One of the striking features of Britain’s unwritten constitution is how it relies on various people keeping their opinions to themselves. The monarch, the Speaker of the House of Commons and senior judges must all avoid expressing political views in public – or even in what one might call semi-private. It’s not their right to remain silent; it’s their responsibility.
The royal family is expected to stay out of politics from birth, the Speaker is an MP who puts aside partisanship when he or she is dragged to the chair, and judges must show that they are applying the law, not advancing their own agenda. Any appearance of partiality is toxic, calling into question either their own survival or that of the office they hold. Yet all three groups are currently struggling with this responsibility to remain silent.
It is a cliché to say that the Queen has successfully stayed above politics, but it is also true. The reason that reports of her views on the European Union caused such a frisson in the run-up to the referendum is that it is so rare to get even a hint of what she believes. But the heir to the throne is not so restrained. Prince Charles’s views on global warming, the Chinese government and the refugee crisis are all well known. None of these subjects is free from political controversy.
Prince Charles looks like a model of restraint, though, in comparison with John Bercow, the Speaker of the House of Commons. Bercow has been a good Speaker in various ways. He has been keen to see the legislature hold the executive to account. But he has often been too eager to inject himself into the proceedings of the House (notably, he is the only Speaker whose official portrait shows him addressing the chamber). His decision to denounce the President of the United States for ‘racism and sexism’ from the Chair was spectacularly ill-judged.
Bercow had taken insufficient soundings from across the House to speak for the Commons on such a matter — and should have remembered William Lenthall’s injunction, quoted by Charles Moore last week, that the Speaker of the Commons has ‘neither eyes to see nor tongue to speak in this place but as this House is pleased to direct me’. He had made no attempt to convey his concerns privately to the government before going public. And he has had to apologise for not having discussed the matter with the Lord Speaker beforehand. In short, his outburst was premature and unnecessary. Adding to this controversy was the news that Bercow told a group of students that he had voted to Remain in the EU referendum. This is not the most troubling part of what he said, though: the referendum was, after all, an extra-parliamentary event. More problematic was that he then opined on which bits of EU law he would like to see Britain keep, post-Brexit. This means that the Speaker has directly expressed his view on a matter that he knows will soon come before the House.
It is hard to see how MPs involved in these debates can regard him as impartial. Who he chooses to speak, and which amendments are selected for debate, will now all be seen through the prism of Bercow’s own views. A more self-aware individual would see how ill this fits with his role.
Another risk to the constitution in recent years has been the issue of how many more political cases are coming before the courts. This, as Jonathan Sumption — who now sits on the Supreme Court — has pointed out, is not an entirely healthy development. But it does make it all the more important that judges maintain not only impartiality, but the appearance of it.
The recent Supreme Court case on Article 50 showed the importance of this. Baroness Hale’s decision to offer a commentary on the case, including the suggestion that the European Communities Act might need to be repealed before Article 50 could be invoked, before it came before the court, was naive at best. It showed a failure to appreciate how her words would be seen, and the sheer level of media interest in the matter. However, the Supreme Court ended up handling the Article 50 case well. Its eventual verdict was balanced and correct.
Calls for confirmation hearings for the Supreme Court are misguided, precisely because they would require judges to give their opinions on matters that might well come before them. But those who sit on the court would do well to remember that commenting publicly on these questions has the same effect, and can undermine public confidence in the judiciary.
It is tempting to regard the troubles with Prince Charles and Bercow as simply questions of personality. We don’t, for instance, know much about Princess Anne’s politics. And if the Deputy Speaker Lindsay Hoyle were moved up one, there wouldn’t be an issue: he wouldn’t feel the need to grandstand in the way the current Speaker does. Indeed, even Bercow’s allies admit that having someone who loves to be the centre of attention as Speaker is not ideal. One tells me that recent events have put the final nail in Chris Bryant’s chances of becoming Speaker because he is ‘seen as offering more of the same, and it is quite a rich confection’.
But the responsibility to remain silent is more demanding these days. There are fewer places that are truly private now, which means that discretion must be maintained for longer. And, in an era when people send pictures of their breakfast to virtual strangers, asking people to keep their opinions to themselves is more of a burden than it was.
The system, though, relies on discretion. A hereditary monarchy is acceptable to most people in this country because the monarch doesn’t use power and position to influence politics. A monarch whose views are known on a whole series of questions would call that balance into question. Equally, acceptance of the Speaker’s rulings in the House of Commons relies on MPs regarding the Chair as impartial. Any sense of bias makes it much harder to keep order in the chamber.
This country’s institutional stability is one of its great strengths. But it does require some people to maintain a judicious silence. If they cannot, the constitution will be thrown out of kilter.