There’s a bad habit in British politics: rather than fix bad laws, we make worse ones.
This week, Deputy Prime Minister Angela Rayner announced her intention to establish a ‘council on Islamophobia’, that would ‘provide advice to ministers on tackling Islamophobia’. This law is almost a direct product of the 2010 Equality Act, which made the unforgivable mistake of submitting our equal legal standing as British citizens to the legal sanctification of identity.
In turn, as they always do, when these identities clash, rather than re-asserting the legal equality provided for by the historic British constitution, the choice has been made to resolve this bad law with an even worse one. A bad law, it must be remembered, designed to fix the other bad laws of the 1975 Sex Discrimination Act, the 1976 Race Relations Act and so on.
Compare this to an emerging trend in Donald Trump’s administration, which has made a radical departure from nearly 50 years of governance. Tearing up the Republican playbook, Trump is pushing economic hard power to its limits, ending and actually reversing policies of previous administrations and delivering rapidly on his promise to end the border crisis.
Before the eye-watering flurry of executive orders that he signed on his first day, however, Trump’s inauguration speech had a strange aberration. Alongside futuristic visions of colonising Mars, Trump reached back into the past to invoke a law from the era of the United States’ founding, to address the contemporary crisis of immigration: the 1798 Alien Enemies Act. Still on the statute books, referring to the 237-year-old law should be heard as a clear message: you don’t need to invent new laws where old ones work.
Shortly after, Senator Mike Lee made waves on X for suggesting that the drug-running cartels that menace the southern US border be resolved by issuing Letters of Marque. A product of the era of privateers and pirates, Letters of Marque are formal approvals for private companies or entities to target enemies of the state (then Crown) and split the profits of any loot (or bounty). Not issued in the USA since the late-19th century, Letters of Marque were championed by Mike Lee as lowering costs for the US while empowering US citizens.
The efficacy of Letters of Marque is beside the point: what matters is that their issuance is legal under the first Article of the US constitution.
The problems facing America are remarkably analogous to the British setting; the political system, less so. The US has a head of state infinitely more powerful than the British monarch, especially so these days. In fact, as Eric Nelson pointed out in ‘The Royalist Revolution’, one of the ironies of America’s founding is that the victorious Hamiltonian vision of the presidency created a more powerful executive than George III ever was (or indeed could have been).
Conversely, the British government as a whole is far more powerful than the US government. So much so that Lord Hailsham, two-time Lord Chancellor, called it an ‘elective dictatorship’. There is no constitutional court in Britain, and so no law that Parliament makes can be called ‘unconstitutional’. In many ways, under Richard Bellamy’s definition of political constitutionalism, Parliament is the constitution.
At least, in theory. In practice, we have introduced bad laws to our constitutional architecture that make governance difficult, because they prevent the constitution from operating as it should. The 1998 Human Rights Act, the 2005 Constitutional Reform Act, the 2010 Constitution and Governance Act, the devolution acts (the 1998 Scotland Act and 1998 Government of Wales Act), the 2010 Equality Act and other legislation designed to ‘modernise’ all work in a web of legal constraints that have damaged the constitution.
But the lesson of the new Trump administration must be heeded: you do not need more laws to address the deficiencies of existing ones. On the contrary: you just need to get rid of them. Increasingly there are calls for a Great Repeal Bill, to undo all of the legal tampering of the Blair years and restore the British constitution to its historical operation.
The temptation of any new right-wing government will be to attempt to ‘fix’ these bad laws. But they are the source of the problem, and cannot be amended on that basis. The temptation must be resisted, and instead the ancient laws of our constitution that have proven themselves to work must be restore. Perhaps we should be calling for a Great Restoration Bill.
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