Stretching or Snapping an Elastic Constitution? – UK Constitutional Law Association - The Legend of Hanuman

Stretching or Snapping an Elastic Constitution? – UK Constitutional Law Association


stephanie reynolds

Elon Musk has recently utilised his extensive platform as owner of social media site X to intervene in British politics. He has labelled the UK Prime Minister ‘two-tier Keir’ in relation to allegations of police bias against white protestors during the 2024 riots, and after the Government announced changes to inheritance tax, declared that ‘Britain is going full Stalin’. Following Safeguarding Minister Jess Phillips’ decision to encourage a locally-led, rather than national, inquiry into grooming gangs in Oldham, Musk described her as a ‘rape genocide apologist’. He similarly accused Keir Starmer of being ‘complicit in the rape of Britain’ during his tenure as Director of the Crown Prosecution Service, arguing that the Prime Minister ‘must go and he must face charges for his complicity in the worst mass crime in the history of Britain’.

Of course, the use of social media to express strong political views is hardly news. Nor is concern about its use to disseminate far-right and other conspiracies a recent phenomenon. But Musk is no ordinary social media user. As the world’s richest person, and a close ally of the US president, Musk enjoys considerable offline, as well as online, influence. Crucially, the attention his posts attract draws responses from the UK’s constitutional actors. This necessitates an assessment of the shifting dynamics and changing content of a political constitution that is considerably broader than is commonly presented. Specifically, Musk’s capacity to influence constitutional operations, such as the focus of accountability efforts, raises questions about the role of high-profile private individuals within the political constitutional environment. This, in turn, poses challenges both to the political constitution’s normative underpinnings, and its established system of checks and balances, since these are principally rooted in Parliament, and the legitimacy it derives from democratic elections. These are clearly not relevant to Musk, who is neither elected nor even resident in the UK.

The UK’s famously flexible political constitution has, however, adapted to changing circumstances before. It might then simply draw on its customary elasticity to adapt to the arrival on the constitutional scene of new extra-parliamentary players like Musk. Conversely, the nature of Musk’s posts, his elevated societal position, and his capacity to influence democratic debate directly via his ownership of X might risk stretching the UK’s elastic constitution to snapping point.

Having evidenced, first, that Musk is an operator of sufficient significance to warrant closer constitutional analysis, this post contemplates, second, how this came to be. In doing so, it contributes to the third wave of political constitutionalism, which invites constitutional scholars to look beyond the constitution’s formal institutional arrangements and to reflect, additionally, on the political and societal contexts that shape its functioning realities. These conditions, which ‘enable and stifle’ the political constitution should be explicitly understood in constitutional terms. The post’s assessment of the conditions that have brought Musk to increased constitutional prominence informs its examination, third, of the extent to which the political constitution, as an elastic constitution, is able to withstand his often questionable conduct.

Assessing Musk’s impact on the UK’s political constitutional environment           

The sometimes bizarre nature of Musk’s social media posts makes it tempting to disregard the possibility of his having any serious impact on the UK’s constitutional operations. Yet a closer consideration of his interactions with its established constitutional actors, alongside his attractiveness to sections of the voting public, suggests this would be short-sighted. For instance, various members of the public opposed to the Terminally Ill Adults (End of Life) Bill tagged Musk on X during the Commons vote on the matter. Musk did not intervene. Indeed, he has indicated that he is in favour of legalised assisted dying in certain circumstances. Nonetheless, the decision by some X users to try to engage him arguably reflects a belief that his sheer influence makes him both a representative alternative to those sitting within the legislature and a means of representation to legislators. Given his ability to generate hundreds of thousands of social media ‘likes’, it is easy to see why this is considered a viable option.

Certain high-profile political figures also consider it wise to work with, rather than against, Musk. Even after Musk had been accused of fanning the flames of the 2024 riots, and at a time when he was labelling the UK a Stalinist state, Labour grandee Peter Mandelson was publicly calling on Starmer to ease tensions with the X owner for unavoidable pragmatic reasons. Mandelson declared Musk ‘a sort of technological, industrial and commercial phenomenon [who]…it would be unwise in my view for Britain to ignore… You’ve got to get over it…he’s got to be reintroduced to the British government’. While Starmer has not opted for this approach, he still recommended Mandelson as ambassador to Washington; a role that could involve engagement with Musk, who is part of Trump’s administration, as head of the Department of Government Efficiency.  

Beyond these more subtle Government responses, constant media coverage of Musk’s interventions can divert political attention away from pertinent issues towards more sensationalist matters. This can impact upon the execution of constitutionally essential accountability. Following Starmer’s speech on his Government’s strategy for reducing NHS waiting lists, for instance, he was nonetheless asked to comment on an X poll run by Musk as to whether ‘America should liberate the people of Britain from their tyrannical government’. Starmer refused to comment but was asked about Musk again, this time regarding the potential dangers Musk’s posts about Jess Phillips posed to her safety. Despite asserting that ‘on the question of Elon Musk, I think most people are more interested in what is going to happen with the NHS frankly’, Starmer was ultimately forced into an indirect response: ‘those that are spreading lies and misinformation as far and wide as possible are not interested in victims, they’re interested in themselves. They are cheerleading Tommy Robinson, a man who went to prison for nearly collapsing a grooming case’.

Critically, although the media indeed reported on Labour’s waiting list reduction strategy, headlines generally centred on Starmer’s response to Musk. A subsequent interview with the Health Secretary also inevitably included questions about the X owner. More broadly, while the Government’s decision to launch a three-year independent commission into adult social care was criticised for pushing this pressing matter into the ‘long grass’, it quickly became chip paper in the face of continued press and parliamentary attention to the question of grooming gangs. This despite the fact that the chair of an independent inquiry into child sex abuse, which had taken place as recently as 2022, had publicly stated that a further inquiry would ‘certainly cause delays’ to the implementation of its recommendations. ‘Galvanised’ by Musk, the Conservative opposition concentrated its efforts on tabling an amendment to the Children’s Wellbeing and Schools Bill, despite having rejected similar calls when in power themselves. Importantly, this amendment would not have brought an inquiry into existence but would have ‘killed the government’s legislation, the aim of which is to reform things like the children’s care system and raise educational standards in schools’.

As expected, given Labour’s large parliamentary majority, the amendment was defeated. The media underscored, however, that it was ‘largely symbolic’; its role being to contribute to a broader political pressure ‘following days of headlines after comments by Elon Musk…’ Since then, although it has resisted a full u-turn, the Government has announced a ‘national review’ of grooming gang evidence, alongside funding for five Government-backed local inquiries into child sexual abuse. Ministers have ‘utterly rejected’ any notion that this policy shift is down to Musk. The BBC’s chief political correspondent, Henry Zeffman, thinks differently: ‘we should not lose sight of the fact that there is no chance [Home Secretary, Yvette] Cooper would have been standing up in the House of Commons [announcing a national review] today if Elon Musk hadn’t taken an interest in it…and that remains an extraordinary…fact that I just think we need to continue to reflect on because it could well be heralding…a whole new way in which our information and political systems interact’.

What is driving Musk’s constitutional prominence?

In many ways, the how and why of Musk’s constitutional impact seem intrinsically obvious. He is, after all, the world’s richest person, owner of one of its largest social media platforms, and seemingly the right-hand man of the US president. Yet the significance of these factors is arguably under-considered in the scholarship. As Goldoni and McCorkindale point out, much of the political constitutionalist literature has been focused on making the normative case for political constitutionalism often by juxtaposing it with legal constitutional models. The emphasis has therefore been on Parliament’s democratic legitimacy, the equality of input that elections provide to citizens in deciding who sits there, the possibility of removing at the next election those who do not satisfy the citizenry, and the legitimacy and practical opportunities for enforcement that this grants to the Opposition in holding Government to account.

None of this applies to Musk. Yet as we have established, he has achieved a constitutional impact through utilising political tools in a broader sense of the term. His social media platform, the huge number of followers he attracts, alongside his offline societal position enable him to generate the political heat necessary to force responses from constitutional actors (or, as indeed, to become one himself, as he has in the US context where, as Head of the Department of Government Efficiency he has already shut down the Government’s 63-year-old foreign aid agency USAID). This clear disconnection between the normative expectations of political constitutionalism and Musk’s observable effects on the UK’s political constitution, in practice, requires constitutional scholars to think reflexively, rather than normatively, about its component parts. This speaks to what Goldoni and McCorkindale term the ‘third wave’ of political constitutionalism, which recognises that the political constitution ‘is at work during parliamentary proceedings but surely not only there’. An important task for third wave scholars, therefore, is to ‘look beyond formal institutional arrangements towards the many varied and unpredictable spaces for political action that – as political constitutionalists – we ought to register in explicitly constitutional terms’ in order to determine ‘precisely what is political about the political constitution’ and which ‘conditions and contexts enable and stifle it’.

Though this is a relatively emergent branch of scholarship, our discussion of Musk is clearly not the first consideration of extra-parliamentary/judicial constitutional players. The media has long been considered the fourth estate of power. Meanwhile, Knox argues convincingly that trade unions were constitutional actors during the post-War era. Crucially, he explains that this was the result of conducive ‘legislative and material conditions’, including the social-democratic model pursued during the post-War consensus and the legislative interventions of the Atlee Government, which strengthened unions’ societal power and influence. The emergence of the media as a constitutional actor is down to a similar combination of legislative and material contributors. The invention of the printing press, the subsequent appearance of newspapers, the relaxation of Government controls over printed materials, the legal recognition of the freedom of expression, the arrival of advertising as a means of financial independence, and growing literacy when suffrage remained limited all contributed to the media’s ability to establish for itself what Schultz calls a ‘crucial’ role as an ‘independent institution within the political system’.  

A cocktail of material and legislative factors has likewise contributed to Musk’s constitutional impacts. The first is the shift, in the 1980s, from the social-democratic approaches that had underpinned the constitutional strength of the trade unions, towards a neo-liberal model with its promotion of the individual, of capital accumulation, and of free markets. Amongst the outcomes of this change has been the proliferation of billionaires, the associated concentration of wealth in relatively few individuals, and the globalisation of their corporate activities. This gives such individuals huge economic, and therefore political, sway. Many wealthy individuals and corporate entities are far from averse to threatening to take themselves, their (variable) tax contributions, and their companies’ employment opportunities elsewhere if their policy demands are not met. Arguably, the aspirational individualism of neo-liberalism, and its ‘invisible hand’ approach to regulation, respects rather than condemns such conduct. Meanwhile, the globalisation that accompanies free trade has fostered an environment conducive to interventions from billionaires across the Atlantic.

A second contributor has been the advent of social media in the mid-2000s. This transformed the Internet user from consumer to participant, appearing to unlock the Web’s democratising potential. Ordinary people or ‘networked individuals’ could now disseminate their political views to the world at large. Not only was there no need for parliamentary or media intermediaries but these estates could be held to account by this ‘fifth estate’ of power. With certain social media platforms dominating globally, public debate was also internationalised. While Elon Musk’s keen interest in UK matters remains noteworthy, the idea that accountability might emanate from beyond British borders is less surprising when, regardless of location, social media users can and do discuss wide-ranging issues from immigration to climate change with each other across virtual space.   

There is, of course, appreciable truth to claims about the democratising possibilities of social media. Nevertheless, there is also growing concern about the algorithmic creation of filter bubbles, which ‘affects users’ control over the information they receive and generate’. Moreover, whether because of a neo-liberal preference for minimal state regulation, governmental decisions to facilitate technology companies in order to assert global jurisdiction by proxy, or because it creates space for behind-the-scenes state interventions that might otherwise violate human rights obligations, social media companies have until recently been left to regulate content through their terms of use. This has sparked concern about over-removal as these can be ‘vague and opaque’ as well as more far-reaching than would be possible if these free speech interventions came from the state.

When it comes to Musk, however, who is X’s owner and has over 200 million followers, it is hard to imagine that algorithmic profiling, broad terms and conditions and contentious methods for their implementation, such as shadow banning, affect his posts in the same way as those of Joe Public, even if some of his posts have been removed. These factors, combined with his offline profile, perhaps make Musk the ultimate case in support of the argument that ‘the attention economy of social media is highly unequal’. This is without mentioning that, despite Musk’s presentation of X as ‘the global town square’, an appreciable number of media outlets have reported potential interference with the visibility of X accounts critical of its owner. Such influence over public debate prompts us to ask whether the political constitution is able to provide checks and balances on the constitutional activities of the world’s richest man.

The elastic constitution: expanding and contracting in response to Musk’s activity?

As an international, extra-parliamentary constitutional player, the underlying threat of electoral removal that underpins the political constitution’s standard checks and balances is empty when it comes to Musk. Since he largely relies on X to project his political views across the Atlantic, we might ask whether state regulation of social media could rectify this. In response to hate speech concerns, the UK has recently moved away from its laissez-faire approach in this regard with the enactment of Online Safety Act 2023. Yet, when it comes to dis/misinformation, this largely continues the UK’s reliance on social media platforms’ enforcement of their own terms of service, albeit with one potentially relevant new offence, the inclusion of provisions on media literacy and the creation of an advisory committee on disinformation. Some have questioned whether this goes far enough when it comes to tackling mis/disinformation. Others are concerned about the heightened risk of over-removal and free speech restrictions. The Musk example introduces additional challenges, including as regards tech companies’ reported tendency to place ‘greater conditions on the public’s freedom of expression than that of the powerful’. In any case, Musk often walks a fine line between hate speech, dis/misinformation, and political expression, reflecting a more general problem with any attempt to regulate ‘fake news’. His interventions on Jess Phillips were unacceptable in putting her safety at risk. Ultimately, however, numerous Labour politicians have declared a national inquiry into grooming gangs a necessity.

Do we then default to ‘social accountability’ as a broader form of political check? As Ojala et al explain ‘whereas political and legal systems represent formal mechanisms of accountability…authorities are also held accountable through more informal communicative interactions in public forums… Social accountability relies on the assumption that the public sphere operates as “the court of public opinion”, where different kinds of actors present public claims against powerful institutions’. As a participant in public debate, Musk contributes to this accountability type but, as a powerful individual capable of constitutional impact, he is also subject to it. The same authors elaborate: ‘as the public arena has expanded to include a much larger number of actors, accountability relations have become more complex and authorities are often forced to deal with multiple and conflicting expectations’. Thus, ‘part of the dynamic of social accountability is public authorities having to decide how to respond to criticism, paying attention to certain accountability agents while disregarding others’, including Musk.

As a reality of the contemporary political constitution, this juggling act is visible in Mandelson and Starmer’s public reactions to Musk’s activities and the media’s reporting of these interactions. Evolving approaches to accountability, in response to Musk and to social media more generally, are also evident in the arrival of misinformation media correspondents, the summoning of social media executives to parliamentary select committee hearings, and rejuvenated emphasis by political actors on the importance of ‘trusted voices’, including the traditional media, to public debate.

While it was argued above that the media’s Musk fixation has undermined scrutiny of wider Government decision-making, its reporting of Musk’s own conduct – which recently included appearing to give a fascistic salute – has admittedly also exposed him to criticism, which contributes to his social accountability. A YouGov poll indicates largely negative public opinion towards Musk in the UK following his interventions on grooming gangs. Meanwhile, some newspapers, police forces, and universities have suspended their X accounts, citing hate speech and disinformation concerns.  

This suggests capacity within the UK’s constitutional environment to expand and contract in response both to the arrival of novel types of constitutional player and to the need for checks and balances on their conduct. However, its dependence principally on social accountability to hold extra-parliamentary figures to account underscores the crucial importance of healthy democratic debate; itself increasingly affected by social media. The Government, struggling to strike a balance between regulation and censorship, continues to lean into platforms’ terms of use. Meanwhile, their billionaire owners, who took centre-stage at Trump’s inauguration, denounce state intervention and promote the relaxation of their moderation policies in the name of free speech whilst remaining rather more quiet on the commercial drivers of ‘fake news’. Without radical reconsideration of the neo-liberal conditions that drive their growing political dominance – which brings with it the power to influence policy, to (mis)direct accountability, and to shape the very public debate that keeps these extra-parliamentary players in check – the UK’s elastic constitution could well be stretched to breaking point.  

Stephanie Reynolds, Senior Lecturer in Law, University of Liverpool

(Suggested citation: S. Reynolds, ‘Elon Musk: Stretching or Snapping an Elastic Constitution?’, U.K. Const. L. Blog (4th February 2025) (available at https://ukconstitutionallaw.org/))


Share this content:

I am a passionate blogger with extensive experience in web design. As a seasoned YouTube SEO expert, I have helped numerous creators optimize their content for maximum visibility.

Leave a Comment