Lawful Revolution

Can the Rule of Law be entrenched in Britain's constitution if the political establishment opposes it?

King Charles I and Prince Rupert before the Battle of Naseby (source)

In the final chapter of his 2010 book, The Rule of Law, former senior Law Lord Tom Bingham explored some of the conflicts between that concept and the doctrine of parliamentary sovereignty, conluding that “our constitutional settlement has become unbalanced [which may give rise] to wholly undesirable conflict between Parliament and the judges”. He ended the book with a gentle plea for the political establishment in Britain to address the problem:

One may hope that the sovereignty of Parliament and its relationship with the rule of law may be seen as a matter worthy of consideration if, as I suggest, there are some rules which no government should be free to violate without legal restraint. To substitute the sovereignty of a codified and entrenched Constitution for the sovereignty of Parliament is, however, a major constitutional change. It is one which should be made only if the British people, properly informed, choose to make it.

His words reflected a widespread concern that Britain’s current constitution offers significant scope for misgovernment. But in the years since the book was published, there’s been no serious attempt on the part of politicians to remedy the situation, the rift between the government and the judiciary has grown wider and, for many people, concern has turned to alarm.

In my essay, A Trust of Sovereignty, I argued that ultimate sovereignty rests with the people: that Parliament only holds it in trust and that “everything else being equal, an ad hoc Parliament elected today to legislate solely on laws of sovereignty will undoubtedly be a truer expression of the public’s will, in that specific matter, than a general purpose Parliament elected yesterday”. Therefore, I suggested, in the event of a conflict between the courts and the government it would be legitimate for the courts to ask the monarch to convene a Constitutional Parliament to settle the matter.

I’m conscious, however, that the taboo against judicial interference in political matters is so strong (in the legal world, at least) that the courts would probably only take that step in extremis. For those of us who worry about misgovernment the fact that the courts could eventually bring a rogue government to heel is small comfort; ‘a great deal of ruin in a nation’¹ can happen without the kind of egregious misrule that I think the courts would need to see before they venture into the political sphere. So we need to find some way of triggering major constitutional change that doesn’t oblige the courts to step outside their comfort zone.

Guardian of the constitution

In previous posts I’ve referred to the Supreme Court as the guardian of the constitution but, from a legal perspective, the ultimate guardian is of course the monarch. It is the monarch who appoints ministers, the monarch who convenes and dissolves Parliament, the monarch who ratifies Acts of Parliament. And the monarch – and only the monarch – has the power to convene a Constitutional Parliament.

There is of course a well-established convention that the monarch does not get involved in politics but, from a purely legal perspective, this doesn’t present an obstacle. It’s true that, if the King started trying to rule by royal decree in day-to-day affairs, the courts would no doubt find some rationale for finding that he had exceeded his authority; but if he chose to convene a Constitutional Parliament, so that representatives of the electorate could (if they think it appropriate) entrench a set of legal principles that would be binding on the government and the everyday Parliament, I cannot imagine any circumstances under which the courts would judge it to be outside his authority. The foundations of that convention – that the monarch does not get involved in politics – do not lie in the sphere of law.

The convention rests, rather, on the twin pillars of political pragmatism and constitutional integrity: on one side, the fact that there might be adverse political consequences if it were violated; on the other side, the fact that societal stability is enhanced by the presence of an overseer who is above the fray. Neither of these provide a reason why the King should not convene a Constitutional Parliament to sanctify the Rule of Law. Today’s politicians might be unhappy about it but I can’t imagine it would in any way damage his standing with the general public. And being above the fray is not the same as standing on the sidelines. On the contrary, the power to convene a Constitutional Parliament is the very essence of his role; a referee must take no part in the game but he mustn’t hesitate to blow the whistle when the state of play demands it.

Having said that, I would not expect King Charles to take such a step lightly. I imagine he would feel the need for some kind of sign that senior figures in the establishment support it. It would not be enough to informally convince ‘the man within the king’ that such a step was necessary; the need for it would have to be brought to his attention formally in a way that gave him confidence that others – people better placed than himself to understand the implications of it – thought that it might be proper for him to do it.

The King’s gatekeeper

One way that this might come about is if:

• A petitioner (whether an individual or a group) asks the Lord Chamberlain (or other appropriate public official) to present a petition to the King, arguing that fundamental constitutional reforms are needed that can only be introduced by a Constitutional Parliament;

• either, the Lord Chamberlain declines to present the petition, and the petitioner seeks judicial review of the decision, asking the courts to order him to do so;

• or, the Lord Chamberlain publicly announces his intention to present the petition, allowing other interested parties to apply for judicial review, asking the courts to order him to refrain from doing so.

I think it unlikely that the courts would regard it as a violation of their political neutrality for them to consider such an application. Which raises the question of what factors they would expect the Lord Chamberlain to consider in making his decision.

A work in progress

As I said at the end of A Trust of Sovereignty:

Britain’s constitution is a work in progress and its further development still depends on its boundaries being stretched as the need arises – but stretching its boundaries in times of crisis is surely as much a part of Britain’s constitutional tradition as parliamentary supremacy itself.

It seems to me that, for the courts to recognise that we are in a time of crisis which might justify stretching those boundaries, they will need to be fully satisfied that:

1. The system as it currently operates is irredeemably flawed and works against the public interest in important ways;

2. There are possible reforms, that would be acceptable to the general public, which could reasonably be expected to fix the flaws;

3. All reasonable avenues to get those reforms introduced through normal political processes have been tried and have failed;

4. There is a pathway to reform which will not itself be a cause of unacceptable turmoil; and

5. It would be constitutionally legitimate for that path to be taken.

These therefore are the factors that (in my opinion) the courts would expect the King’s gatekeeper to consider.

Conclusion

Ultimately, of course, the decision will lie in the hands of the King. He, and he alone, has the power to convene a Constitutional Parliament. We can’t know what he would decide but, through his books and the speeches he gave, we can know something of what he thought when he was Prince of Wales. For myself, I’m hopeful that he would recognise the need for fundamental constitutional reform at this stage in the evolution of the British state, and that he would welcome the opportunity to establish his own role as something more than purely ceremonial.

My purpose in this essay has been to show that there might be a constitutionally legitimate path towards establishing the Rule of Law as an overarching principle of the British constitution — even if our current political establishment is determined to oppose it. In future posts I’ll be looking in more detail at the arguments would-be reformers will need to make.

1. When he said ‘there’s a great deal of ruin in a nation’ Adam Smith was responding to someone who was treating a defeat as a disaster, but it seems an appropriate phrase here.