The United Kingdom: Lurching toward Illiberal Constitutionalism in 3 Episodes

Abstract

This paper assesses the UK for examples of ‘illiberal constitutionalism’. I understand illiberal constitutionalism to involve some sort of constitutional capture, whereby key constitutional principles - such as the rule of law, human rights, judicial review and separation of powers - are applied selectively or arbitrarily, or indeed, sometimes not at all. This constitutional manipulation is often justified as necessary to satisfy, or implement, ‘the will of the people’, and to ensure the strong, efficient government necessary to do this. It is in this sense that I argue in this paper that the UK is exhibiting signs of illiberal constitutionalism. I make my argument by discussing 3 episodes that illustrate the British turn toward ‘illiberal constitutionalism’ 1. The EU referendum and the campaign: ‘breaking point’. This episode illustrates how a democratic mandate, presented as demonstrating the ‘will of the people’, contended with representative democracy and legality, how parliamentary sovereignty was challenged by popular sovereignty, and by populism. The argument – and conclusion – is that the British Constitution here functioned abnormally, it was not working as usual, and the process illustrates the functioning of illiberal constitutionalism. 2. The royal prerogative and judicial review – judges as ‘enemies of the people’. This episode illustrates how judicial review, legality, access to justice, and checks and balances, have been argued as contrary to the will of the people, and as an attempt to ‘thwart Brexit’. Attempts to assert parliamentary sovereignty in the courts were challenged by opposing claims of executive sovereignty and popular mandate. The outcome of these cases might seem to suggest the UK Constitution ultimately functioned well, but there is reason to fear for the future, and for the rule of law and judicial review. 3. The erasure of Human Rights: ‘people who have no right to be protected’. This episode illustrates the impending loss of many human rights, and thus an important check on the executive, as well as on the popular will. It has many repercussions for judicial review. The wide range of rights under attack also threatens many groups of people, especially EU nationals, and contributes to a general ‘othering’ of those not considered worthy of constitutional protection.