Sam Bidwell is a Parliamentary Researcher, and Director of the Centre for Commonwealth Affairs.
Speaking in the debate on the Government’s Rwanda Bill, Labour’s Shadow Immigration Minister, Stephen Kinnock, took to his feet to deliver a scathing rebuke of the Government’s plans. In doing so, he attacked the Government for supposedly violating the “separation of powers”, which he described as “a fundamental and immutable element of what makes us proud to be British.”
In a matter of minutes, the conservative commentariat seized upon Kinnock’s remarks, accusing him of profound constitutional illiteracy. After all, Britain does not have a separation of powers doctrine; our executive sits within our legislature, and Parliament has the power to overrule the judiciary. As ever, correcting opposition MPs proves to be nothing if not satisfying.
But was Kinnock actually wrong? Constitutions are best judged by practice rather than theory and, on that front, the Labour MP certainly has a case to argue.
Writing in 1915, A.V. Dicey notes a customary separation of powers in the British constitution, though he describes it as “the offspring of a double misconception.” In the House of Lords’ 1995 judgment on the Fire Brigades Union case, Lord Mustill spoke of a “peculiarly UK conception of the separation of powers”, in which “Parliament, the executive, and the courts each have their distinct and largely exclusive domain.”
In recent years, a strident judiciary has further entrenched its own position as a branch of government with discrete and immutable responsibilities. In the Supreme Court’s infamous 2019 ruling on Privacy International, Lord Carnwath went as far as to state that “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law.”
The expansion of discrete judicial power has been bolstered by a number of reforms explicitly designed to engender clearer separation between the three branches of Government described by Mustill. In 2005, the office of Lord Chancellor was reformed, removing the ability of Lord Chancellors to act as both a government minister and a judge. In 2009, the judicial function of the House of Lords was abolished in favour of a free-standing Supreme Court.
In practice, the separation of powers is now a feature of the British constitution, even if it is imperfectly applied. Over decades, this principle has been wordlessly crystallised by a series of judicial rulings, academic texts, and administrative reforms. In turn, decision-makers now treat this idea as sacrosanct.
Particularly in our flexible, uncodified system, it is important to understand the state as it really functions, instead of how we might prefer it to operate. The rules, principles, and paradigms which actually shape administrative decision-making are our de facto constitution, even if never formally acknowledged by Parliament. Instead of insisting that Kinnock was wrong on a point of fact, conservatives should recognise that his views reflect an alternative, insurgent view of the British constitution which is now orthodoxy on the Labour benches.
This is the Settlement of 1997, a revolutionary alternative to the old order which has its foundations in the liberal constitutional traditions of the continent. It holds Parliamentary sovereignty in equal standing with the separation of powers and the rule of law, the latter of which is broadly defined along the lines set out by Tom Bingham. This is also the source of our existing human rights regime, which was effectively born in 1998 when the rights outlined by the European Convention were integrated into our domestic law.
Crucially, this school of thought is deeply sceptical of democracy. It abhors popular sovereignty and is instinctively uneasy about unrestrained ministerial power. Adherents of this view prefer to govern through representative stakeholders while constraining political actors, a fact which explains the remarkable growth of the regulatory state and the rapid expansion of judicial review since the New Labour years. Few can now remember how powerful the ministers of the Thatcher years were. Many of the powers that they once exercised are routinely stunted by judicial intervention, if they haven’t already been siphoned off to faceless regulators.
Of course, the principles which previously animated the constitution were never formally repealed. Parliament remains sovereign, and the executive retains some of the most extensive prerogative powers in the developed world. Under this orthodox view, all principles, customs, and conventions are conditional upon the assent of Parliament, which is itself only accountable to the King and to the people. There are no human rights here, only ancient personal liberties protected under the common law.
To some extent, the political establishment’s discomfort over Brexit came as a result of being reminded of this dormant regime. The direct popular sovereignty of the referendum, the absolute legislative sovereignty of Parliament, the extensive prerogative powers of the executive – these ideas are antithetical to the new constitution, but inherent to the old. The heated debate about Boris Johnson’s attempt to prorogue Parliament is perhaps the ultimate expression of this, a brief moment of open warfare between constitutional orthodoxy and Blairite legalism.
Yet in the day-to-day operation of the British state, it is these new ideas which hold the most sway. Instead of jeering at Labour MPs who wax lyrical about liberal democratic principles, conservatives must be willing to articulate a defence of our ancient constitution on its own terms. We must be able to speak fluently about the benefits of an executive empowered to give effect to the will of the people, and to extol the strengths of a system in which Parliament is unconstrained by ever-shifting judicial whims.
Fail to address the challenge head-on, and conservatives will find that our constitution continues to evolve away from its roots, each new Labour government bringing in new measures to ‘modernise’ our ‘anachronistic’ system. Even the idea of Parliament’s absolute sovereignty is no longer secure; speaking in the 2005 case of R (Jackson) v Attorney General (albeit in obiter dicta), Lord Steyn argued that “the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”. In certain legal circles, this view is now the accepted one.
Perhaps the problem is just that we so rarely think about our constitution, a habit which will need to change quickly if Conservatives want to be able to govern effectively. At present, the Party is a little like a Test batsman unwittingly stepping up to the crease in a T20 match – it doesn’t understand the new rules, and is bound to be out before long.
Sam Bidwell is a Parliamentary Researcher, and Director of the Centre for Commonwealth Affairs.
Speaking in the debate on the Government’s Rwanda Bill, Labour’s Shadow Immigration Minister, Stephen Kinnock, took to his feet to deliver a scathing rebuke of the Government’s plans. In doing so, he attacked the Government for supposedly violating the “separation of powers”, which he described as “a fundamental and immutable element of what makes us proud to be British.”
In a matter of minutes, the conservative commentariat seized upon Kinnock’s remarks, accusing him of profound constitutional illiteracy. After all, Britain does not have a separation of powers doctrine; our executive sits within our legislature, and Parliament has the power to overrule the judiciary. As ever, correcting opposition MPs proves to be nothing if not satisfying.
But was Kinnock actually wrong? Constitutions are best judged by practice rather than theory and, on that front, the Labour MP certainly has a case to argue.
Writing in 1915, A.V. Dicey notes a customary separation of powers in the British constitution, though he describes it as “the offspring of a double misconception.” In the House of Lords’ 1995 judgment on the Fire Brigades Union case, Lord Mustill spoke of a “peculiarly UK conception of the separation of powers”, in which “Parliament, the executive, and the courts each have their distinct and largely exclusive domain.”
In recent years, a strident judiciary has further entrenched its own position as a branch of government with discrete and immutable responsibilities. In the Supreme Court’s infamous 2019 ruling on Privacy International, Lord Carnwath went as far as to state that “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law.”
The expansion of discrete judicial power has been bolstered by a number of reforms explicitly designed to engender clearer separation between the three branches of Government described by Mustill. In 2005, the office of Lord Chancellor was reformed, removing the ability of Lord Chancellors to act as both a government minister and a judge. In 2009, the judicial function of the House of Lords was abolished in favour of a free-standing Supreme Court.
In practice, the separation of powers is now a feature of the British constitution, even if it is imperfectly applied. Over decades, this principle has been wordlessly crystallised by a series of judicial rulings, academic texts, and administrative reforms. In turn, decision-makers now treat this idea as sacrosanct.
Particularly in our flexible, uncodified system, it is important to understand the state as it really functions, instead of how we might prefer it to operate. The rules, principles, and paradigms which actually shape administrative decision-making are our de facto constitution, even if never formally acknowledged by Parliament. Instead of insisting that Kinnock was wrong on a point of fact, conservatives should recognise that his views reflect an alternative, insurgent view of the British constitution which is now orthodoxy on the Labour benches.
This is the Settlement of 1997, a revolutionary alternative to the old order which has its foundations in the liberal constitutional traditions of the continent. It holds Parliamentary sovereignty in equal standing with the separation of powers and the rule of law, the latter of which is broadly defined along the lines set out by Tom Bingham. This is also the source of our existing human rights regime, which was effectively born in 1998 when the rights outlined by the European Convention were integrated into our domestic law.
Crucially, this school of thought is deeply sceptical of democracy. It abhors popular sovereignty and is instinctively uneasy about unrestrained ministerial power. Adherents of this view prefer to govern through representative stakeholders while constraining political actors, a fact which explains the remarkable growth of the regulatory state and the rapid expansion of judicial review since the New Labour years. Few can now remember how powerful the ministers of the Thatcher years were. Many of the powers that they once exercised are routinely stunted by judicial intervention, if they haven’t already been siphoned off to faceless regulators.
Of course, the principles which previously animated the constitution were never formally repealed. Parliament remains sovereign, and the executive retains some of the most extensive prerogative powers in the developed world. Under this orthodox view, all principles, customs, and conventions are conditional upon the assent of Parliament, which is itself only accountable to the King and to the people. There are no human rights here, only ancient personal liberties protected under the common law.
To some extent, the political establishment’s discomfort over Brexit came as a result of being reminded of this dormant regime. The direct popular sovereignty of the referendum, the absolute legislative sovereignty of Parliament, the extensive prerogative powers of the executive – these ideas are antithetical to the new constitution, but inherent to the old. The heated debate about Boris Johnson’s attempt to prorogue Parliament is perhaps the ultimate expression of this, a brief moment of open warfare between constitutional orthodoxy and Blairite legalism.
Yet in the day-to-day operation of the British state, it is these new ideas which hold the most sway. Instead of jeering at Labour MPs who wax lyrical about liberal democratic principles, conservatives must be willing to articulate a defence of our ancient constitution on its own terms. We must be able to speak fluently about the benefits of an executive empowered to give effect to the will of the people, and to extol the strengths of a system in which Parliament is unconstrained by ever-shifting judicial whims.
Fail to address the challenge head-on, and conservatives will find that our constitution continues to evolve away from its roots, each new Labour government bringing in new measures to ‘modernise’ our ‘anachronistic’ system. Even the idea of Parliament’s absolute sovereignty is no longer secure; speaking in the 2005 case of R (Jackson) v Attorney General (albeit in obiter dicta), Lord Steyn argued that “the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”. In certain legal circles, this view is now the accepted one.
Perhaps the problem is just that we so rarely think about our constitution, a habit which will need to change quickly if Conservatives want to be able to govern effectively. At present, the Party is a little like a Test batsman unwittingly stepping up to the crease in a T20 match – it doesn’t understand the new rules, and is bound to be out before long.