Populism and the UK Constitution

Speaker: Professor Alison Young (University of Cambridge)
Chair: The Rt. Hon. Lord Justice Sales (Court of Appeal Judge)
Series: Current Legal Problems 2017-18

About the lecture:

Referendums are a relative newcomer to the UK constitution. As such they do not appear to ‘fit’ the UK’s traditional conceptions of representative democracy and parliamentary sovereignty. If we see referendums as the expression of direct democracy, the ‘will of the people’, then should we not regard the outcome of a referendum as more important than legislation? Yet, if this is the case, does this mean that we should move from a system of parliamentary sovereignty? Should we be able to entrench principles if they have the backing of the people expressed through a referendum? The use of referendums also raises more fundamental issues with regard to the UK constitution. Does their use indicate a rise of populism in the UK, and, if so, should we be concerned? This lecture will argue that whilst the UK constitution may be less prone to some of the dangers of populism, it is nevertheless potentially more likely to be damaged by populism if we fail to fully understand both populism and the UK constitution.

It is easy to dismiss populism either as a temporary phenomenon, which contains the seeds of its own destruction, or as a necessary corrective to liberal democracies. Populism can provide a means of ensuring that groups who are under-represented can gain political power, or of correcting imbalances which arise when the protection of rights of minorities strays too greatly from the democratic will of the people. If populism goes too far, placing too much power in one group in society, other populist movements may arise, giving rise to a constant shift in power, such that populist movements fall short of collapsing into autocracies. The UK constitution, with its focus on parliamentary sovereignty as opposed to a constitutional protection of rights, is more able to facilitate shifts in power and in values. As such, there is arguably less of a need for populist uprisings in a system which is more capable of responding to shifts in values and where there is no complete entrenchment of a particular conception of liberal values. In addition, if populism does arise, it should be easily replaced with other populist movements, formed by a different set of previously unrepresented interests.

However, to view populism and the UK constitution in this manner fails to recognise the real danger of populism in the UK constitution. Populism poses a more fundamental problem for liberal democracies not only because of the danger of populist movements obtaining governmental power, but also, and more fundamentally, through the way in which populism homogenises the public interest and undermines deliberative democracy. This can be a particular problem in the UK constitution given its preference for pragmatic resolutions, flexibility and piecemeal modification, which can occasionally undervalue the normative principles which underpin both liberal democracies more generally and the UK constitution more specifically. If we are to shore up the UK constitution from the potential dangers of populism, we need to revisit the relative roles of the institutions of the constitution, looking in particular at how the legislature and the courts can work together to provide an effective check on the executive, both through facilitating deliberative democracy and through protecting long-standing values of the UK constitution.

Themes and outcomes:

• UK constitutional law
• referendums
• populism
• constitutional theory
• role of the judiciary in a representative democracy

At the end of the lecture, you should have a better understanding of the subtle mechanisms of the UK constitution, as well as a more detailed knowledge and understanding of what we mean by populism and when this poses a problem for liberal democracies. You should also have the ability to think more deeply about the role of the judiciary in a representative democracy without a fully codified, entrenched constitution.

About the speaker:

Alison Young is the Sir David Williams Professor of Public Law at the University of Cambridge, having previously been a Lecturer in Law and a Professor of Public Law at the University of Oxford. She has published widely in public law and public law theory, focusing in particular on constitutional theory, as well as comparing different mechanisms through which to protect human rights. She is the author of Parliamentary Sovereignty and the Human Rights Act (Hart: 2009) and Democratic Dialogue and the Constitution (OUP: 2017) and is currently co-editor, with Mark Elliott and Jack Williams, of Miller and the UK Constitution: Brexit and Beyond (Hart: forthcoming 2018).

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