Britain’s dangerous game of constitutional hardball

Back in April 2022, when Boris Johnson was still Britain’s prime minister, he announced a plan that was immediately contentious: to send asylum seekers on one-way 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 stay in the small African country, was so out of step with global norms, and appeared so obviously in breach of Britain’s commitments under humanitarian law, that many political commentators thought Johnson was trying to engineer a failure he could later blame on left-wing activists and the courts.

Two prime ministers have stepped down since then, but the plan has remained central to the governing Conservative Party, despite a series of legal challenges.

Last month, Britain’s Supreme Court rejected the proposal, finding that Rwanda was not a safe country for refugees, and that therefore sending asylum seekers there would, as predicted, violate international and British law.

Rather than letting the matter rest, Prime Minister Rishi Sunak doubled down. After his government signed a treaty with Rwanda that it claims will address the court’s “concerns,” he introduced emergency legislation stating that actually Rwanda is safe for refugees, and prohibiting courts and immigration officials from finding otherwise.

His new bill — a sort of legislative cry of “nuh-UHHH” — passed an initial vote in Parliament on Tuesday night, and now goes to the House of Lords for review.

Many experts believe the bill will ultimately fail. But there is a broader story here. The strange, reality-bending attempt to override the court’s findings suggests that Britain could be following the United States, France, Israel and other nations in a trend that experts say poses a threat to democratic stability: governments that play “constitutional hardball” to test the outer limits of the law.

A crucial factor in any healthy democracy is restraint: what governments could do, but don’t. This kind of forbearance often goes unnoticed until it is threatened by partisan 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, as has happened to some democracies in Europe and South America in the past.

So when governments begin to play “constitutional hardball,” a term coined by Mark Tushnet, a Harvard legal scholar, that is a warning sign for risks of democratic backsliding. And it is one that is flashing in countries around the world.

In ‘constitutional hardball,’ democracy doesn’t win

“Look at any failing democracy and you will find constitutional hardball,” Levitsky and Ziblatt wrote in a 2018 guest essay in the Times.

In Venezuela in 2004, for example, when the country’s high court tried to check the authority of President Hugo Chávez, the president and his allies in congress added a dozen seats to the court and packed them with friendly judges, neutralizing the court’s power as a check on Chávez’s agenda. That wasn’t illegal, but it did violate norms about the role of the courts and the way that the other branches of the state should exercise their power.

More recently, in Hungary, Viktor Orbán used his party’s majority to rewrite the country’s constitution, and employed a host of other initiatives to pack the judiciary with loyalists. Though the moves were legal, they undermined Hungarian 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 drive 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 a belief that the political opposition is so dangerous and untrustworthy that it must be kept out of power at all costs — encouraging constitutional hardball. And so the cycle continues, and intensifies.

That undermines democratic stability, said Julien Labarre, a researcher at the University of California, Santa Barbara who has studied affective polarization.

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

In recent years, such tactics have become more common in countries once seen as stable democracies.

In the United States, for instance, increased use of tactics like filibusters, forced government shutdowns, and executive orders have reinforced an at-all-costs political culture that has left the federal government gridlocked and often unable to perform once-routine functions like approving nominations and passing budget bills.

In France, President Emmanuel Macron used a set of unusual legal and constitutional maneuvers to pass an unpopular pension reform earlier this year. “While these tactics are all individually legal, their strategic and joint use sets a dangerous precedent for French democracy,” Labarre wrote in May. “The French government’s actions echo the recent drift of U.S. partisan politics toward constitutional hardball territory.”

British restraint, under pressure

Restraint is unusually central to British democracy. A series of “constitutional conventions,” nonlegal rules of self-restraint about how power can be exercised, governs both its political culture and much of the day-to-day functioning of its democratic system.

Restraint is particularly important because the country does not have a written constitution, and does have a hereditary monarch who could technically exercise far more political power than the country’s norms allow. For instance, the King nominally has the power to appoint the Prime Minister, but by constitutional convention the monarch “chooses” the person who can command a majority within Parliament — i.e. the leader of the party that won the last election.

And although the King is the head of state and holds 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 norms of restraint have come under increasing pressure. Boris Johnson, who was Prime Minister from 2019 to 2022, tried to use hardball tactics in his efforts to pass Brexit legislation, including by asking the Queen to suspend Parliament in 2019 in order to prevent it from blocking his attempts to take the country out of the European Union without a negotiated agreement on how to do so. After an emergency hearing, the Supreme Court found that this suspension was unlawful and declared it void.

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

Sunak’s Rwanda legislation is testing those norms further. It is unusual for the government and courts to clash so directly, and even more so for the government to attempt to directly override a judicial decision in this manner. Even if the legislation is ultimately struck down because it is ruled to violate the independence of the judiciary, or the separation of powers — as some experts have argued it does — that would still, in its own way, represent an episode of hardball tactics, with each branch testing the limits of its authority over the other, rather than exercising restraint.

That the legislation concerns human rights protections is another warning sign, Labarre said. Protection of human rights and civil liberties are one of the criteria used to measure the health of a democracy, making this legislation an even more significant test of democratic norms.

“You have forms of constitutional hardball that are inherently corrosive to democracy,” he said. “And I think what’s happening in U.K. right now is one of those cases.”