UK Parliament or Executive: which is top dog in Britain’s constitution?

Boris Johnson is telling all who are willing to listen that he has a mandate from the people to cling to his post as prime minister come what may. This gives him remarkable powers –  to ignore the long established traditions of his party and of Parliament regarding when a prime minister has run out of road and should resign.

Does he have any constitutional justification for his view? There have certainly been questions asked about whether Britain’s “sovereign” Parliament as important – or as sovereign – as we assumed. There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern and the Prime Minister have his way.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’s prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive (including those founded in the royal prerogative).  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before Miller in a piece headlined: Parliament has no right to plot a Brexit coup.

He asserted that the notion that Parliament had the role, duty and powers to curb the Executive (and that “Parliament must have its way,” as the Speaker, John Bercow, put it during the 2019 parliamntary evenements)  was a myth built up over years of the “Whig interpretation of history“.

This was a “Victorian fairy story” that suggested British history showed a process by which power was shifted from the Monarch to Parliament – as particularly represented by the Whig party. Parliament had “steadily asserted the privileges of the people and wrested prerogative after prerogative from the Crown” according to the Victorian historian Thomas Babington Macaulay, for example.

One must assume that there is additionally a neo-Whig view (espoused by Pannick) that suggests that after Macaulay’s time power shifted yet further to Parliament, especially when the franchise was extended, to such an extent that Britain became a modern democracy with the Crown’s prerogative powers severely limited. Surely it would be unconscionable that they be exercised in such a way as to undermine parliamentary democracy or Parliament’s scrutiny of the Executive?

Tombs rejects this notion of enhanced sovereignty for Parliament. Instead it is the Executive, the Government of the day, that continues to hold the ancient constitutional cards still left to the Crown and may play them as it wishes.

 The standard idea of “parliamentary sovereignty” (that Parliament can pass any legislation and it will be recognised in the courts) is a further myth, according to Tombs (and how much more of a myth must Pannick’s notion of “enhanced sovereignty” be – that Parliament in and of itself is sovereign). Tombs writes:

“This notion of parliamentary sovereignty is an elitist pre-democratic vision dating back to a time when only a few wealthy men had the vote, and long before the era of inalienable human rights. But it has now been resuscitated in an even more extreme form by Messrs Bercow [the Commons Speaker] and his acolytes.”

For Tombs, take away the Whiggish myths and parliamentary sovereignty and Parliament becomes very much a junior partner in the constitution, a handmaiden to the Government rather than the Government’s being the servant of Parliament. And this is as it should be, he believes. Parliament is not so important; the Executive is. Bercow et al are mistaken in believing that “parliament or the House of Commons alone, or even an improvised and temporary majority within it, can exercise sovereignty and govern in opposition both to the Crown and to the electorate”. The Commons does not have the power to govern; it is therefore secondary to the body that does: the Governmnt itself.

 Other voices against Parliament
The idea that in fact Parliament is a junior partner in the constitutional framework is also put in a blunter way by Michael Detmold in a UK Constitutional Law Association piece.   He sees things rather like a balloon debate. If you had the Executive, the Legislature and the Judiciary and had to ditch one, which would it be?

“Of the three traditional powers, the legislature is the least necessary, in fact the only one that is dispensable.   Executive power plus judicial power (the unwritten common law), but minus legislative power, would work quite well (in a pared-down free market economy) … [L]egislative plus judicial, minus executive power, would not work at all.  Executive power is the one indispensable power of the British sovereignty.”

The words “pared-down free-market economy” rather give the game away here. Detmold is presumably fully on board with the creation of Boris Johnson’s notion of Britain as a Singapore in the North Sea. Once the interference of the EU was removed, the next step must surely be to ensure Parliament itself is made to butt out – leaving an Executive in charge of a “Nightwatchman state”.

Joining the fray in the attack on Parliament is the popular historian (or author of popular histories) David Starkey, who denies Speaker Bercow was “standing up for democracy”. On BBC Radio 4 Today (10 September 2019 at 2hr 54min), he said Parliament may be 800 years old “but its relationship with democracy is only 100 years old” – we’ve only been a democracy fully since after the First World War when women got the vote.

“The relationship between Parliament as the legal sovereign and the nation and the electorate as the actual political sovereign has never been worked out.”

After the 1880s and the extension of the franchise there grew up conventions binding politicians to what their constituents decided, he claimed – hence the party system, manifestoes and whipping of parliamentary votes – “that’s why there is Erskine May, the rules of Parliament that give the Government precedence over everybody else in Parliament”. Speaker Bercow tore these up to give Parliament its way. “A Parliament that gets in the way of Government does not survive. Parliament only survives because they [MPs] cooperate, not waste 110 days doing nothing.” Heatedly he continued:

“Parliament is not sovereign by itself; it is handed its power not from God like an absolute monarch. The powers come up from the people … Parliament [under Bercow] is flying in the face of the people. It will not survive – I warn, it will not survive.”      

This is so close to the view of Jacob Rees Mogg that there must be something in the air. He said:

“Sovereignty comes from the people to parliament, it does not come to parliament out of a void. We should recognise who are our masters and show ourselves to be their lieges and servants, not their overlords.”

A historical perspective
Parliament, of course, does not find its origin in the will of the people, pace Starkey or Rees Mogg. It is a creature of Monarchs, albeit that they were sometimes bullied into it by their Barons or forced into calling commoners (knights and burghers) simply to tap their growing, and otherwise untaxable resources. The notion of parliamentary sovereignty is a construct that emerged to serve the Tudor monarchy in the 16th century, in particular Henry VIII in his struggle with the Pope. His politicians created the idea that parliamentary legislation was a superior form of law – even than royal proclamations – so that Parliament could pass laws on his behalf, not least by unseating the Pope as prime secular and religious authority within England. (See “A note on the Act in Restraint of Appeals ” below.)

Statute was, though, (and still is) an act of “the Crown (ie monarch) in Parliament” and was only regarded as the will of the people in the sense that the whole people were deemed to be in Parliament so all had given consent to such Acts as desired by the Monarch. So Sir Thomas Smith, writing in 1565 in his Commonwealth of England was able to assert:  “The most high and absolute power of the realm of England consisteth in the Parliament”. A statute passed by Parliament:

“is the prince’s [ie the monarch’s] and the whole realm’s deed; whereupon no man can complain but must accommodate himself to find it good and obey it. That which is done by this consent is called firm, stable and sanctum and is taken for law.”      

Implications
It remains the case that an act of Parliament is passed by “the Crown in Parliament”, needing the acceptance of the Queen. The “neo-Whig” view is that this Royal assent is supposed to be a mere formality once the two Houses of Parliament have passed the legislation. But this is a view based on the idea that Britain is a democracy rather than a quasi-democracy, that, as noted above, it would be unconscionable for the Queen not to sign legislation into law. The parliamentary battle for Brexit in 2019 brought this understanding into doubt with threats, presumed to emanate from Boris Johnson’s then adviser Dominic Cummings, to ensure the Queen’s signature be withheld from any legislation that displeases him/them.             

So, indeed, out of this Tudor fiction, the idea of parliamentary supremacy was basically pre-democratic (as Tombs suggests), serving the King and possibly a small section of the populace, not “the people”. But it works in a more modern context because we believe it works and because, indeed, courts do recognise parliamentary legislation as sovereign. Take the myth away away and what do you have? Power back in the hands of the Monarch – acting on the “advice” of the Prime Minister (another fiction, of course.)

 Representative democracy or presidentialism?
After the “Glorious Revolution” of 1689 (where curbs were certainly and non-mythically placed on monarchical power), all the talk became of “representative democracy”. No one was fooled by the idea that “the people” were all in Parliament so there needed to be justification for why only a minority of the people were making the decisions. 

Starkey is particularly scathing of such justifications (that representatives with an interest – financial – in the common weal of the nation would apprise themselves of the facts of the matters they must legislate on, debate the pros and cons and vote according to their view of the national interest).

Starkey asserts that, once Britain became democratic (ie when there was universal suffrage, not until 1928) the party system became the means by which the people controlled those representatives to keep them in line – as though they were delegates (who should at the same time be wholly supportive of the Prime Minister). Somehow he extrapolates from this the idea that the Prime Minister alone represents the will of the people.

The reality, one must say, is that the party system, with its whips and manifestos, its focus on party leaders and the patronage those leaders have once in power, looks very far from resulting in popular control over governments. Instead it is a means whereby Prime Ministers, rather than the people, seek to control, their MPs. Britain has a strange form of quasi-presidential government but without the direct democratic input that might make the Prime Minister the directly mandated servant of the people.

The concentration of power in the hands of the Prime Minister was noted at least as far back as 1963 in RHS Crossman’s introduction to Walter Bagehot’s very Victorian, largely Whiggish The English Constitution. Prime Ministers since Bagehot’s time have skillfully avoided the logic of Starkey’s people’s sovereignty that might have come about after 1928 by parlaying the scraps of monarchical prerogative powers still left them and the rules of Parliament (as well as the electoral system) into a quasi-presidential system. The PM’s power to create a government and sack its members (prerogative powers after all – unassailable by Parliament, unlike in the US system), power over the Cabinet’s agenda, his (it had only ever been “his” in 1963 when Crossman wrote) Chief Whip, plus patronage – the (again monarchical) power to appoint Knights, Dames and Peers:

“all this already before 1867 had given him near-Presidential powers. Since then his powers have been steadily increased, first by the centralisation of the party machine under his personal rule and secondly by the growth of a centralised bureaucracy … In so far as ministers feel themselves to be agents of the Premier, the British cabinet has now come to resemble the American Cabinet.” (Fontana edition 1965 pp 51-2)   

Add to this the centralisation, the media attention focused almost wholly on the candidates for the premiership among party leaders rather than on individual MPs, and the similarity with the US presidency is complete – but it is a rather dictatorial presidency, one that is not directly elected – and whose position depends as much on the internal rules of individual political parties as any democratic constitutional settlement.      

Conclusion
If we accept that the Prime Minister can balk parliamentary legislation by advising the Queen not to sign it into law (hitherto thought of as a formality) or stymie parliamentary debate and oversight of the Government by prorogation, it would seem the issue is one of an over-mighty Executive rather than Tombs’s fears of a Legislature’s coup.

And any notion of Starkey’s “people’s sovereignty” in the quasi-democracy we have would be a nonsense if the head of a Government with no majority in Parliament could hide himself from the only democratic element of Britain’s national constitution, the House of Commons, using Medieval powers.  

In insisting that Parliament is not as important as the Executive,  Tombs et al do protest too much. A single strongman/woman cannot “be” the people or be the single representative of the people. If anything, as Crossman recognised, the pendulum has swung too far in favour of the Executive.

Certainly if you dig back far enough, Parliament is the creature of the Crown, its sovereignty a Tudor construct, its precedence at least partly a myth. In practical terms, the Executive has all the cards stacked in its favour. But how, with no written constitution (and no enduring popular revolution out of which such a constitution might have emerged) does a country advance politically and democratically? By its “myths” if you like, or its understandings about the way things work.

Those who want a definitive answer to which is truly “top dog” as between Executive and Legislature will have to look at the judgment in Miller 2 for clues*. But bear in mind this: the Prime Minister is not a Monarch. He retains some powers of a Monarch, but his position is dependent on Parliament. He can be removed by Parliament by a vote of no confidence (whether under the Fixed-term Parliaments Act or by the traditional procedure) or possibly even through impeachment (a procedure that could never be applied to the Monarch, only to her wicked advisers). He can also be removed by MPs of his party ratcheting up pressure for him to go – as has happened with Johnson.

*Note: In the event the Miller 2 judgment gave more than clues. In finding that Boris Johnson’s action was justiciable and unlawful it asserted, in effect, the enhanced sovereignty of Pannick that arises out of Parliament’s power and obligation to scrutinise the Executive. Johnson’s attempted prorogation was unlawful “because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”. (Lady Hale summary pdf) The justices said:

“Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.” Parliament is truly top dog.

The full judgment in Miller2/Cherry is here.

Of possible interest
• Magna Carta: Is it such a Great Charter?
• A “sovereign Parliament hamstrung over Brexit or taking control?
• On how parliamentary sovereignty and prerogative intermesh in Miller 1 re Article 50: What if Eadie was right?
• More historical perspectives on Crown v Parliament and Miller 1: 1297 and all that

See also
• Here Henry Hill of Conservative Home asserts the right of the Queen to withhold assent to parliamentary legislation.

A note on the Act in Restraint of Appeals
Following the annulment of his marriage to Catherine of Aragon without a papal dispensation in 1533, the Act in Restraint of Appeals was passed by Parliament. This was intended to block any appeal by Catherine above the head of the King (ie to the Pope) by asserting that no appeal could be made against the King’s will expressed in parliamentary statute. This act was an assertion that England constituted a single nation with sovereignty, ultimate authority, found within that nation, not outside it. Thus the act asserts as a known fact (not a new doctrine – even though it was indeed a new and revolutionary doctrine) that

“by divers sundry old authentic histories and chronicles it is manifestly declared and expressed that this realm of England is an empire [ie an “imperium”, a self-contained sovereign nation] and so it hath been accepted in the world, governed by one supreme head and King having the dignity and royal estate of the imperial crown of the same, unto whom a body politic compact [united, in agreement] of all sorts and degrees of people divided in terms and by names of spirituality and temporality, be bounden and owe to bear next to God a natural and humble obedience”.

It was accepted doctrine that Acts of Parliament did not make new law but simply recognised or “discovered” what had been ever thus, a sort of statement of the obvious. In reality the Henrician legislation was remaking the whole concept of the King of England and his dominions, with the King and Parliament forming one sovereign entity.  

The 17th century
The current upheaval produces, quite consciously in the minds of the new defenders of Parliament, parallels with the upheavals of the 17th century – even down to attempts to sit on the Speaker’s lap to prevent prorogation. Tombs doesn’t go into the Civil War period and its aftermath, but there were various experiments in parliamentary government that did without the Monarch and, in effect, without an Executive. They didn’t end well, and in 1653 Oliver Cromwell became Lord Protector with Army officers reasserting the dual Executive/Legislature idea of sovereignty, declaring (in, perhaps, England’s first written constitution, the Instrument of Government):       

“1. The supreme legislative authority of the Commonwealth of England, Scotland, Ireland and the dominions thereunto belonging shall be and reside in one person, and the people assembled in Parliament; the style [official name] of which person shall be Lord Protector of the Commonwealth of England, Scotland and Ireland.”      

This reiterates the Tudor belief that “all the people” resided in Parliament. The words “the people assembled in Parliament” doesn’t mean “the odd bods whom we term members of parliament and who turn up to vote” but “the people” in aggregate who are deemed to be in Parliament and voting en masse.

This gives the lie to the idea so airily asserted by Rees Mogg and Starkey that there is some separate sovereignty residing in the people. Britain never had the revolution that successfully maintained that claim in any constitutional sense.

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