What problems are there in the UK's Constitution? What the experts say

The Institute for Government and the Bennet Institute for Public Policy have launched an investigation series into the Constitution as it has been put under intense pressure by Brexit and the pandemic.  

Its first paper was published earlier this month and focuses on the relationships at the heart of government with devolution and the performance of current political leaders being key to their considerations. 

Here’s our breakdown of the first paper. 

Problems with Westminster 

Politicians don’t need to obey the rules 

Simply put, there are very few mechanisms in place to hold politicians accountable for their behaviour. The “conventions and norms” that are in place work so that if a politician makes a serious error they are expected to resign. However, these amount to little more than a social expectation. This leaves a heavy burden on British politicians being “good chaps”. However, this is often not the case... 

The report further states that political scandals have exposed the weaknesses in systems for maintaining standards in public life. Following the “cash for questions” and expenses scandals, successive high-profile crises have put the “motives of elected officials in doubt”.

This is further complicated by the Prime Minister overseeing ministerial appointments and enforcing the ministerial code. This means that “ministers and MPs do not necessarily face repercussions, even if they are found via independent processes to have broken the rules”. 

Priti Patel was found to have broken the ministerial code for bullying but it was the civil servant who flagged her behaviour who resigned instead

The Government has too much power over Parliament 

Due to the first-past-the-post voting system, the Government is almost always comprised of one political party and major decisions can be made by simple majority votes in Parliament.

This is reinforced by the whipping system which discourages diversity of opinion within parties. This means that parties with a majority, especially a large one like Boris Johnson’s current government, can effect their agenda with little scrutiny.  

One of the most concerning developments has been the increasing reliance on “skeleton bills” which delegate power on individual ministers in government to make unilateral decisions by using “secondary legislation, rather than acts of parliament, to introduce policy change – as this greatly limits parliamentary scrutiny".

Issues with Devolution 

Devolved administrations lack protection 

The fundamental principle of the UK Constitution is Parliamentary Sovereignty. This sets out that the Westminster Parliament can make or unmake any law that they wish and that no sitting parliament can be limited by the laws of its predecessors. This means that the laws that created the devolved administrations can be repealed at any time.  

While the dissolution of Scottish Parliament is highly unlikely, there is still a cloud of uncertainty that hangs over devolution.

The report says: “The vulnerability of devolution to the whim of Westminster has created a sense of insecurity in the devolved nations that they could be overridden even in devolved areas, and risks precipitating the break-up of the UK itself.” 

A notable example of Westminster ignoring the will of the Scottish Parliament was the triggering of the UK’s withdrawal from the European Union. Westminster justified this through the “exceptional circumstances" of Brexit. However, it is unclear what else may come under this rationale.  

Co-operation between the four governments relies on good relations 

When devolution was first introduced, the governments of the four nations were all members of the same party and any disagreements could be resolved behind the scenes. This is no longer the case and relevant parties have considerably less motivation to compromise. This has been particularly evident during Brexit.

For example, all three devolved administrations refused to consent to Theresa May’s withdrawal agreement when it was passed in the House of Commons.  

The report says: “The problem is exacerbated by the fact that the UK government can increasingly be said to primarily represent England. This is due to the UK’s majoritarian voting system and the divergent political trends in each part of the UK.” 

Douglas Ross was described as a 'lightweight' by fellow Tory Jacob Rees-Mogg

Fewer Opportunities for participation in decision-making 

Since the UK’s first referendum in 1973, there have been 13 different polls with 3 of them being UK wide. However, the framework highlights the confusion over the role they should play in governmental decision making.  

The report says: “The use of referendums has at times come into tension with the UK’s system of representative democracy. There are no clear rules around when they should be held, on what terms and how the results should be interpreted or acted upon.”  

The report says that further referendums are “inevitable” and “there needs to be greater consideration of how their use should be integrated into the UK’s system of democracy”.