It has been less than a month since Donald Trump retook the Oval Office. But with dozens of executive orders, every day has brought substantial change.
While Trump claims he has a democratic mandate to cut government waste, it is the unelected Elon Musk who has been behind the most radical changes. Musk, the world’s richest man, joined the US government as head of the new Department of Government Efficiency (Doge), which Trump established by executive order.
Trump and Doge have begun dismantling government agencies, introduced widespread recruitment freezes, and withheld billions of dollars in federal funds – including freezing foreign aid and dismantling USAid. Through Doge, Musk has also gained access to IT and payment systems in the US Treasury and other major departments.
Their actions have not been without legal challenge. A judge issued a temporary order restricting Musk from accessing the Treasury’s files due to the risk of exposing sensitive data. In response, Trump has expanded Musk’s power further, instructing government officials to cooperate with Doge.
It already appears that Trump is prepared to defy court orders related to these changes. The US is on the cusp of a constitutional showdown.
A key question for the UK is whether something similar could happen here. In theory, the answer is yes – but it would be difficult for anybody to enact.
There have been ongoing concerns, including some raised by the current government, around the size of the UK government and the budget deficit. Politicians from the Reform party are already saying that Britain needs to adopt a Musk-style approach to cut government waste.
Compared to other systems of government, UK prime ministers have almost unparalleled power to change existing, and establish new, government departments as they see fit. So it would be well within the gift of the prime minister to establish a new department like Doge – though there could be limits to its power to change things like national spending, given the need for budgetary approval by parliament.
There is also plenty of precedent for private citizens like Musk to work in the UK government. This could be as a special adviser: a temporary “political” civil servant who advises the government and is appointed under the Constitutional Reform and Governance Act 2010. Previous examples include Alastair Campbell (Tony Blair’s spokesman) and Dominic Cummings (Boris Johnson’s senior adviser). While cabinet ministers hire their special advisers, the prime minister approves all appointments.
Alternatively, civilians can be brought more directly into government as ministers. Under constitutional convention, a member of the UK government is a member of either the Commons or Lords. Someone who is not an elected politician can be appointed to the Lords (and a ministerial role) by the prime minister. Rishi Sunak did this when he made David Cameron foreign secretary, as did Keir Starmer with businessman-turned-minister for prisons James Timpson.
There have even been debates in recent years over whether this convention of government ministers needing to be members of parliament can be dispensed with, given it lacks legal enforcement. But this raises questions about how you afford parliament opportunities to scrutinise the work of such ministers, if they are not even in the Lords.
Constitutional limits
However, the kind of actions that Trump and Musk are currently undertaking could not strictly pan out the same way under the UK’s constitutional arrangements.
While it does not have executive orders in the same way as the US, there are means for the UK government to administratively act without passing legislation through parliament.
The government’s power can be exercised through orders in council via the monarch. These can either be via statutory orders (where the power has been granted through an act of parliament) or prerogative powers.
The prerogative refers to powers that government ministers have, which do not require the consent of parliament. For example, to enter international treaties or wars, or the ability to call an election.
The monarch also retains some prerogative powers – for example, to appoint or dismiss a prime minister, and to summon or prorogue (end a session of) parliament. But by convention, the monarch fulfils these functions in a ceremonial and symbolic capacity – without input in the decisions. In reality, they merely follow the advice of the prime minister on these matters.
Importantly, prerogative powers can only be used when legislation does not exist to the contrary – and the UK government cannot arbitrarily change prerogative powers or create new ones.
One way a Musk-style takeover would struggle in the UK is if a proposed change affected primary legislation and left it redundant. It has been established since 1610 that prerogative powers cannot be used to change or make law without parliament.
To give hypothetical examples: if the UK government tried to exercise its powers in a way which ran contrary to the International Development Act, failed to fulfil a legally promised government function, or went against human rights obligations, they would be doing so contrary to UK constitutional principles – not least parliamentary sovereignty, separation of powers, and the rule of law.
Should this happen, the courts can intervene. This was tested in Miller 1, the legal case over whether the prime minister alone had the power to leave the EU, or whether parliamentary approval was needed. It was decided that the government could not rely on its prerogative powers to trigger Brexit without parliament’s approval, as this would change primary law.
And, as was clear when it came to Boris Johnson’s decision to prorogue parliament, the Supreme Court will nullify government action which it deems unconstitutional.
In this sense, it is a well-established common law principle that judges will rely on the rule of law to check what the government is doing, and would view parliament as never truly intending to pass any law which would exclude that oversight. Any attempt to legislate to block courts from having that check would be an unconstitutional violation.
Here, the UK has the advantage of a strong independence of the courts. Since 2006, judicial appointments have been the responsibility of an independent commission. There is also a separate, independent selection process for the Supreme Court. This effectively bars the prime minister from changing the composition of the courts in the same way the US president can.
What if parliament went rogue?
Some may be minded that, if a reformist government had a majority in parliament and existing laws were preventing change in the UK, then it could easily change the law through an act of parliament. This was the risk of the now-defunct Rwanda plan, where the government effectively tried, through legislation, to overrule the Supreme Court and send asylum seekers to Rwanda.
Should this have continued, it would probably have faced legal challenges at the European court of human rights. Here is where efforts to remove the UK from the European convention on human rights, or to repeal the Human Rights Act, would have become consequential.
Of course, even with the strongest majorities, backbench MPs do not always vote with their government, and would be less likely to do so if the leader was attempting to do something extreme, unprincipled and unconscionable.
We would be in relatively uncharted constitutional waters if the prime minister then ignored a Supreme Court ruling. But while rarely used, there are mechanisms available to parliament in such cases to use motions of no confidence in the government to instigate change to the executive.
Unless the law is radically changed, the machinery of parliament, with the checks and balances of the Supreme Court, would make a US-style overhaul challenging – if not, theoretically, impossible. But while it is not codified into one text, the UK does still have a constitution and the safeguards that come with it – as well as hundreds of years of convention to back it up.
Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University
This article is republished from The Conversation under a Creative Commons license. Read the original article.