on in the past. I do not think it is. There are two big debates that have been raised by the Judicial Review and Courts Bill. One area of dispute is the creation of the potential for quashing orders that are prospective only. The Bill will give judges the power to quash executive acts, but it will either suspend that annulment for a period of time or quash decisions that are made after this point instead of ones made before that case. I cannot really see why that is causing so much worry and anguish. All this does is give judges the capacity to issue prospective quashing orders. They will not have to issue those orders. It will be down to the discretion of the judges. And I am sure that we can all imagine situations in which prospective quashing orders make a lot of sense. I am sure we all remember the Canadian Language Act where, if there had not been the capacity to issue prospective orders, all of the laws of one of the provinces of Canada would have been annulled. So this seems to me to be a sensible measure.

The second area of controversy in the Judicial Review and Courts Bill concerns provisions that regulate the relationship between the courts and tribunals. These provisions seek to restrict the capacity for judicial review of tribunal decisions. First of all, this is not novel. These sorts of provisions restricting the capacity of courts reviewing what tribunals do go right back to the when tribunals first came into existence.

We have at least 50 or 60 years’ worth of history of Parliament producing rules that restrict the capacity of courts to exercise judicial review over tribunals. And we have the same number of years of courts circumventing those statutory rules to institute review of those tribunals.

When you look at the actual provisions in the Judicial Review and Courts Bill, they seem to be reasonably modest. Although they are trying to limit the capacity of the courts to review the decisions of the Upper Tribunal, they explicitly commit review of those decisions if they are made in bad faith or in violation of natural justice processes. So there still will be an outline capacity for the courts to exercise judicial review. Just think how flexible those terms are: bad faith and natural justice. Those are flexible enough to capture most really problematic decisions. I can imagine that the court might say that bad faith refers to decisions that look like they were made in bad faith. If decisions are severely adrift or look wildly irrational perhaps the court would be able to say that these appear to be in bad faith. And that is enough for the courts to be permitted to exercise judicial review over these decisions under this provision. And even if all that did not work there is no way that the Judicial Review and Courts Bill can stop the ultimate workaround for a very eager court that wants to review the decisions of the Upper Tribunal.

The workaround that we have seen in the Anisminic case and in Privacy International is to challenge the very idea that a decision has been made. If the Upper Tribunal made a really weird announcement, the courts could still say that the provisions in the Judicial Review and Courts Bill do not apply here. They could declare that no decision has been reached if the decision of the Upper Tribunal has flouted the law to such a degree that it was not even a decision. There is still that capacity left open to the judges. So, maybe I am being too sanguine – maybe I should be more worried – but it seems to me that the Judicial Review and Courts Bill is not something we should be panicking about. This is a part of a long history of the relationship between Parliament, courts, and tribunals being navigated. And it is not even the most extreme form of restriction on the capacity of the courts to oversee what the tribunals do. You might still have the impression that tribunals are basically executive bodies. But we should not forget that the Upper Tribunal is essentially a court. It has got a judge who sits as its head. It looks very much like a court for all practical purposes. So I do not think we should be alarmed that Parliament wants to leave a lot of discretion and autonomy to the Upper Tribunal.

It is interesting how these debates track some of the debates in India with respect to the ouster of jurisdiction of the ordinary courts when it comes to the tribunals. Courts in India have always said that the ordinary courts should always have the final word. Of course, this follows a long history of the Indian judiciary zealously guarding what it thinks of as its own realm.

Let us move now to a slightly broader question and one that might be slightly unfair. What do you think are the similarities between the phenomenon of democratic backsliding in the UK and the rest of the world? Of course, if you want to narrow it down a little bit, which might be useful, we could take, for example the relationship between the executive and judiciary, and think about the reaction to Miller. While the judgment was discursively contested in the UK from all quarters, there appears to be no indication that it would not be followed. This is very different from what has happened in certain cases in Poland and Hungary where both national and supernational court ruling have been ignored. How do you see the divergences and the similarities?

Well, that’s a very difficult question. Before I answer that, just one thought on India, since you were talking about it. I think that there is a certain legal logic to the proposition that the courts have to have the final say about the decisions of tribunals. Courts have to have the final say because, ultimately, they have the final say about the content of the law. If the tribunals are handing down decisions that have legal effect, then sooner or later the courts inevitably are put in a position where they have to say that there was a legal act by the tribunal that actually happened. I do not think that there is any way, through constitutional engineering, that you can stop courts playing that role. They can play that role by saying there was a decision, but they cannot review it. But they cannot play that role by saying that they cannot even review whether or not there was a decision.

As a matter of legal logic courts are compelled to be able to have the final say in whether a tribunal issued a legal decision. The structure of the constitution is such that you cannot completely protect tribunals from review by courts. It is logically impossible.

Now, you asked me a really difficult question about the comparison of democratic backsliding in the UK compared to the rest of the world. I think that is a question you should answer rather than me, Gaurav, because you are far better placed to answer it. My immediate thoughts are that perhaps the problem is less acute in the United Kingdom. It may be less acute because we have, historically, had less of a role for the courts in politics. The role of the courts has always been much more constrained than it has been in other systems. We have never had a strong form of judicial review in the United Kingdom, and that has meant that the courts have always been, in constitutional terms, in a subservient role to Parliament.

With regard to the Human Rights Act, the courts can issue a declaration of incompatibility, which says that a law runs contrary to the Convention rights. But the courts cannot strike down that legislation. If they issue such a decision it then goes back to Parliament. And Parliament could, if it wished, decide it that it wants to stick with the law. Maybe we have been lucky, but that has been quite a healthy discipline. This means that Parliament has not been put in the position where they can rail against the courts striking down a statute. Parliament has to decide if they want to keep this incompatible statute, or if they want to make the change. When put in that position, parliamentarians have decided, I think in every single case on a Section 4 declaration of incompatibility, that they will make the change. Because the weight is on Parliament, perhaps we have not built up that sense of tension between the political and the legal side of the constitution that maybe we have seen elsewhere.

The culture in the United Kingdom of democracy and the importance of Parliament as the place where these decisions have been made has been resilient, even in the face of Boris Johnson’s antics.

Maybe we have been lucky that we have managed to maintain a vibrant democratic culture in the face of some pressures. But that is what you need to foster and protect if you want to fence back against democratic decay.

The final point I will make is that it is important to the executive to maintain confidence in Parliament and in the courts. So sometimes I wonder if some of this democratic decay is short-sightedness on the part of the executive rather than a Machiavellian seizing of the moment to aggrandize its power. If you are a Prime Minister, you want people to obey the laws that you produce. The way in which you get people to obey the laws and accept your decisions is by having those laws voted on in a Parliament that should be regarded as containing different views and which resolves disagreements and by having your laws interpreted and applied by courts that are regarded as independent and slightly to one side of the state. And I think that that ultimately has been the consideration that has held back politicians in the United Kingdom from the sort of antics that we have seen elsewhere. It is self-interest as well as virtue.

This brings me to the question of Parliamentary Sovereignty. One of the first things that I learned as a first-year law student in India was that the UK Parliament is sovereign. It has the sovereignty to pass a law that could outlaw blue-eyed babies. I never fully understood why this metaphor travels so far and wide. But you have long argued that Parliamentary Sovereignty is largely a trope in the public law literature that is not particularly true, either as a descriptive or an analytic claim about the UK. In light of the majority that the current Government holds in Parliament, do you see the idea of “executive sovereignty” as being the central problem of constitutional thinking in the UK today? What are some of the other horizontal institutions apart from courts that can check democratic backsliding? And how well have they performed?

First, Parliamentary Sovereignty and my skepticism of it. My skepticism of Parliamentary Sovereignty stems from the question of what Parliamentary Sovereignty is. You often hear people talking about Parliamentary Sovereignty and blue-eyed babies are wheeled in, and all manner of other things are brought before us. But there is often a singular lack of clarity about what people understand Parliamentary Sovereignty to be in the first place. So, before we answer the question is parliament still sovereign, and is Parliamentary Sovereignty still a feature of the United Kingdom constitution, we really have to have a very firm grasp of what Parliamentary Sovereignty actually means.

Up until the 1990s, I think that Parliamentary Sovereignty was very simple and very clear. Parliamentary Sovereignty was a legal rule, which said that whatever the Queen-in-Parliament enacts is law. And if you had asked any constitutional scholar writing in the 1930s through to the 1960s, be they Dicey, Jennings, or Wade, they would have agreed with that statement. Parliamentary Sovereignty was a legal rule about the priority of sources in the constitution and the priority of instruments within that source.

My argument is that, as a result of our membership in the European Union and the decision of the British courts in the Factortame decision, that rule (whatever the Queen-in-Parliament enacts is law) disappeared.

We have a change in the way in which the sources of the constitution are hierarchically ordered and how the instruments in the constitution relate to each other. In particular, the idea that the most recent statute of Parliament is always supreme disappeared. I could talk all day about that now and, at one level, this is quite boring as a conversation because Parliamentary Sovereignty is fundamentally not a very exciting issue. It is about the technicalities of a particular rule that developed in the United Kingdom in the early part of the 20th century, and which disappeared in the face of the rise of the European Union as part of the United Kingdom’s constitution.

The second question you asked me – about the place of Parliament in the constitution more generally –  connects with that. Even if Parliament is no longer sovereign, it may yet still be supreme in the sense that it is the highest constitutional institution that we have. Its pronouncements can always be made law, even though it might have to jump through a few hoops before that is effective. The challenge you made to me was that maybe it is no longer true to say that Parliament is supreme; perhaps we should say that the executive is supreme now, and Parliament’s day has passed. This picks up on that glorious phrase of Lord Hailsham 30 or 40 years ago when he argued that in the United Kingdom we have an “elective dictatorship”. We have an election once every four or five years, and then a government is formed, but the Government can then do pretty much what it wants.

The evidence for this is that the executive is very rarely defeated in Parliament. The executive drafts legislation, the legislation goes before Parliament, Parliament almost invariably votes for that legislation, and any amendments to the current legislation are done with the executive’s approval.  The whips are often held up as being the villains of the piece here. The Government has officers who are called whips. Their job is to go into Parliament and pressure and encourage backbench Members of Parliament to toe the party line to vote for the Government.

So, when we hear descriptions of the United Kingdom constitution, they are often quite pessimistic about democracy. Parliament is in decline. Parliament is the poodle, the lapdog of the executive, meekly following the executive’s rulings. But I’m not sure that is right.

I think that is a mistaken interpretation of the United Kingdom constitution. Why? Well, I think what is missing is the extent to which the Prime Minister is dependent on Parliament.

The Prime Minister is the person who commands the support of the largest number of Members of Parliaments in the House of Commons. That means that the House of Commons gets to pick who the Prime Minister is. The Prime Minister then selects his or her ministers, but it is still the Commons that is there in the background. The Prime Minister has to make sure that he maintains the support of the House of Commons. So, indirectly, the House of Commons also gets to select the Cabinets. If you look at Cabinets, they are often a balance of different elements of the party to ensure the Prime Minister maintains its support.

If the Prime Minister loses the support of the Commons, he or she can be out of a job at any point during the time of the Government. So, the Prime Minister’s position, the executive’s governance position as the political branch of the executive, is quite perilous. It depends on the support of Parliament.

Now, going back to those whips: One of the jobs the whips do is to go from the front-bench to the back-bench to try and pressure back-bench Members of Parliament to vote in the way the ministers and the Prime Minister want. But they have a second job. They go from back-bench Members of Parliament to Government ministers and the Prime Minister and they keep the Government informed about the views and the wishes and the worries of the Members of Parliament in the House of Commons. When this is working well, as it usually does, this means that Government never proposes legislation that is not going to have the support of the majority of Members of Parliament in the House of Commons. The Government already knows before it puts down that legislation that it has got the support it needs to get that legislation through.

This is a small example, but back when David Cameron was Prime Minister, in the early days of his Government, there was a proposal for the forests in the United Kingdom to be privatized. And this was about as popular as a serious disease with the Conservative back-benchers. Nobody liked this idea. And this proposal just disappeared overnight because the whips went and spoke to the backbench Members of Parliament. Cameron realized that, even though he and Nick Clegg had a majority of Members of Parliament in the Commons, he did not have enough Members of Parliament to get this proposal through. Hence, the measure was never proposed.

I put it to you whether we should talk of an executive dictatorship. We have got this idea of the executive dominating, when, in fact, what we have is Parliament dominating the executive.

It is just that the outcome of that looks the same. You have the same symptoms. The reason that Parliament is not rejecting legislation on a regular basis is because the executive already knows what it can get through Parliament before it puts those Bills before the chamber.

Would your response change if you think about the range of legislation and executive orders relating to the pandemic that were introduced and voted on absolutely at the last minute? Members of Parliament were rarely ever given enough time to thoroughly scrutinize many of these executive orders, and in some cases they were delegated legislation. But do you think that your response is slightly different when it comes to law-making around the pandemic?

That is a good point. I think there was a brief moment, six months ago or so, when Parliament was unable to sit, so the executive had to act, and it was acting pretty freely. It was acting under a pre-existing legal structure, so it was acting through structures that Parliament had created. But because this was a crisis, I think it is fair to say that the legal niceties of those pieces of legislation really were put to one side. It was a case where the executive could just act.

There are two qualifications to that. First, this was during a global pandemic and a crisis that we have never really seen and hopefully never will see again. So, there was that brief moment in which the political rules of the game changed. The second qualification is that the Government was accountable for what it had done when Parliament came back again. It was not that all of that was just written off. We now see our Parliament scrutinizing what the Government did during that period, asking whether the rules, for example, on the contracts that were given for personal protective equipment were done properly and examining whether the rules introduced were suitable. I think it would be a mistake to look on that period of COVID as revealing the truth of the United Kingdom constitution. This was a moment at which an exceptional crisis hit and the constitutional structures, I think, did shift to accommodate that crisis. And now we have returned to something that is more like a normality.

If you want to see a moment of constitutional crisis at which I think the underlying structure of the United Kingdom’s constitution was exposed, go back to 2019.

During the first part of Boris Johnson’s Government, it was a minority government trying to get Brexit through. There you really did see the way in which the Government had to look for votes.

The negotiations that usually went on behind the scenes between Conservative back-benchers and the Government were suddenly made public. We saw these negotiations happening in real time, including the negotiations with opposition Members of Parliament to get measures through. I think if you’re looking for a crisis that exposes the truth of the United Kingdom constitution that is the moment to look at: the 2019 Government, when all those internal negotiations became external.

With the final question I want to ask about how you see your role as a public law scholar. You were one of the authors of the blog post that is said to have triggered the litigation in Miller. Did that experience change how you saw the space for public law scholars in pushing back against certain processes of democratic backsliding?

I think public law scholars as scholars have a role to play but, again, it is a limited role. I think backsliding is a social phenomenon and there is a limit to what you can expect public law academics to achieve. It is not nothing. The role of the particular academic is changing very quickly, and it has changed very dramatically. The thing that has changed is the thing that we are using right now –  the internet. When I first became an academic back in the late 1990s, the internet was there, but it was in relative infancy. If you wanted to comment on a case or discuss some constitutional event, you wrote your article, you sent it off to a journal, which sat on it for a few months and then if you were lucky, it got published six or seven months after you wrote it. The internet has given us the capacity to comment on events in real time. And I think that does shift how we should regard our roles as academics.

One of the roles we can now play is that of interrogators of the courts and of Parliament. We can provide a particular type of scrutiny which those who are not legally skilled would perhaps struggle to provide. You focus on democratic backsliding, and we have a role to play there. But more importantly, I think our role should be to make the judges’ life miserable.

The judges and the courts exercise considerable power to develop the law and hand down decisions in particular cases. This type of power is mediated through the language of the law, through case law, and through legal reasoning. That means it is quite difficult for people who do not have legal training to engage with. But, as academic lawyers, we are really quite well-placed to exercise scrutiny over what the judges are doing.

For most non-academic lawyers it is problematic to criticize judges because they might appear before them next week. So I think I would encourage academic lawyers to be more critical of judges and more willing to stand up and examine judicial reasoning on behalf of a public that perhaps lacks the skills to do that. We should act as the bridge between the public and the judges, and we should be willing to be critical of the judges when we’re undertaking that task.

The transcript has been edited for length and clarity

In collaboration with Alexander Lazović and Oliver Garner

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