Britain’s dangerous game of constitutional hardball
In April 2022, when Boris Johnson was still Prime Minister of Britain, he announced a plan that was immediately controversial: sending asylum seekers on single flights to Rwanda without first hearing their claims for refugee protection in the United Kingdom.
The proposal, which meant that even those granted asylum would remain in the small African country, was so out of step with global norms, and seemed so clearly at odds with Britain’s humanitarian obligations right, that many political commentators thought Johnson was attempting a failure that he could later blame on left-wing activists and the courts.
Two prime ministers have since resigned, but the plan remains central to the ruling Conservative Party despite a series of legal challenges.
Last month, the British Supreme Court rejected the proposalconcluding that Rwanda was not a safe country for refugees, and that sending asylum seekers there, as predicted, would be contrary to international and British law.
Instead of dropping the matter, Prime Minister Rishi Sunak doubled down on his position. After his government signed a treaty with Rwanda that he said would address the court’s “concerns,” he introduced emergency legislation stating that Rwanda would in fact is is safe for refugees, and it prohibits courts and immigration officials from ruling otherwise.
His new bill – a kind of legislative cry of ‘nuh-UHHH’ – was voted on for the first time in Parliament on Tuesday evening and now goes to the House of Lords for consideration.
Many experts are convinced that the bill will ultimately fail. But there’s a broader story here. The strange, reality-altering attempt to overrule the court’s findings suggests that Britain could follow the United States, France, Israel and other countries in a trend that experts say threatens democratic stability: governments that are “constitutionally playing hardball” to test the outer limits of the law.
A crucial factor in any healthy democracy is restraint: which governments could be do, but don’t do. This kind of patience often goes unnoticed until it is threatened by partisan political action.
But as Steven Levitsky and Daniel Ziblatt, both Harvard political scientists, wrote in their 2018 book “How Democracies Die,” the norm of restraint is one of the “soft guardrails” that prevents democracies from being destroyed in partisan fights to the death . has happened in the past to some democracies in Europe and South America.
So when governments start playing “constitutional hardball”, a term coined by Mark Tushnet, a Harvard law scholar, that is a warning sign of the risk of democratic backsliding. And it’s one that’s popping up in countries around the world.
Democracy does not win in ‘constitutional hardball’
“Look at a failing democracy and you will find constitutional hardball,” Levitsky and Ziblatt wrote in a 2018 guest essay in the Times.
In Venezuela, for example, when the country’s Supreme Court tried to check the authority of President Hugo Chávez in 2004, the president and his allies in Congress added a dozen seats to the court and packed it with friendly judges, expanding the power of the court as a court was neutralized. Check Chávez’s agenda. That was not illegal, but it did violate norms about the role of the courts and how the other branches of the state should exercise their power.
More recently, in HungaryViktor Orbán used his party’s majority to rewrite the country’s constitution, and used a slew of other initiatives to fill the judiciary with loyalists. Although the steps were legal, they undermined Hungary’s democracy and concentrated power in Orbán’s hands.
Hardball tactics have another consequence: they damage voters’ trust in political institutions and democracy. And that can cause a phenomenon known as “affective polarization,” where people develop positive or negative feelings about others depending on which party they support. When affective polarization becomes severe, it can lead to the belief that the political opposition is so dangerous and unreliable that it must be kept out of power at all costs, encouraging constitutional hardball. And so the cycle continues and becomes more intense.
That undermines democratic stability, says Julien Labarre, a researcher at the University of California, Santa Barbara, who has studied affective polarization.
“It’s pretty safe to assume this is a mutually reinforcing relationship,” he said. “Constitutional hardball sours on people on the other side, which creates polarization, which again raises the stakes of politics, which encourages people to engage in more constitutional hardball.”
In recent years, such tactics have become increasingly common in countries once considered stable democracies.
In the United States, for example, the increased use of tactics like filibusters, forced government shutdowns, and executive orders has reinforced a political culture that, at all costs, has left the federal government deadlocked and often unable to ever perform routine tasks. such as approving government contracts. nominations and the passing of budget laws.
In France, President Emmanuel Macron used a series of unusual legal and constitutional maneuvers to push through an unpopular pension reform earlier this year. “While these tactics are all individually legal, their strategic and concerted use sets a dangerous precedent for French democracy,” Labarre said. wrote in May. “The French government’s actions reflect the recent shift of American party politics into constitutional hardball territory.”
British restraint under pressure
Restraint is unusually central to British democracy. A series of “constitutional treaties‘ Non-legal rules of self-control over how power can be exercised determine both political culture and much of the day-to-day functioning of the democratic system.
Restraint is especially important because the country has no written constitution and does have a hereditary monarch who could technically wield far more political power than the country’s norms allow. For example, the king nominally has the power to appoint the prime minister, but according to constitutional convention the monarch ‘chooses’ the person who can command a majority in parliament – that is, the leader of the party that won the last election.
And while the king is the head of state and has the powers of “royal prerogative,” including the ability to dissolve parliament, there is a strong norm against using those powers to undermine the elected government.
Recently, some restraint standards have come under increasing pressure. Boris Johnson, who served as Prime Minister from 2019 to 2022, tried to use heavy-handed tactics in his efforts to pass Brexit legislation, including asking the Queen to suspend Parliament in 2019 to prevent his attempts blocking the country’s exit from Brexit. the European Union without a negotiated agreement on how this should be done. After an emergency hearing, the Supreme Court ruled that it was a suspension unlawful and declared it null and void.
There were too reports that Johnson was considering asking the Queen to dissolve Parliament in a bid to stay in power in 2022, and that several senior officials planned to advise her to be ‘out of reach’ to answer his call for a political prevent crisis.
Sunak’s Rwanda legislation further challenges these standards. It is unusual for the government and the courts to clash so directly, and even more so for the government to attempt to directly overrule a court decision in this way. Even if the legislation is ultimately abolished because it is judged to violate the independence of the judiciary or the separation of powers – as some experts have argued Indeed it is – that would still represent in its own way an episode of hardball tactics, each branch testing the limits of its authority over the others, rather than showing restraint.
That the legislation concerns the protection of human rights is another warning sign, Labarre said. Protection of human rights and civil liberties is one of the criteria used to measure the health of a democracy, making this legislation an even more important test of democratic standards.
“You have forms of constitutional hardball that are inherently harmful to democracy,” he said. “And I think what’s happening in Britain now is one of those cases.”