The UK should revive its constitutional tradition, argues the philosopher John Gray. We should scrap legislation such as the Human Rights Act (HRA), he says, and revert to an “ancien regime” where the only constraints on parliament were political. Gray’s isn’t a solitary voice; the current Conservative government was elected largely to push back against constitutional changes of the last half century. Yet for many, Gray’s call for the removal of substantive legal restraints on parliament is anathema, a recipe for diluting our basic rights and freedoms. I think there’s much to be said for Britain’s constitutional tradition, not least its capacity to secure legitimacy for political decisions and its potential to help rehabilitate the left.
When it comes to constitutions, political scientists typically speak of two ideal types. These are legislative supremacy constitutions and higher law constitutions.
Under a legislative supremacy constitution, a country’s parliament has supreme law-making authority. This means that, in theory, legislators can pass any law they like, they “can do no legal wrong”, as the academic William Roberts Clark puts it.[1] The only constraints they face are political in nature, whether there’s a majority for the law they wish to enact. Another term for this type of authority is parliamentary sovereignty.
Legislative supremacy constitutions are based on two principles. One is that only elections can legitimise law-making authority, and the other is that a country’s laws must represent the will of the people (as expressed through parliamentary majorities). For these principles to stand, there can’t be any rules limiting what a parliament can pass. If such rules were in place, then authoritative law would exist above elections and the public’s shifting preferences. Hence, under this type of constitution, no body or institution can legally bind a parliament.
A higher law constitution takes the opposite approach. It entrenches legal constraints on what a legislature can pass, with these rules set out in a single document that usually contains a bill of rights (think the US constitution). Within this framework, judges are empowered to decide whether laws comply with constitutional rules, and legislation that they deem unconstitutional will be struck down. In higher law constitutions, lawmakers “can do legal wrong”, to cite Roberts Clark once more. Instead of popular legitimacy and responsiveness, the priority for higher law constitutions is protecting individual rights. In particular, this sort of constitution seeks to defend these rights from state power and the tyranny of the majority. Higher law is underpinned by a liberal ethos.
Traditionally, Britain’s constitution conformed with the legislative supremacy model. As the scholar Philip Norton writes, “Parliamentary sovereignty has been … the cornerstone of the British constitution”.[2] Yet since the 1970s, elements of higher law have been incorporated de facto into our political landscape.
Perhaps the most significant step in this direction was our membership of the EU. Parliament’s passing of the 1972 European Communities Act (ECA) provided the legal basis for our entry into the bloc. The ECA gave the force of law to all existing and all future European regulations, so that when rules were agreed at the European level, they were automatically binding on the UK. The “assent of Parliament [was] not required”, as Norton states.
Our membership of the EU also gave European law precedence over UK law, which in practice further diluted parliamentary sovereignty. This was made explicit in the 1990s by the case of Factortame vs. Secretary of State for Transport, which established that British courts could disapply parliamentary statutes judged incompatible with EU law.
Another major change was the HRA, which was passed in 1998 under Tony Blair’s Labour government and incorporated the European Convention on Human Rights into UK law. Not only did this Act create something akin to a bill of rights, it also expanded the power of judicial review by enabling judges to declare laws passed by parliament incompatible with the HRA (though parliament retains discretion over whether to comply with these judgements). As the minister who introduced this statute commented at the time, the HRA “may be described as a form of higher law”.
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Why did the UK undergo such significant constitutional changes? The move towards higher law stemmed largely from international and domestic factors. Internationally, the rise of what political scientists call the “new constitutionalism” provided Britain with opportunities to participate in higher law structures, such as the EU. Domestically, certain economic and political conditions motivated us to take part in these structures.
The new constitutionalism – or the global spread of higher law arrangements – is rooted in the Second World War. Before this war, legislative supremacy was the norm and higher law was the exception, but afterwards, the pendulum swung the other way, for a number of reasons. Firstly, the evil of fascism made it patently clear that states could do wrong and individual rights needed protecting. Secondly, popular complicity in fascism resulted in there being less regard for ‘the people’. And finally, America – the historic progenitor of the higher law model – emerged as the world’s leading power and was directly engaged in post-war reconstruction. These factors combined to precipitate the new constitutionalism.
When the new constitutionalism started to manifest in Europe in the 1950s, in the form of the European Coal and Steel Community (ECSC), Britain remained firmly wedded to the principles of parliamentary sovereignty. Our prime minister at the time, Labour’s Clement Attlee, refused to join the ECSC on the grounds that it would require Britain to hand over considerable control of its economy to “an utterly undemocratic” higher authority.[3] Yet by the 1960s the UK was seen to be in the economic doldrums, the “sick man of Europe”, and so we subordinated principle to material interest and sought membership in the bloc. In joining what was then the European Economic Community, we placed ourselves in a higher law framework for the first time in history.
It wasn’t just economic factors that led us to participate in the new constitutionalism; by the late 1980s the mainstream left had developed a political interest in higher law. As the political economist Helen Thompson points out, Labour in this period not only suffered a string of election defeats to the Tories but also lacked a “clear electoral strategy for returning to power”. As a result, Labour activists and politicians started to ask how they could restrict “the Conservatives’ freedom of action” without having to win at the ballot box. European Commission president Jacques Delors provided them with an answer in his speech to the 1988 Trade Union Congress, where he spoke of entrenching “social rights” at the supranational level away from national governments. Labour embraced this idea of using higher law arrangements to protect left-liberal policies from electoral politics, resulting in its abandonment of Eurosceptism and its promotion of measures such as the HRA.
In more recent times, there has been a pushback against our move towards higher law. Brexit shows this most clearly, but it is also evident in the Conservative party’s manifesto pledge to “update the Human Rights Act” – which could mean its repeal – and in the current government’s insistence that the “principle of parliamentary sovereignty” takes precedence over international treaties. A reassertion of legislative supremacy is taking place.
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I think this reassertion should continue, not because I’m complacent about rights, but because I believe that in a pluralist society like Britain, what rights we have can only be legitimised by popular consent. In other words, the problem with higher law in the British context is that it privileges certain values without there being legitimate grounds for doing so. To develop this argument, I draw on the ideas of the former supreme court judge Jonathan Sumption.
In the 2019 Reith Lectures, Sumption raised the following question: in a pluralist democratic society what rights are “truly fundamental”, what rights are “so widely accepted, as to be above … political debate?” In his view, there are “probably only two categories of right” that can be seen in this light, those pertaining to individual security and to freedom of expression. These rights have to be “generally accepted” in a democratic society, otherwise neither society nor democracy would exist. To be clear, Sumption isn’t saying that these are the only rights that should be conferred on citizens – far from it. Rather, he’s saying that, in a pluralist democracy, only these rights can be reasonably considered beyond politics.
Higher law constitutions normally entrench a broader set of rights than the above two categories, however. And as Sumption further implies, the higher law model encourages judicial activism, judges interpreting codified rights in an expansive manner, resulting in their application to wider domains of life. The scope of democratic politics is therefore narrowed by higher law constitutions. They place an extensive set of rights above political debate, “beyond the reach of popular choice”, in Sumption’s words.
Of course, this is the point of higher law constitutions. But if we accept that only two categories of rights are fundamental in a pluralist democracy, then we must ask: how can an extensive range of rights be legitimately placed above political argument, or more specifically, how could this happen in the UK?
One option is to invoke God, to legitimise rights as God-given. This may have been plausible at one time, but in modern, secular Britain it’s a non-starter. Another is to cite ideology, to legitimise rights as consistent with a certain ideological stance. But this would deny value-pluralism, as it would unrealistically assume that all UK citizens are able to see the world through the same ideological lens. A further option is history. Extensive rights may be legitimate due to a collective belief that they are rooted in the origins of a political community, that they are built-in to a country’s DNA, so to speak. The US constitution functions in this way: its articulation not only marked a new beginning following the American Revolution but it also helped create the “American creed” that informs the country’s identity. We have no such foundational moment in the UK. Instead, our history has been intermittent and piecemeal, making it difficult to pinpoint a substantive set of rights that tell us who we are. Perhaps the only clear right in this regard, as Thompson suggests, is our “[ancient] right to choose freely [our] own parliament to decide upon the laws to which [we] are subject”. But this annuls the higher law position.
So, higher law rights can be legitimised through a variety of means, but none of these means are currently applicable to the UK. We have no justifiable grounds for narrowing the scope of democratic politics, for permitting what Gray calls an “empire of rights”. As such, the legislative supremacy model is more appropriate, as it would allow the rights that we do possess to have the legitimacy of popular consent. Indeed, given its lack of legitimising criteria, we should expect higher law in the UK to remain heavily contested, which is precisely what we have seen. For example, the EU right to the free movement of people restrained parliament’s ability to respond to the public’s demand for greater control over immigration, a paralysis that contributed to the Brexit revolt. This type of disconnect between the law and the people couldn’t happen with fully-fledged parliamentary sovereignty. Voters’ preferences remain decisive.
However, we shouldn’t neglect the risks involved in reviving Britain’s constitutional tradition. Precisely because of legislative supremacy’s responsiveness to shifting public demands, a return to this model entails the potential for our rights and liberties to be diminished. A legally untrammelled parliament has at times acted illiberally, for instance its authorisation of internment without trial in Northern Ireland in the 1970s. But we shouldn’t assume that a contraction of rights is an inevitable or even a likely outcome of restoring the ancien régime. As both Gray and Sumption stress, the UK has a strong liberal tradition, evident in legislation such as the 1968 Race Relations Act and the 1975 Sex Discrimination Act. We can’t know in advance whether reverting to our constitutional tradition would reduce or enhance our rights. We would have to decide this collectively through the democratic process. As the political scientist Chris Bickerton writes, under parliamentary sovereignty, “the only guarantee for the policies that we want is to win majorities for them through national elections”. But this means that there is “always the danger of losing the argument”.
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Bickerton’s point brings us to another reason for supporting a return to legislative supremacy – one that has to do with the British left. Over the last three decades, Labour has morphed into a party of the middle classes, a party of the cultural elite or “Brahmin left”, to use Thomas Piketty’s term. Concomitantly, it has been losing its working class heartlands to the Conservatives, as shown by the Brexit vote and the 2019 general election. Labour must reconnect with its traditional base if it is to stand any chance of winning a parliamentary majority. A reassertion of legislative supremacy may help it do this.
As I discussed above, Labour developed a political interest in higher law in the 1980s, viewing arrangements such as the EU as a check on the parliamentary power of the right. Given Labour’s dire performance in the polls during this period, we can see why it chose this path. But in so doing, the party turned its back on what Thompson calls its “democratic tradition”, its professed “faith in the capacity of the British people to play their part in national representative democracy”. By embracing the new constitutionalism as a mechanism for pre-empting adverse electoral outcomes, Labour effectively signalled that it did not trust ordinary voters to make the right choice.
This move may have made Labour more attractive to the cultural elites now forming its backbone – many of whom have nothing but contempt for the average person – but it contributed to the party’s alienation from its historic base. In the 1990s, scorn for ordinary people led Labour to boast that it could take its traditional supporters for granted as they had “nowhere else to go”. This attitude was further displayed when, in 2010, prime minister Gordon Brown dismissed a working class voter concerned about mass immigration as a “bigoted woman”. And it was apparent in the party’s 2019 election manifesto, which as Philip Cunliffe notes, promised to spend lavishly on heartland communities “while ignoring their demand for political influence”. The derision shown by Labour has cost the party severely, resulting in a decline that will be difficult to overcome.
Logically, given that Labour’s divergence from the people was a consequence of its pivot towards higher law, a resurgence of legislative supremacy may lead it in the opposite direction. Britain’s departure from the EU and movement back towards fully-fledged parliamentary sovereignty means that the left is less able to depend on higher law structures to influence policy. As I noted, in the post-Brexit environment, winning parliamentary majorities will be more pivotal to policy success, affording primacy to the people once more. Structurally, therefore, there is greater incentive under legislative supremacy for Labour to reach out to ordinary voters and respond to their concerns. Whether it does this is another matter, and some of the early indications aren’t encouraging. Yet at least there will be structural pressure on the party to act in this way, which may ultimately prove too significant to ignore. So, in addition to having the capacity to secure greater legitimacy for our political decisions, a revival of our constitutional tradition may help set the left on the path to renewal.
[1] William Robert Clark et al., Principles of Comparative Politics, CQ Press, California, 2013, pp. 705-10
[2] Philip Norton, The Changing Constitution, in, Bill Jones and Philip Norton, Politics UK, Routledge, London, 2014, pp. 250-71
[3] Clement Attlee, quoted in, Bill Coxall and Lynton Robins, British Politics Since the War, Palgrave MacMillan, London, 1998, p. 119