The idea of constitutional hardball was introduced to the world by Mark Tushnet. The sport is played when political actors decide the stakes are so high that any lawful action is justified, no matter how constitutionally problematic: hardball stays within the confines of the law, but runs against the spirit, and sometimes the conventions, of the constitution.
The UK is feeling the impact of hardball constitutionalism and, as a constitution reliant on understandings and non-legal rules, it is ill-equipped to withstand the bumps. The Prime Minister’s request for prorogation would normally be unremarkable: a new parliamentary session, with the Queen’s speech setting out the plans of her new government, is overdue. But the move falls within the realm of hardball because it is almost universally recognised as a device to prevent Parliament interfering in the Brexit process. The Executive plans to shut Parliament to stop Parliament making decisions about the policy direction of the state. The number of days Parliament will be suspended is modest, but its motivation is a constitutional outrage. It turns the UK’s constitution on its head: our unelected Executive’s legitimacy depends on the support of the elected Parliament. Two further hardball moves are threatened. It is mooted that if Parliament were to pass a bill preventing a no-deal Brexit, the Prime Minister would tell the Queen to refuse assent to the legislation. And, gossips whisper, if there were a vote of no confidence and another MP commanded the support of the Commons, the Prime Minister might affect not to have noticed, and not advise the Queen to invite this person to form a new Government.
These are instances of hardball because though constitutionally obnoxious they might be legally sound. There are a number of cases in the courts at present on the legality of prorogation, but it would be a mistake to invest too much hope in their success. Asking the judges to review the date of a Queen’s speech set by a new Government, especially after the Queen has agreed to the prorogation, is a tough request. It is possible that the courts will intervene to protect Parliament from the Executive, but the case will be a difficult one to win.
If we want to find protection against these constitutional devices we might need to look elsewhere. As I argued, long before this became a live issue, the Queen may have a role to play. In normal times, the convention governing the Queen’s legal powers is clear: the Queen is bound to accept the advice of Ministers on practically all matters relating to the prerogative. But this is because those Ministers are supported by, and accountable to, Parliament, and, by acting on their advice, the Queen supports and make possible democratic government. When Ministers give advice that aims to undermine Parliament, to stop it functioning, the convention becomes unclear, and requires interpretation; the reason animating it no longer applies. Now, advice of the Prime Minister becomes just that – advice – which the Queen must weigh. If it is clear that this advice runs contrary to Parliament’s wishes – because Parliament has approved the bill the Prime Minister wants to see refused, or has passed a motion indicating it wants someone else to act as Prime Minister – the Queen should ignore the advice. The Prime Minister, in contrast to a president, does not have an independent democratic mandate that can justify him exercising powers against the legislature. The Queen’s primary constitutional duty is not to support her Prime Minister, but to defend the democratic processes of the state.
That this position seems to some remarkable is due to our recent constitutional history. A long series of majority governments has meant that the Queen could reasonably assume that the Prime Minister always spoke for Parliament. But if coalition and minority governments are to become commonplace in UK politics, this assumption can no longer be defended. The Queen, as Head of State, will be faced with difficult questions. A possible way for her to mitigate this difficulty would be, as Lord Sumption has suggested, to make use of the Judicial Committee of the Privy Council to review these requests if she is unsure what convention requires.
The dangers of constitutional hardball are many, but one stands out. A core task of the constitution is to bring communities together behind decisions of states. They may not agree with the decision, they may protest and want to change it, but, if the constitution is working well, they accept it as the legitimate decision of the community. Constitutional hardball risks damaging that process. The forms of hardball mooted in the UK seek to exclude our elected institution from engagement in the most important political decision of the day: but why then should people accept the actions of the Government? Brexit is practically certain to happen, and practically certain to happen on October 31st. The Brexiteers have won. Up to now, their victory has been realised through our constitutional structures and in accord with the spirit of the constitution. It would be a shame if that were abandoned in these final weeks.