October 21, 2016
Source: Bigstock
Last week I had a letter from a fellow journalist who, like me, is dismayed by this cavalier disregard of Parliament. Writing from his present posting in Africa, he finds that this perspective has made him view the working of the British constitution with a certain skepticism. Indeed he finds it much inferior to the way things are done, and have to be done, in the United States. Though dismayed by the tone of this year’s presidential election, he concludes that they manage things better there. The American system of government works because there are real checks and balances and the constitution isn”t made up and amended at will. He argues that in the U.S. you can”t have a sudden “transformational plebiscite” like our EU referendum. Big changes like the Civil Rights Act have to be effected bit by bit: the president, both Houses of Congress, the Supreme Court, and the legislatures of the individual states will all be involved. No president could amend America’s gun laws of his own accord. But in Britain our elective dictator would have little difficulty in doing something similar, so long as he or she retains the support of his or her party in the House of Commons. Indeed the prime minister might do so by invoking the royal prerogative or by using what are known as “Henry VIII powers”; these rely on an Act of Parliament passed in 1539 that declared that a royal proclamation should have the force of law.
Our flexible constitution allows us, as my friend puts it, to “bumble along.” This has its advantages. Change can be effected quite easily. Devolution to Scotland, Wales, and Northern Ireland has introduced some elements of a written constitution, for the powers of the Scottish Parliament and the Welsh and Northern Irish Assemblies are clearly defined. The Acts setting them up are causing some difficulties in this pre-Brexit period, but it would be constitutionally, though not politically, simple to repeal the Acts of Parliament that created the devolved legislatures, as it would not, for instance, be possible for the U.S. government to abolish the legislatures of Virginia or California.
In easy times we take our unwritten constitution for granted, and are quite satisfied with its working. But the imminence of Brexit has made this an extraordinary time. Using the royal prerogative to bypass Parliament may make for strong government. But strong government is not necessarily good government. In the 17th century Charles I’s autocratic use of the royal prerogative provoked revolution and civil war. There’s no danger of that now. Nevertheless it is time for Parliament to reassert itself and challenge the government’s intention to use the royal prerogative to stifle debate in the House of Commons.
Unchallenged government is almost invariably bad government. Brexit in some form will go ahead. But the people’s elected representatives in the House of Commons should be directly involved in determining what form of Brexit we seek. It’s a matter, and should be a matter, for Parliament, not for the Crown in the person of Theresa May and her ministers using the outdated power of the royal prerogative.
