A dangerous British game of constitutional hardball

Back in April 2022, when Boris Johnson was still Prime Minister of the UK, he announced a plan that immediately sparked controversy: to send asylum seekers to one way flights to Rwanda without first considering 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 line with global norms and in such clear breach of Britain's obligations under humanitarian law that many political commentators believed Johnson was trying to orchestrate the failure he could later blame left-wing activists and the courts.

Two prime ministers have since resigned, but the plan has remained central to the ruling Conservative Party despite a series of legal challenges.

Last month, the UK Supreme Court rejected the offerfinding that Rwanda is not a safe country for refugees and that sending asylum seekers there would therefore be, as predicted, a breach of international and British law.

Instead of stopping the case, Prime Minister Rishi Sunak doubled down. After his government signed a treaty with Rwanda that he says will address the court's “concerns,” he imposed a state of emergency legislation stating that in reality Rwanda there is are safe for refugees and prevent the courts and immigration authorities from making the opposite decision.

His new bill – a sort of legislative shout-out – has passed an initial vote in Parliament on Tuesday eveningand now goes to the House of Lords.

Many experts believe that the bill will ultimately fail. But there is a larger story here. The surprising attempt to overturn the reality of the court's finding suggests Britain may be following the United States, France, Israel and other countries in a trend experts say threatens democratic stability: governments resorting to “constitutional rigor” to to test the outer limits of the law.

A crucial factor in any healthy democracy is restraint: what governments could do but not do. Such tolerance often goes unnoticed until it is threatened by partisan action.

But as Steven Levitsky and Daniel Ziblatt, both political scientists at Harvard, wrote in their 2018 book “How democracies die”, the rule of limitation is one of the “soft railings” that prevent democracies from being destroyed in guerilla fights to the death, as happened to some democracies in Europe and South America in the past.

So when governments start playingconstitutional tough,” a term coined by Mark Tashnet, a Harvard legal scholar, that is a warning sign of the risk of a retreat from democracy. And this is the one that is flashing in countries all over the world.

Democracy does not win in the “constitutional struggle”.

“Look at any failed democracy and you'll see the difficulties with the constitution,” Levitsky and Ziblat wrote in a 2018 guest post essay in the Times.

For example, in Venezuela in 2004, when the country's Supreme Court tried to check the powers of President Hugo Chávez, the president and his allies in Congress added a dozen seats to the court and filled them with sympathetic judges, neutralizing the court's power to check Chávez's agenda. It was not illegal, but it violated norms about the role of the courts and the way other branches of government exercise their power.

Most recently, in Hungary, Viktor Orbán used his party's majority to rewrite the country's constitution and used a host of other initiatives to fill the judiciary with loyalists. Although the moves were legal, they undermined Hungarian democracy and concentrated power in Orbán's hands.

Heavy-handed tactics have another consequence: they undermine voter confidence in political institutions and democracy. And this can cause a phenomenon known as “affective polarization,” in which 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 untrustworthy that it must be prevented from power at all costs – encouraging constitutional rigidity. And so the cycle continues and intensifies.

This undermines democratic stability, according to Julien Labar, a researcher at the University of California, Santa Barbara, who has studied affective polarization.

“It's safe to assume that it's a mutually reinforcing relationship,” he said. “Constitutional rigidity makes people sour on the other side, which creates polarization that raises the stakes again in politics, which incentivizes people to engage more in constitutional rigidity.”

In recent years, such tactics have become more common in countries that were once considered stable democracies.

In the United States, for example, the increased use of tactics such as filibusters, forced government shutdowns, and executive orders have reinforced a political culture at any cost that has left the federal government in limbo and often unable to perform routine functions such as approving nominations and bills on the budget.

In France, President Emmanuel Macron used a series of unusual legal and constitutional maneuvers to pass an unpopular pension reform earlier this year. “While all of these tactics are individually legal, their strategic and combined use sets a dangerous precedent for French democracy,” Labar said. wrote in May. “The French government's actions echo the recent drift of US partisan politics toward constitutionally hardline territory.”

British restraint, under pressure

Temperance is extremely important in British democracy. series “constitutional congresses”, non-legal self-limiting rules about how power can be exercised, govern both its political culture and much of the day-to-day functioning of its democratic system.

Restraint is especially important because the country has no written constitution and a hereditary monarch who can 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 the constitutional agreement, the monarch “picks” 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 “royal prerogative” powers, including the ability to dissolve parliament, there is a strict rule against using those powers to undermine an elected government.

Recently, some norms of restraint have gone pressure increase. Boris Johnson, who was prime minister from 2019 to 2022, tried to use hard-line tactics in his efforts to pass Brexit legislation, including asking the Queen suspend the work of the parliament in 2019 to prevent his attempts to take the country out of the European Union being blocked without an agreement on how to do so. After an emergency hearing, the Supreme Court found that the suspension was valid illegal and declared it invalid.

There were also reports that Johnson was considering asking the Queen to dissolve Parliament to retain power in 2022, and that several senior officials planned to advise her to be “unavailable” to take his call to avoid a political crisis.

Rwanda's Sunak legislation further tests these norms. It is unusual for the government and the courts to clash so directly, much less for the government to try to directly overturn a court decision in this way. Even if the legislation is ultimately struck down because it violates the independence of the judiciary or the separation of powers – as some experts claimed as it is—it will be, in its own way, an episode of brutal tactics, with each branch testing the limits of its power over the other rather than holding back.

That the legislation deals with human rights protections is another warning sign, Labar said. The protection of human rights and civil liberties is one of the criteria used to measure the health of a democracy, making this law an even more important test of democratic norms.

“You have forms of constitutional brutality that are inherently corrosive to democracy,” he said. “And I think what's happening in the UK right now is one of those cases.”