Fears of populist politics gaining ground and undermining the rule of law in the UK have been increasingly voiced in recent years. Alison Young looks at recent constitutional changes to assess whether there is evidence of a genuine threat to UK democracy.
It can be hard to keep track of recent developments in the UK Constitution. When things change so quickly, it is tempting to find a narrative to shape what has been going on. Two possible narratives spring to mind. For some, recent events show that the UK is populist. For others, recent changes have helped to return the Constitution to its more orthodox form, limiting legal checks and restoring the sovereignty of Parliament.
In Unchecked Power, I argue that both narratives are feasible. This may appear to be good news. After all, it may mean that those who think the UK is populist are, at best, incorrect and, at worst, a little hasty in their assessment. However, it also suggests a more worrying conclusion. There appears to be a thin line in the UK between populism and business as usual. Even more concerning, there may be signs of the emergence of a particular form of populism that may pose a specific danger to the UK Constitution.
There may be signs of the emergence of a particular form of populism that may pose a specific danger to the UK Constitution.
What is populism?
Populism is not easy to define. It can be used to refer to a political ideology, with both right- and left-wing versions. Despite this almost chameleon-like nature, theorists tend to focus on key indications of a populist ideology. First, populism advocates popular sovereignty. Second, it distinguishes between the people and the elites. Politics is an agonistic process. The commitment to popular sovereignty means that, for populists, there can be only one winner. The will of the people should triumph over the elites – be they politicians, experts, or the courts. Third, populism tends to homogenise the will of the people. There can be only one uniform will of the people, discovered and expressed by a populist leader or party.
Populism tends to homogenise the will of the people.
Populism is also a political tactic. Populists appeal to the will of the people as a means of winning debates. They focus on rhetoric rather than argument. They may also control, use, or influence the media, ensuring that the will of the people, as defined by a populist leader or party, is communicated to the people as a clear and established fact. The will of the populist party is that of the “real” people. Other views can be rejected as elitist and therefore wrong.
If we are concerned about populism, it is because of the possibility of its collapse into authoritarianism. Populists tend to expand the powers of the executive. Populists also tend to reduce checks and balances over governmental powers, from institutions and from the people. The more the power of the executive grows, and checks and balances are reduced, the easier it can become for populism to dress authoritarianism in a veneer of democracy.
Business as usual?
There is evidence of a growth in governmental power in the post-Brexit Constitution. However, some of this has been in response to particular problems. Both the COVID-19 pandemic and Brexit required a series of measures that were enacted through regulations rather than legislation. This is nothing new.
What has perhaps fallen more under the radar has been the growing use of skeleton legislation, prompting the Delegated Reform and Regulatory Powers Committee to coin the term “hyper-skeletal”. One example of this type of legislation is the Strikes (Minimum Service Levels) Act 2023. Rather that setting out criteria to determine how to balance industrial action and the need to minimise disruption to essential services, the Act empowers Ministers to make regulations setting out minimum service levels for, inter alia, transport services, health services, fire and rescue services, and education. Is this just business as usual, or a failure to ensure effective legislative oversight over policy choices?
There are also examples where checks and balances have been modified or weakened. The Dissolution and Calling of Parliament Act 2022, (DACOPA) for example, “revives” the prerogative power to dissolve Parliament, repealing the Fixed-term Parliaments Act 2011. Westminster, once more, has a maximum as opposed to a fixed term. Again, this seems to be just a return to constitutional orthodoxy. However, it also changes the balance of power between the legislature, the executive, and the courts. Under the Fixed-term Parliaments Act, an early parliamentary general election required the consent of the House of Commons – either through two thirds of the members voting in favour of an early parliamentary general election, or through a vote of no confidence with no further vote of confidence in the following 14 days.
The revival of a prerogative power means that the Monarch dissolves Parliament. By convention, the Monarch will dissolve Parliament when advised to do so by his Ministers, save for exceptional circumstances. In practice, this grants the government a power to dissolve Parliament and determine the date of the general election, without the need for this to be approved by the Commons or reviewed by the courts.
The Act illustrates how recent events can fit a populist narrative. It gives more power to, and removes checks over, the executive. It also fits the narrative of a return to orthodoxy, re-establishing maximum as opposed to fixed-term Parliaments. It also helps illustrate a deeper problem.
The dangers of populism UK-style
DACOPA was prompted, at least in part, as a reaction to the events of 2019. The government was unable to obtain the consent of the Commons to the Withdrawal Agreement between the UK and the EU. The European Union (Withdrawal) (No 2) Act 2019 required the then Prime Minister, Boris Johnson, to act contrary to his own policies. He tried three times to seek an early general election – each failed. The general election at the end of 2019 only took place following the enactment of the Early Parliamentary General Election Act 2019.
Arguments in favour of DACOPA focused on the need for change in response to the “zombie Parliament” of 2019. But the events of 2019 can also be seen as a period in which the House of Commons took control, requiring the government to act contrary to the government’s policies. Surely this exemplifies a zombie government, not a zombie Parliament?
Therein lies the potential problem. Debates on DACOPA often deployed the tactics of populism. Reviving the prerogative power was described as giving power back to the people – dissolution triggers a general election. However, the date of any election is the choice of the government, who will at least aim to select a date that maximises their chance of re-election, even if this is not always achieved. There was also no referendum vote in favour of maximum-term Parliaments and the prerogative power of dissolution. Most of the general population may not even be aware of this constitutional change.
There was also no referendum vote in favour of maximum-term Parliaments and the prerogative power of dissolution. Most of the general population may not even be aware of this constitutional change.
Debates on the Bill also demonstrated the adoption of a particular approach to constitutionalism – what David Howarth refers to as the Whitehall as opposed to the Westminster view of Parliament. The government is regarded as the most democratic institution of the Constitution, given that its powers are checked by Parliament, its own party and the people. It needs the support of Parliament to govern, which should be given whenever the government continues to enjoy the confidence of Parliament.
If the government is also the sole voice of the will of the people, there is little, if any, justification for limiting its powers. The more any government uses populist tactics to undermine checks and balances and to silence criticism, the easier it can be for that government, of whatever political persuasion, to retain power. In such a situation, it is hard to see how government is checked by Parliament and the people. The only check may stem from its own political party. However, when a government can use populist tactics to win votes, these too may be few and far between.
This is not to argue that the UK has succumbed to a dangerous form of populism. Rather, it is to point out the importance of checks and balances to maintain democracy. Nor is this to argue that the sole purpose of checks and balances is to restrict the government. Legal and political checks may also ensure the government performs its job more efficiently. More fundamentally, they may ensure governments perform their job in a manner that upholds democracy and the rule of law, as well as respecting that those in power should act according to the standards of good constitutional government.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science.
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