British constitutional experts have a lot to get their teeth into in 2020. The last three years have exposed several fault lines: over parliamentary procedure, the interaction of direct and representative forms of democracy, the functioning of our political institutions and the whole messy question of whether our constitution is fit for purpose.
We can expect the newly re-elected Conservative government to instigate some constitutional reforms this year. There are signs that it might want to overhaul the courts and the system of judicial review, and possibly even tackle the Supreme Court. The Conservatives have suggested, as many governments do, reforming the upper chamber, while also throwing in a threat to move the House of Lords to York. Brexit itself brings its own set of seemingly never-ending constitutional trials, including a continuing cold war between Westminster and the devolved governments over consent for Boris Johnson’s Brexit policy. And then there are the possibilities over the horizon: the break-up of the union and, if you’re more positive, constitutional codification and fundamental reform of our democratic system.
But while myriad problems might be easy to spot, where we go next and how best to get there are more difficult matters. The Conservatives suggested setting up a ‘constitution, democracy and rights’ commission in their manifesto, but now they are in office they don’t seem clear about what specifically it will cover or when it might start its work. Separately, the government looks set to repeal the much-maligned Fixed-term Parliaments Act and restore the prime minister’s ability to ask the monarch to call an election. That ought to bring back the constitutional conventions that got rather muddled in the intoxicating days of 2019, such as when and how the Commons can hold a vote of no confidence in a government.
In such times of plenty, we can expect to see many books getting stuck into the constitution. A C Grayling’s The Good State is the latest offering. Grayling takes the reader on a swirling tour through some fundamentals of government and democracy: the first two chapters are entitled ‘What Democracy Entails’ and ‘The Purpose of Government’. Grayling is keen for his readers to travel widely and in comfort: Plato, John Locke and Alexander Hamilton are there when you need them; the English Civil War, the Declaration of Independence, the French Revolution and Prohibition are all deemed worthy of a visit or two. It’s a fairly accessible read for anyone wanting to get Grayling’s perspective on what has failed and what he thinks should be done to set it right. But he rattles through the arguments, the historical comparisons and the constitutional principles. Grayling has a lot to say and there are few chances to catch one’s breath.
The snag with the book is that Grayling takes ninety-four pages to really address head-on the problem that his first ninety-three pages have been getting at: ‘the warning sign about the health of British democracy that is Brexit’. It has been there, under the surface, throughout his early chapters, in which Grayling expresses concerns about a system that allows a narrow majority to impose its will on the wider population and argues that a government should govern for everyone, not just its own supporters. When Grayling does finally get onto the subject of Brexit, he gives his frustrations full throttle: ‘It became a trope among many politicians that the outcome of 51.89% of votes cast therefore had to be “respected”, although criminal offences were found by the Electoral Commission to have been committed by the “Leave” campaigns, which would have voided the outcome if the referendum had not been advisory only.’ The Parliamentary Code of Conduct, the ‘traditional press’, the BBC and ministerial special advisers all get some share of the blame. But two pages later and we are on to Kafka.
Grayling’s proposals for reform include changes as big as Brexit itself: proportional representation, a separation of legislature and executive, compulsory voting, more checks on the executive, a stronger code of conduct for MPs and an independent fact-checking body. His arguments against first past the post will chime with many. But except for the Liberal Democrat ministers in the coalition of 2010–15, no one in a position of power in recent times has really agreed with him. The new government has affirmed its commitment to the current voting system. When it comes to strengthening the MPs’ code of conduct and establishing independent bodies to check the quality of legislation, Grayling spends a good deal of time pondering practicalities. On other subjects, such as the separation of the legislature and executive, he focuses more on his vision of how it would work rather than how to get there.
The difficulty in all of this is how much the book is guided by Grayling’s view that a great wrong has been done to the country. He will find many sympathisers. And perhaps he will also attract support from others who are persuaded by his arguments for change, even if they don’t share his reasoning. But there is a simple test for the book: how would it read if you voted to leave the EU in 2016 or voted Conservative in 2019? Grayling’s argument seems to be that both voters and legislators need greater protection from their own bad decisions. Although the book sets itself up as an attempt to protect plurality of opinion, you have to ask how Grayling’s solutions will look for those who feel that, for once, democracy has worked for them.